Category Archives: Nursing Home Planning

Nursing Home Ratings: Who Can You Trust?

July 31, 2019

courtesy of Elder Law Answers:

By Richard Eisenberg

(An update on the following Next Avenue story, which appeared in March 2019)

On June 3, 2019, Sen. Bob Casey (D-Pa.) and Sen. Pat Toomey (R-Pa.) released a report called Families’ and Residents’ Right to Know: Uncovering Poor Care in America’s Nursing Homes. It included a list of nearly 400 nursing homes around the country where inspectors found serious ongoing health, safety or sanitary problems but whose names had not been publicly disclosed by the government. These nursing homes, with a “persistent record of poor care” do not appear on Medicare’s Nursing Home Compare site with a yellow triangle icon resembling a “caution” sign the way other homes, in the government’s Special Focus Facility program, do. The reason, according to the report by Senators Casey and Toomey:”a result of limited resources” at the Centers for Medicare and Medicaid Services.

You probably saw the viral Facebook post by the Texas man who said he planned to move into a Holiday Inn rather than a nursing home because it would cost  less. That’s a radical idea, and not an especially smart one. But with the average annual cost of a private room in a nursing home topping $100,000, according to Genworth, it pays to do diligent research to find a facility for your parent. And that means looking at nursing home ratings.

This type of detective work can be especially helpful if your mom or dad live in a rural part of the United States. As The New York Times reported this week, nursing homes in those places are increasingly shutting down. More than 400 rural nursing homes have closed or merged over the past decade, the Times said. That means families are being forced to expand their search for nursing homes just to find some.

What Is a Nursing Home?

Before I describe the Medicare and Yelp rating systems, a brief definition:

Nursing homes generally provide nursing care, meals, assistance with everyday activities and rehab services.

Assisted living facilities, by contrast, focus on helping residents with daily living activities and don’t offer as much medical care.

Medicare and Yelp Ratings of Nursing Homes

Both Medicare and Yelp rate nursing homes (sometimes called skilled nursing facilities) on a one-to-five-star scale. Medicare’s ratings of facilities it regulates are in the Nursing Home Compare part of the Medicare.gov site. The ones on Yelp show up if you do search for them with that online service.

But the two types of ratings are done very differently. So much so that Anna Rahman, an assistant professor at the USC Leonard Davis School of Gerontology who has studied them, recommends reading the Medicare reviews as well as the Yelp reviews to get a complete picture.

Rahman and her fellow researchers looked at 51 Yelp-rated nursing homes in California; they previously reviewed the Nursing Home Compare tool.

“We found the Yelp scores did not align well with the scores on Nursing Home Compare,” Rahman told me. “There are lots of possible reasons.”

Why the 2 Types of Nursing Home Ratings Are So Different

The biggest one: Medicare’s Nursing Home Compare star ratings measure facilities based on quantifiable data. Yelp’s reviews are more personal and qualitative. Rahman and her colleagues found that most Yelp reviews commented on “intangibles” like staff attitudes and responsiveness.

Put another way, Medicare can help show how well a nursing home is run and Yelp can show what nursing home residents, or their families, say it’s like to live there.

The Medicare Nursing Home Compare ratings are geographically comprehensive. When I looked for facilities near where I live in New Jersey, I received 160 ratings. (You can modify your search by number of miles, the name of a nursing home, star ratings and whether the facility accepts Medicare or Medicaid.)

By contrast, it’s harder to find many Yelp ratings for a particular area. And even if a nursing home is rated on Yelp, odds are there won’t be many reviews. When I did a Yelp search for nursing homes near me (I found 22), most had fewer than five consumer ratings. They rarely had more than eight.

How the Nursing Home Ratings Are Done

Nursing Home Compare gets its data from three sources: the federal government’s health inspection database; a national database of resident clinical data and Medicare claims data.

Medicare requires on-site inspections every 12 to 15 months. The nursing homes themselves typically report the staffing and quality measures. Critics believe some nursing homes game them.

To arrive at a star rating for a nursing home, Medicare starts with the health inspections rating, then adds a star for a good staffing rating or subtracts one for a one-star health inspections rating. Next, Medicare adds a star if the quality of resident care rating is five stars and subtracts one if that rating is just one star. And if the health inspections rating is just one star, the overall Nursing Home Compare rating can’t be upgraded by more than one star based on the staffing and quality of resident care ratings.

At Yelp, anyone can post a review based on any criteria he or she chooses to use.

When Rahman and her fellow researchers compared Medicare and Yelp nursing home ratings, they often found four or five stars on one but not the other. That’s not because one of the services is wrong; it’s that the raters rate different things.

An Expert’s Take on the Medicare and Yelp Ratings

Rahman is “frustrated” that Medicare has no consumer voice in its ratings system “even though we are supposedly moving to a patient-centric, family-directed health care system.”

Her advice when using its ratings: look for nursing homes that fare well in each of Medicare’s three broad measures: health inspections, quality of resident care and staffing.

“If I saw that a nursing home got five stars for quality measures, but two on staffing and two on health inspection, I’d move on,” she says. “I’d assume they were lying about quality. You can’t get great quality care when your staffing score sucks. You need staff to provide that care.”

Rahman also says the Yelp platform “has its own set of flaws,” although “they allow well-intended consumers to express an opinion about services they have been receiving.” But, she adds, family members often write these reviews. “And [loved ones who are] the residents, don’t necessarily agree. They often disagree.”

