Health Reform WK-EDGE Arbitration out, quality in under LTCF rule
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Monday, October 10, 2016

Arbitration out, quality in under LTCF rule

By Bryant Storm, J.D.

Changes under a new CMS Final rule are designed to provide consumer protections, improved care quality, and increased safety for residents of long-term care facilities (LTCFs). The new requirements—which represent the first significant revision of LTCF conditions of participation (CoPs) for Medicare and Medicaid since 1991—are aimed at reducing unnecessary readmissions and infections, improving LTCF staff training, and enhancing care planning. The Final rule strengthens the rights of LTCF residents by prohibiting the use of arbitration agreements in LTCF contracts (Final rule, 81 FR 68688, October 4, 2016).

LTCF care planning. There are over 15,000 LTCFs participating in the Medicare and Medicaid programs. Those facilities provide care for nearly 1.5 million residents. The revision of LTCF CoPs is devoted, in part, to CMS’ commitment to focus on person-centered care for LTCF residents. As part of this, under the Final rule, LTCFs must develop and implement a baseline care plan for each resident, within 48 hours of their admission. The care plan must include the instructions needed to provide effective and person-centered care. The new regulations also add a nurse aide and a member of the food and nutrition services staff to the required members of the interdisciplinary team that develops the comprehensive care plan.

Arbitration prohibition. One of the Final rule’s most significant changes is a new provision impacting the rights of residents and families in the event that a dispute arises with a LTCF. Historically, LTCFs relied on binding arbitration clauses that patients agreed to when admitted to the facility. Under those clauses, a resident was required to resolve disputes with the facility through the use of arbitration, as opposed to the judicial system. However, under the Final rule, effective November 28, 2016, LTCFs are prohibited from using pre-dispute arbitration agreements. In other words, LTCFs will no longer be able to require residents to sign binding arbitration agreements as a condition of admission to the facility.

ACA programs. The Final rule implements a number of Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) requirements. For example, Section 6102 of the ACA established a new Section 1128I of the Social Security Act (SSA). Under that section, LTCFs are required to have in operation an effective compliance and ethics program designed to promote quality care and prevent and detect criminal, civil, and administrative violations. The same section also required CMS to develop a quality assurance and performance improvement (QAPI) program focused on systems of care, outcomes, and services for residents and staff. The Final rule implements these requirements through regulations.

Staffing. Additionally, Section 6106 of the ACA, added Section 1128I(g) to the SSA, requiring LTCFs to electronically submit to HHS direct care staffing information based on payroll and other verifiable and auditable data in a uniform format. Additional changes to staffing requirements under the Final rule include an obligation to investigate and report all allegations of abusive conduct and a prohibition on employing individuals who have had a disciplinary action taken against their professional license by a state licensure body as a result of a finding of abuse, neglect, or mistreatment of residents.

Other requirements. The Final rule also imposes obligations on LTCFs to:

  • develop an Infection Prevention and Control Program (IPCP), including an infection prevention and control officer and an antibiotic stewardship program with antibiotic use protocols;
  • construct, re-construct, or newly certify facilities that accommodate no more than two residents in a bedroom;
  • employ a director of food and nutrition services, whose job it is to provide each resident with a nourishing, palatable, well-balanced diet that meets his or her daily nutritional and special dietary needs, taking into consideration the preferences of each resident;
  • have a pharmacist review a resident’s medical chart during each monthly drug regimen review; and
  • provide necessary behavioral health care and services to residents, in accordance with their comprehensive assessment and plan of care.

FederalRegisterIssuances: FinalRules AgencyNews FraudNews MedicaidNews ProgramIntegrityNews QualityNews ReportingTransparencyNews NewsFeed

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