Merging Medicare’s Nursing Home Ratings With Yelp’s

She thinks “a nice solution” would be if Medicare and Yelp collaborated, because “people would like a Yelp-like score” on Nursing Home Compare.

“I don’t think it will happen,” says Rahman.

So for now, if not forever, check out nursing home ratings from Medicare and Yelp. Then be sure to visit facilities you’re considering to see for yourself. And don’t be shy about asking questions of administrators or staff (the Medicare Nursing Home Checklist can help).

With the steep cost of nursing homes, and often an urgency to locate a facility, you can’t afford to be.

Nursing home care cost significantly outpaces general inflation and medical care prices

July 30, 2019

NAELA eBulletin:

WASHINGTON — One of the largest studies on out-of-pocket costs for nursing home care finds prices are high and rising faster than other medical care and consumer prices, reports a team of health policy researchers.

Their study, published in Medical Care Research and Review, reviews nursing home prices in eight states between 2005-2010 and uncovers out-of-pocket prices that increase significantly beyond normal inflation and inflation in medical care prices.

For example, annual out-of-pocket costs for nursing home care increased as high as 30% in California during the study period.

The study also finds substantial price variation across states. In 2010, at an average of $131 a day (about $47,800 annually), Texas had the least expensive nursing home out-of-pocket cost, while New York State, at $334 daily ($121,910 a year) had the most expensive.

The study also finds different prices between nursing homes after adjusting for staffing levels and geographical difference.

The for-profit nursing home chains charged the lowest prices and nonprofit nursing home chains provided the most expensive care. The price differential between for-profit chains and nonprofit chains is about $4,160 annually, or equivalent to 6.2% of the average price of for-profit nursing homes. However, there is no statistically significant difference in prices between for-profit and nonprofit independently operated nursing homes.

The researchers also find that areas with higher market concentration of nursing homes leads to higher prices. Nursing homes that are near capacity limit also charge more than nursing homes that have more rooms available.

The study aims to provide more transparency of the out-of-pocket prices of nursing home care. “Not many people have those kind of resources, and so it is important to understand how fast prices grow and how they vary,” says the study’s lead author, Sean Huang, PhD, MA, assistant professor in the Department of Health Systems Administration at the School of Nursing & Health Studies at Georgetown University Medical Center.

Typically, individuals in need of nursing home care who do not have Medicaid, and usually pay out of pocket until they run out of money. Then they are eligible for Medicaid, Huang says. Only a small fraction of nursing home residents have private insurance, such as long-term care insurance, that helps cover the costs.

This study used a unique dataset on nursing home prices from 2005-2010 across eight states. “Very few people have studied this topic, so it required building the largest dataset on nursing home prices to date,” Huang says. “This kind of information is very valuable to potential consumers of this care.”

###

Study co-authors include Richard A. Hirth, PhD, from the University of Michigan,

Jane Banaszak-Holl, PhD, from Monash University in Australia, and Stephanie Yuan, BA, from Georgetown University Medical Center.

The study was partly supported by a grant from the U.S. Social Security Administration, funded as part of the Retirement Research Consortium through the University of Michigan Retirement Research Center Award RRC08098401.

Medicare and Medicaid Programs; Revision of Requirements for Long-Term Care Facilities Arbitration Agreements (CMS-3342-F)

July 30, 2019

NAELA eBulletin:

Today, the Centers for Medicare & Medicaid Services (CMS) announced a final rule, “Medicare and Medicaid Programs; Revision of Requirements for Long-Term Care Facilities: Arbitration Agreements” (CMS-3342-F). The final rule revises the requirements for arbitration agreements when they are used by long-term care (LTC) facilities to resolve disputes with their residents. Provisions in this rule establish substantial protections for residents and their representatives and ensure transparency in the arbitration process in LTC facilities, also known as “nursing homes”. The rule is part of the agency’s five-part approach to ensuring a high-quality nursing home system that focuses on strengthening requirements for nursing homes, working with states to enforce statutory and regulatory requirements, increasing transparency of nursing home performance, and promoting improved health outcomes for nursing home residents.

This final rule repeals the prohibition on LTC facilities entering into pre-dispute, binding arbitration agreements with their residents, as proposed. However, this final rule includes protections of residents’’ rights by prohibiting LTC facilities from requiring residents to sign binding arbitration agreements as a condition of admission to, or as a requirement to continue to receive care at, that facility. It strengthens the transparency of arbitration agreements and the arbitration process with specific requirements for the LTC facility, such as the requirement that LTC facilities that resolve a dispute with a resident through arbitration retain copies of the signed arbitration agreement and the final arbitrator’s decision for five years and make such documents available for review by CMS or its designee. It also protects residents’ rights to make informed choices about their health care by ensuring that residents or their representatives have the right to understand what the arbitration agreement says and the consequences of signing the agreement.

Background

On October 4, 2016, CMS published in the Federal Register a final rule titled, “Reform of Requirements for Long-Term Care Facilities” (81 FR 68688) (2016 final rule). The rule banned binding pre-dispute arbitration agreements in LTC facilities. In 2016, the American Health Care Association (AHCA) and a group of affiliated nursing homes filed a complaint in the U.S. District court for the Northern District of Mississippi seeking a preliminary and permanent injunction enjoining CMS from enforcing the ban on LTC facilities entering into pre-dispute, binding arbitration agreements with their residents. After the court preliminarily enjoined the enforcement of that regulation, the agency determined that further analysis of the rule was warranted. On December 9, 2016, CMS issued a nationwide instruction to State Survey Agency Directors, directing them not to enforce the 2016 final rule’s prohibition of pre-dispute, binding arbitration provisions.

On June 8, 2017, CMSCMS published a proposed rule, “Medicare and Medicaid Programs; Revisions of Requirements for Long-Term Care Facilities: Arbitration Agreements” (82 FR 26649) in the Federal Register. The agency received over 1,000 public comments on the proposed rule from a number of stakeholders, including nursing homes and beneficiary advocates. That proposed rule focused on the transparency surrounding the arbitration process and proposed the following:

  • The prohibition on LTC facilities entering into pre-dispute, binding arbitration agreements with their residents would be repealed.
  • All agreements for binding arbitration must be in plain language.
  • If signing the agreement for binding arbitration is a condition of admission into the facility, the language of the agreement must be in plain writing and in the admissions contract.
  • The agreement must be explained to the resident and his or her representative in a form and manner they understand, including that it must be in a language they understand.
  • The resident must acknowledge that he or she understands the agreement.
  • The agreement must not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including federal and state surveyors, other federal or state health department employees, or representatives of the State Long-Term Care Ombudsman.
  • If the facility resolves a dispute with a resident through arbitration, it must retain a copy of the signed agreement for binding arbitration and the arbitrator’s final decision so it can be inspected by CMS or its designee.
  • The facility must post a notice regarding its use of binding arbitration in an area that is visible to both residents and visitors.

Final Rule Revisions to Arbitration Requirements

After careful consideration of the public comments, CMS is modifying our proposed changes.  We are not finalizing the requirements for plain language in the arbitration agreements and that the facility post a notice regarding its use of binding arbitration. We believe these proposed requirements are unnecessary due to other requirements finalized in this rule.  In addition, we are retaining some of the requirements finalized in the 2016 rule.  We are finalizing following provisions.  An LTC facility must:

  • Not require that a resident or his or her representative sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the facility.  This must be explicitly stated in the agreement to ensure.  This ensures that no resident or his or her representative will have to choose between the resident obtaining the skilled nursing care he or she needs and signing an agreement for binding arbitration.
  • Ensure that the agreement is explained to the resident or his or her representative in a form and manner that he or she understands, including in a language that he or she understands, and that the resident or his or her representative acknowledges that he or she understands the agreement.  These two requirements ensure that the arbitration agreement is transparent and the resident or his or her representative understand what he or she is agreeing to.
  • Ensure that the agreement provides for the selection of a neutral arbitrator agreed upon by both parties and a venue that is convenient to both parties.  These requirements helps to ensure that the arbitration process is fair to both parties, especially the residents.
  • Ensure that the agreement does not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including Federal or state surveyors, other federal or state health department employees, or representative of the Office of the State Long-Term Care Ombudsman. This protects the resident and his or her representative from any undue influence by the LTC facility to not discuss the circumstances surrounding a concern, complaint or grievance.
  • Retain copies of the signed agreement for binding arbitration and the arbitrator’s final decision for 5 years after the resolution of any dispute resolved through arbitration with residents, and make these documents available for inspection upon request by CMS or its designee.  This will ensure that CMS will be able to obtain information on how the arbitration process is being used by LTC facilities, and on the outcomes of the arbitrations for residents.

For more information, please visit: https://www.federalregister.gov/documents/2019/07/18/2019-14945/medicare-and-medicaid-programs-revision-of-requirements-for-long-term-care-facilities-arbitration

 

How to Fight a Nursing Home Discharge

June 4, 2019

Once a resident is settled in a nursing home, being told to leave can be very traumatic. Nursing homes are required to follow certain procedures before discharging a resident, but family members often accept the discharge without questioning it. Residents can fight back and challenge an unlawful discharge.

According to federal law, a nursing home can discharge a resident only for the following reasons:

  • The resident’s health has improved
  • The resident’s needs cannot be met by the facility
  • The health and safety of other residents is endangered
  • The resident has not paid after receiving notice
  • The facility stops operating

Unfortunately, sometimes nursing homes want to get rid of a resident for another reason–perhaps the resident is difficult, the resident’s family is difficult, or the resident is a Medicaid recipient. In such cases, the nursing home may not follow the proper procedure or it may attempt to “dump” the resident by transferring the resident to a hospital and then refusing to let the him or her back in.

If the nursing home transfers a resident to a hospital, state law may require that the nursing home hold the resident’s bed for a certain number of days (usually about a week). Before transferring a resident, the facility must inform the resident about its bed-hold policy. If the resident pays privately, he or she may have to pay to hold the bed, but if the resident receives Medicaid, Medicaid will pay for the bed hold. In addition, if the resident is a Medicaid recipient the nursing home has to readmit the resident to the first available bed if the bed-hold period has passed.

In addition, a nursing home cannot discharge a resident without proper notice and planning. In general, the nursing home must provide written notice 30 days before discharge, though shorter notice is allowed in emergency situations. Even if a patient is sent to a hospital, the nursing home may still have to do proper discharge planning if it plans on not readmitting the resident. A discharge plan must ensure the resident has a safe place to go, preferably near family, and outline the care the resident will receive after discharge.

If the nursing home refuses to readmit a patient or insists on discharging a resident, residents can appeal or file a complaint with the state long-term care ombudsman. The resident should appeal as soon as possible after receiving a discharge notice or after being refused readmittance to the nursing home. You can also require the resident’s doctor to sign off on the discharge. Contact your attorney to find out the best steps to take.

For more on protecting the rights of nursing home residents, see the guide 20 Common Nursing Home Problems–and How to Resolve Them by Justice in Aging.

How To Find And Use New Federal Ratings For Rehab Services At Nursing Homes

June 4, 2019

NAELA News:

For the first time, the federal government is shining a spotlight on the quality of rehabilitation care at nursing homes — services used by nearly 2 million older adults each year.

Medicare’s Nursing Home Compare website now includes a “star rating” (a composite measure of quality) for rehab services — skilled nursing care and physical, occupational or speech therapy for people recovering from a hospitalization. The site also breaks out 13 measures of the quality of rehab care, offering a more robust view of facilities’ performance.

Independent experts and industry representatives welcomed the changes, saying they could help seniors make better decisions about where to seek care after a hospital stay. This matters because high-quality care can help older adults regain the ability to live independently, while low-quality care can compromise seniors’ recovery.

“It’s a very positive move,” said David Grabowski, a professor of health care policy at Harvard Medical School. He noted that previous ratings haven’t distinguished between two groups in nursing homes with different characteristics and needs — temporary residents getting short-term rehabilitation and permanent residents too ill or frail to live independently.

Temporary residents are trying to regain the ability to care for themselves and return home as soon as possible, he noted. By contrast, permanent residents aren’t expecting improvements: Their goal is to maintain the best quality of life.

Three separate ratings for the quality of residents’ care now appear on the Nursing Home Compare website: one for overall quality (a composite measure); another one for “short-stay” patients (people who reside in facilities for 100 days or less, getting skilled nursing services and physical, occupational or speech therapy) and a third for “long-stay” patients (people who reside in facilities for more than 100 days).

Ratings for short-stay patients — available for 13,799 nursing homes — vary considerably, according to a Kaiser Health News analysis of data published by the government in late April. Nationally, 30% of nursing homes with a rating received five stars, the highest possible. Another 21% got a four-star rating, signifying above-average care. Twenty percent got three stars, an average performance. Seventeen percent got two stars, a worse-than-average score. And 13% got one star, a bottom-of-the-barrel score. (Altogether, 1,764 nursing homes did not receive ratings for short-stay patients.)

Here’s information about how to find and use the new Nursing Home Compare data, as well as insights from Kaiser Health News’ analysis:

Finding data about rehabilitation. Enter your geographic location on Nursing Home Compare’s home page, and a list of facilities will come up. You can select three at a time to review. Once you’ve done so, hit the “compare now” button at the top of the list. (To see more facilities, you’ll need to repeat the process.)

A new page will appear with several tabs. Click on the one marked “quality of resident care.” The three overall star ratings described above will appear for the facilities you’ve selected.

Below this information, two options are listed on the left side: “short-stay residents” and “long-stay residents.” Click on “short-stay residents.” Now you’ll see 13 measures with actual numbers included (most but not all of the time), as well as state and national averages.

Understanding the star rating. Six measures are used to calculate star ratings for the quality of rehab care for short-stay patients. Two of them concern emergency room visits and rehospitalizations, potential indicators of problematic care. Another two examine how well pain was controlled and bedsores were managed. One measure looks at how many patients became better able to move around on their own, an important element of recovery. Yet another examines the rate at which antipsychotic medications were newly prescribed. (These drugs can have significant side effects and are not recommended for older adults with dementia.)

One measure of great interest to seniors is the percentage of residents who return successfully home after a short nursing home stay. But actual numbers aren’t available on the Nursing Home Compare website this time around: Instead, facilities are listed as below average, average or above average. The national average, reported in April, was 48.6%, indicating room for improvement.Tracking variations in performance. Some facilities outperform others by large margins on measures of quality of care for short-stay residents. And some facilities have high scores in some areas, but not in others.

Tracking variations in performance. Some facilities outperform others by large margins on measures of quality of care for short-stay residents. And some facilities have high scores in some areas, but not in others.

For instance, the nursing home at Westminster Village, a high-end continuing care retirement community in Scottsdale, Ariz., had the highest score for rehospitalizations — 39.9% — out of 68 facilities in and around Phoenix. (By contrast, the lowest score in the Phoenix area was 15.4% and the state average was 23.5%.) It also had the highest rate of helping residents improve their ability to move around on their own — 88.6%. (The lowest score was 37.6% and the state average was 63.6%.)

In an email, Lesley Midkiff, marketing director at Westminster Village, said that the facility’s staff is vigilant about sending residents back to the hospital if health issues arise. At the same time, she said, staffers “push the residents just enough to regain independence and recover quickly from their short term stays.” Both priorities have the “residents’ best interest” in mind, she said.

If a facility has an average or low quality score, Dr. David Gifford, a senior vice president at the American Health Care Association, a nursing home industry group, recommended that people look closely at various measures and try to figure out where the institution fell short. Call the facility and ask them to explain, he said. Also, review Nursing Home Compare’s information about staffing and health inspections, Gifford suggested, and visit the facility if possible.

Variations within nursing homes. The newly published Nursing Home Compare data also shows that institutions aren’t always equally adept at caring for short-stay and long-stay residents.

Disparities in facilities’ ratings for short- and long-stay patients are common. Of 13,351 nursing homes that received both ratings, 32% received the same star ratings for the quality of care received by short-stay and long-stay residents. Another 32% of facilities received higher star ratings for short-stay residents, while 36% got higher ratings for long-stay residents. About one-third of the time, these rating categories were one star apart, but in another third of cases, they varied by two or more stars — a significant discrepancy. (This analysis does not include 2,212 nursing homes for which data was missing.)

In Phoenix, Desert Terrace Healthcare Center, which bills itself on its website as the city’s “premier location for short-term rehabilitation and long-term care,” is one such facility. Its quality-of-care rating for short-term residents was two stars, while its rating for long-term residents was five stars. Notably, hospital admissions and ER visits for short-stay patients were higher than the state average, while the portion of short-stay residents whose mobility improved was lower than average.

In an email, Jeremy Bowen, the facility’s administrator, wrote that the facility had a good record of managing pain and bedsores and limiting antipsychotic prescriptions for short-stay patients. Factors such as hospital readmissions depend on community resources and patients’ understanding of their health needs, which are difficult to control, he noted.

Sierra Winds, part of a continuing care community in Peoria, Ariz., has a similar split in quality ratings (two stars for short-stay residents, five stars for long-stay residents). On four of six measures used to calculate star ratings for short-stay residents, it performed worse than the state average.

“Sierra Winds remains committed to providing the highest quality care and services to its residents,” wrote Shannon Brown, the facility’s executive director, in an email. “We are proud of our 4-star rating with CMS [the Centers for Medicare & Medicaid Services].”

That’s the facility’s overall rating (this includes data about staffing and health inspections). But it doesn’t address the split in scores for short-stay and long-stay patients, which raises a red flag and should certainly cause seniors and their families to ask follow-up questions.

“If I’m a patient looking for a place for a short-term rehab stay, I really want to know how patients who look like me did,” said Dr. Rachel Werner, executive director of the Leonard Davis Institute of Health Economics at the University of Pennsylvania and a quality-measurement expert.

KHN senior correspondent Jordan Rau contributed to this report.

Be Aware of the Dangers of Joint Accounts

May 1, 2019

Many people believe that joint accounts are a good way to avoid probate and transfer money to loved ones.  But while joint accounts can be useful in certain circumstances, they can have dire consequences if not used properly.  Adding a loved one to a bank account can expose your account to the loved one’s creditors as well as affect Medicaid planning.

Once money is deposited in a joint account, it belongs to both account holders equally, regardless of who deposited the money. Account holders can withdraw, spend, or transfer money in the account without the consent of the other person on the account. Before putting anyone on a joint account with you, you need to be sure you can trust that person because he or she will have full access to the account. When one account holder dies, the money in the account automatically goes to the other account holder without passing through probate.

One problem with joint accounts is that it makes the account vulnerable to all the account owner’s creditors. For example, suppose you add your daughter to your bank account. If she falls behind on credit card debt and gets sued, the credit card company can use the money in the joint account to pay off your daughter’s debt. Or if she gets divorced, the money in the account could be considered her assets and be divided up in the divorce.

Joint accounts can also affect Medicaid eligibility. When a person applies for Medicaid long-term care coverage, the state looks at the applicant’s assets to see if the applicant qualifies for assistance. While a joint account may have two names on it, most states assume the applicant owns the entire amount in the account regardless of who contributed money to the account. If your name is on a joint account and you enter a nursing home, the state will assume the assets in the account belong to you unless you can prove that you did not contribute to it.

In addition, if you are a joint owner of a bank account and you or the other owner transfers assets out of the account, this can be considered an improper transfer of assets for Medicaid purposes. This means that either one of you could be ineligible for Medicaid for a period of time, depending on the amount of money in the account. The same thing happens if a joint owner is removed from a bank account. For example, if your spouse enters a nursing home and you remove his or her name from the joint bank account, it will be considered an improper transfer of assets.

There is a better way to conduct estate planning and plan for disability. A power of attorney will ensure family members have access to your finances in the case of your disability.  If you are seeking to transfer assets and avoid probate, a trust may make better sense. To learn more, talk to your attorney.

2019 Spousal Impoverishment and Home Equity Figures Released

November 29, 2018

The Centers for Medicare and Medicaid Services (CMS) has released its Spousal Impoverishment Standards for 2019, confirming the earlier projections of Pennsylvania ElderLawAnswers member Robert Clofine, who based his estimates on the consumer price index for urban consumers for September.

The official spousal impoverishment allowances for 2019 are as follows (we include Medicaid’s home equity limits, which Clofine did not project):

Minimum Community Spouse Resource Allowance: $25,284

Maximum Community Spouse Resource Allowance: $126,420

Maximum Monthly Maintenance Needs Allowance: $3,160.50 

The minimum monthly maintenance needs allowance for the lower 48 states remains $2,057.50 ($2,572.50 for Alaska and $2,366.25 for Hawaii) until July 1, 2019.

Home Equity Limits:

Minimum: $585,000

Maximum: $878,000

For CMS’s complete chart of the 2018 SSI and Spousal Impoverishment Standards, click here.

1,400 Nursing Homes Get Lower Medicare Ratings Because Of Staffing Concerns

September 10, 2018

Medicare has lowered its star ratings for staffing levels in 1 in 11 of the nation’s nursing homes — almost 1,400 of them — because they either had inadequate numbers of registered nurses or failed to provide payroll data that proved they had the required nursing coverage, federal records released last week show.

Medicare only recently began collecting and publishing payroll data on the staffing of nursing homes as required by the Affordable Care Act of 2010, rather than relying as it had before on the nursing homes’ own unverified reports.

The payroll records revealed lower overall staffing levels than homes had disclosed, particularly among registered nurses. Those are the highest-trained caregivers required to be in a nursing home, and they supervise other nurses and aides. Medicare mandates that every facility have a registered nurse working at least eight hours every day.

“It’s a real positive that they actually are taking the payroll-based system seriously, that they’re using it to punish those nursing homes that either aren’t reporting staffing or those that are below the federal limit,” said David Grabowski, a professor of health care policy at Harvard Medical School. “Could they do more? Sure, but I think it’s a really good start.”

Nursing home industry officials have acknowledged that some facilities are struggling to meet the new payroll reporting requirements. Katie Smith Sloan, president of LeadingAge, an association of nonprofit providers of aging services including nearly 2,000 nursing homes, said the lowered star ratings were disappointing and attributed them largely to a workforce shortage.

“Our members are battling on multiple fronts to recruit and retain all types of qualified staff, and nurses in particular,” she said in a statement.

Medicare rates nursing homes on a five-star system, and the homes’ failures to either keep the facilities consistently staffed with registered nurses or to provide the data to prove they were doing so led the government to give its lowest rating for staffing to 1,387 of the nation’s 15,616 skilled nursing facilities, according to a Kaiser Health News analysis of the latest data released by Medicare. They all received one star out of a possible five on July 25, when Medicare updated its Nursing Home Compare website, replacing the first ratings based on payroll data issued in April.

In footnotes on the site, Medicare said those homes either lacked a registered nurse for “a high number of days” over three months, provided data the government couldn’t verify or didn’t supply their payroll data at all. The downgraded homes reported seven or more days without any registered nurses, the analysis found.

For roughly half of the homes, the downgrades lowered their overall star ratings, which are the measures displayed most prominently on the site. But some of the homes saw their overall ratings stay the same or even rise, buoyed by their scores on other quality measures. Seventy-nine are still rated with a coveted five stars.

While the Kaiser Health News analysis found substantially lower average staffing of nurses and aides at for-profit facilities than at nonprofits and government-owned homes, the number of downgraded nursing homes was roughly proportionally divided among the three categories, indicating an industry-wide issue with staffing by registered nurses in particular.

Medicare concedes that because the payroll system is geared toward reporting hourly work, salaried staff may not always be reflected correctly, especially if they were working overtime. But Medicare had warned the nursing homes in April that the downgrades would be coming if facilities continued to show no registered nurses on duty. The agency noted it has been preparing nursing homes since 2015 for the new payroll system.

“We’ve just begun to leverage this new information to strengthen transparency and enforcement with the goals of improved patient safety and health outcomes,” the Centers for Medicare & Medicaid Services said in a statement.

The new payroll data, analyzed by Kaiser Health News, showed that for-profit nursing homes averaged 16 percent fewer staff than did nonprofits, even after accounting for differences in the needs of residents. The biggest difference was in the number of registered nurses: At the average nonprofit, there was one RN for every 28 residents, but at the average for-profit, there was only one RN for every 43 residents. Researchers have repeatedly found lower staffing in for-profit facilities, which make up 70 percent of the industry.

The data also revealed that nursing homes have large fluctuations in staffing. The average nursing home had one licensed nurse caring for as few as 17 residents or as many as 33, depending on the day. On the best-staffed days, each certified nursing assistant or other aide cared for nine residents, but on the worst-staffed days, each aide was responsible for 16 residents.

Weekend staffing was particularly sparse. On weekends on average, there were 11 percent fewer nurses providing direct care and 8 percent fewer aides.

Advocating for Nursing Facility Residents Under the Revised Federal Requirements

June 27, 2018

NAELA News, By Eric Carlson, Esq., Lori Smetanka, Esq., and Nancy Stone, Esq.

A. History of Statute
Thirty years ago, through enactment of the Nursing Home Reform Act (NHRA), Congress approved sweeping reforms to improve nursing facility quality of care and establish resident rights.2 The reform law applies to all nursing facilities (aka nursing homes) that accept payment from Medicare, Medicaid, or both. Congress enacted the landmark legislation in response to findings of the Institute of Medicine that despite federal regulations adopted in the 1970s, abuse and neglect were unfortunately common in nursing facilities across the country. In addition, quality of care in most nursing facilities left much to be desired and residents were often treated with disrespect and denied freedom of choice regarding activities, schedules, and other important aspects of life.3

B. Overview of Revisions
As CMS noted in the release of the revised regulations, the federal regulations had not been comprehensively reviewed and updated for a quarter of a century. Revisions were necessary to incorporate innovations and research-based knowledge in the areas of service delivery, individual choice, resident safety, health outcomes, professional standards, and quality assurance and performance improvement. CMS’s stated goals in revising the regulations were to improve quality of care and quality of life and to optimize resident safety, while reducing procedural burdens on facility operators. The reforms included new and expanded requirements for the following:

• Person-centered care, assessment, and resident participation in care planning;

• Admission, transfer, and discharge procedures;

• Required services and quality improvement procedures;

• Facility grievance policy and grievance officials; and

• Protections from abuse, neglect, and exploitation.

The revised regulations also implement certain provisions of the 2010 Affordable Care Act, including the requirement for training on dementia care and abuse prevention and for reporting of suspicions of abuse. In addition, CMS extensively reorganized and “re-designated” requirements in an effort to improve readability.4

Most of the revised regulations took effect on November 28, 2016 (Phase 1); however, the effective date of some new requirements was delayed until November 28, 2017 (Phase 2), or November 28, 2019 (Phase 3), to reduce the burden on nursing facilities of implementing the reforms.5 In addition, in 2017 CMS announced it will delay enforcement of certain Phase 2 requirements,6 as discussed in section III, and the regulation limiting arbitration agreements has been enjoined and likely will be rescinded by CMS.7

II. Guide to Revised Regulations

A. Admission

1. No Waiver of Legal Rights
Most residents admitted to nursing facilities are experiencing a decline in mental capacity resulting from Alzheimer’s disease, other forms of dementia, or other ailments, compromising their ability to negotiate an admission agreement. It is an extremely stressful time for both residents and their families, who often are in crisis and will agree to almost anything to obtain access to needed health care services. Not surprisingly, admission agreements are typically drafted in terms more favorable to the facility than the resident.

Admission agreements frequently have misrepresented applicable laws.8 To address such problems, the NHRA prohibits facilities from requiring residents to waive their rights to Medicare and Medicaid. The revised regulations go further, prohibiting a facility not only from requiring, but even from asking, a resident to waive his or her rights under applicable local, state, and federal laws as well as Medicare and Medicaid. In addition, the terms of an admission agreement must not conflict with the regulations.9 Thus, under the revised regulations, surveyors (whose agencies survey (inspect) nursing facilities to ensure that they comply with the law) can cite a facility for using an admission agreement that requires a resident to waive rights under laws other than Medicare and Medicaid or otherwise conflicts with the requirements.10

In a similar vein, the revised regulations prohibit facilities from obtaining a waiver of liability for loss of a resident’s personal property. Under the revised regulations, a facility must not “request or require residents or potential residents to waive potential facility liability for losses of personal property.”11 In accord, the regulations also establish a facility duty to “exercise reasonable care for the protection of the resident’s property from loss or theft.”12

2. No Third-Party Guarantee of Payment
Under the NHRA, facilities are prohibited from requiring a third-party guarantee of payment as a condition of admission or continued residence. Despite the long-standing prohibition, arranging for a third party to take on financial liability continues to be a high priority for many nursing facilities.13

Some facilities, for example, have had a resident’s relative or friend take on liability on the pretext that this person is volunteering to sign the admission agreement as guarantor. Under the revised regulations, however, a nursing facility can neither require nor request a third-party guarantee of payment.14

The NHRA does not prohibit a facility from requiring a resident’s agent to sign an agreement to pay the facility’s charges with the resident’s assets. Under the revised regulations, the facility is authorized to request and require “a resident representative who has legal access to a resident’s income or resources available to pay for facility care to sign a contract, without incurring personal financial liability, to provide facility payment from the resident’s income or resources.”15 The revised regulations, however, do not address a gambit that some facilities use: filing suit against a resident representative for allegedly violating his or her duty under the admission agreement to use the resident’s funds to pay the nursing facility bill and/or to take all necessary steps to obtain Medicaid eligibility on the resident’s behalf. For example, in Sunrise Healthcare Corp. v. Azarigian,16 the facility won a judgment for breach of contract against the resident’s daughter, and agent under a power of attorney, after Medicaid denied the resident’s application because of asset transfers the resident’s agent and then-deceased spouse made, including a substantial transfer by the spouse to a revocable trust.17 The court found that the defendant had breached the admission agreement by transferring assets for estate planning purposes and to pay for a personal companion for the resident, instead of using the funds to pay for the resident’s nursing facility costs and other “basic necessities.”18

Consumer advocates are sharply critical of the reasoning in Sunrise and similar cases, because these types of lawsuits attempt to bypass both the prohibition against a third-party guarantee and the general rule that an agent is not liable for a principal’s debts. In many cases, rulings for the facility “likely are driven by the court’s lack of sympathy for the defendant, who may be a family member or friend who has misused the resident’s money rather than paying the facility for services rendered.”19 The issue of lawsuits against family members was brought to CMS’s attention, but CMS said that it needs “to further investigate this concern and consider it for future notice and comment rule-making.”20

3. No Predispute Arbitration: Enjoined and New Rules Proposed
In the revised regulations, CMS prohibits the use of predispute arbitration agreements (i.e., arbitration agreements signed before a dispute arises). Generally, a predispute agreement is signed during the resident’s admission to a facility and applies to all disputes that subsequently arise between the resident and the facility. Unfortunately, however, CMS under President Trump likely will rescind the prohibition and further revise the rules for arbitration agreements.

Under the revised regulations, a facility must not enter into a predispute arbitration agreement with a resident or resident’s representative or require a resident to sign an arbitration agreement as a condition of admission. A facility may ask a resident to sign an arbitration agreement after a dispute arises, provided the facility complies with new requirements for drafting and entering into such an agreement.21

The ban on predispute arbitration agreements was to take effect on November 28, 2016, but its implementation was enjoined by the U.S. District Court for the Northern District of Mississippi in American Health Care Ass’n v. Burwell,22 a lawsuit filed by a nursing facility trade association and a group of nursing facilities. The court found that the plaintiffs were likely to prevail on the theories that the prohibition conflicts with the Federal Arbitration Act and that CMS lacks statutory authority to adopt the prohibition.23 CMS initially appealed the ruling to the Fifth Circuit; however, under the Trump administration, CMS moved to voluntarily dismiss the appeal. Further, CMS has issued proposed rules to reverse the ban on predispute arbitration agreements24 (see section III for further discussion of this issue).

4. Notice of Service Limitations
In a new requirement, a facility must provide residents or potential residents with written notice of any special characteristics or service limitations.25 The purpose of the notice requirement is to ensure informed choice by the resident and to prevent a resident’s discharge or transfer for an unanticipated inability of a facility to meet the resident’s needs. Circumstances in which notice would be required include, for example, a facility:

• Whose practices are guided by a religious affiliation that results in special characteristics, requirements, or limitations; or

• That lacks the capability to care for residents requiring psychiatric care.26

Any notice of service limitations should be carefully reviewed to determine if any service limitation is considered a denial of a service, or level of service, that nursing facilities must provide under the NHRA and the revised regulations.27 This concern was brought to CMS’s attention, but CMS did “not agree that providing this information allows or encourages providers to discriminate in the admissions process, nor does requiring it allow a facility to fail to provide required services.”28

B. Care Planning and Person-Centered Care
The revised regulations emphasize person-centered care — making the resident the center of control for decision-making about aspects of his or her daily life and supporting the resident in making his or her own choices.29 This covers all areas of decision-making, including all aspects of planning and implementing care, establishing care goals and outcomes, making informed choices about alternative treatments,30 and retaining decision-making capability or delegating that ability to a representative.31 The regulations specifically call for residents with limited capacity to retain the ability to make decisions outside a representative’s authority and for the resident’s wishes and preferences to be considered by a representative exercising the resident’s rights.32 Although the resident has always had the right to participate in care planning and decision-making, the regulations provide more clarity, with strong emphasis on a resident’s autonomy.

The revised regulations include an important new requirement for facilities to develop an interim baseline care plan in addition to the resident’s comprehensive care plan. The baseline care plan must be completed within 48 hours of admission.33 This new provision is intended to ensure that all residents admitted to a nursing facility receive the appropriate medications, diet, therapies, and services from the start. Under the previous regulations, some residents have resided in facilities for up to 3 weeks without having a care plan.

The baseline care plan must include the basic health care information necessary to provide proper care for the resident, including initial goals based on admission, physician, and dietary orders; therapy services; and social services.34 The resident and his or her representative must be given a summary of the baseline care plan that includes the resident’s goals, medications, dietary instructions, and therapies or other services or treatments to be provided.35

To ensure ongoing care coordination, the regulations continue to require a comprehensive care plan36 for each resident that includes measurable objectives and time frames to meet the resident’s needs identified in the comprehensive assessment. The comprehensive assessment must be conducted using a CMS-specified resident assessment instrument and include a resident’s needs, strengths, goals, life history, and preferences.37 The assessment also must include information such as the resident’s routine; patterns (cognitive, mood, and behavior); functional, communication, and visual abilities; activities; and continence.38 The assessment is to be completed based on direct observation of the resident, along with communication with the resident and staff. The comprehensive assessment must be completed within 14 calendar days after admission, after significant change in the resident’s physical or mental status, and at least annually.39 A facility is also required to conduct a less-detailed quarterly assessment for each resident.40

The comprehensive care plan, which must be developed within 7 days after the comprehensive assessment, must include the following:

• The services to be provided to attain or maintain the resident’s highest practical physical, mental, and psychosocial well-being;41

• The resident’s goals and desired outcomes;42

• The resident’s preference and potential for discharge;43 and

• Discharge plans as appropriate.44

Care plans must be developed through an interdisciplinary team directed by the resident or resident’s representative. The revised regulations expand the composition of this team. The team must now include all those with responsibility for the resident, not only the attending physician and registered nurse but also a nurse aide, a food services staff member, and others as determined by the resident’s needs or as requested by the resident.45 The resident and his or her representative must be included in the development of the care plan to the extent possible. If such participation is determined not practicable, an explanation about why they were not included must be documented in the resident’s medical record.46 To make it easier to include residents and representatives in care planning, facilities should consider steps such as scheduling care plan meetings to fit a family member’s schedule or including some team members via phone or video conference.

New in the revised regulations is a requirement that care plans be written with an eye toward cultural competency. The regulations also require care plans to be “trauma-informed,” meaning that the care plan must take into account any ordeal or suffering the resident has experienced and determine appropriate interventions and services needed to lessen the trauma or prevent its exacerbation.47

Also new is the requirement that care planning include discharge planning, unless the resident’s file includes documentation that discharge planning is not desired.48 A discharge plan must focus on the resident’s goals, include the resident as an active partner in the planning process, effectively prepare the resident for transition out of the facility, and reduce factors that could lead to preventable readmissions.49 The interdisciplinary team must be involved in developing the discharge plan,50 and the plan must take into account the availability of caregivers and/or other support people, including the resident’s and the caregiver’s/support person’s capacity and capability to provide the required care.51

The discharge plan must be updated and revised as needed to reflect the resident’s needs or goals.52 If the resident wants to return to the community, appropriate referrals to local contact agencies or other appropriate agencies must be made and documented. If it is determined that the resident cannot be discharged to the community, the facility must document who made the decision and why.53

When the resident is ready for discharge, the facility must prepare a discharge summary of the resident’s stay in the facility, including treatments, therapy, and test and consultation results; a summary of the resident’s status based on a resident assessment; a reconciliation of all medications; and a post-discharge plan of care. The post-discharge plan must include where the individual will reside, arrangements for follow-up care, and needed medical and nonmedical services.54

C. Resident Rights

1. Overview
Although CMS extensively reorganized, revised, and updated the regulations, all NHRA-mandated resident rights are retained. CMS expanded certain requirements, particularly with respect to resident choice, safety, care planning participation, community interaction, and grievances.

2. Basic Rights
Under the revised regulations, “A facility must treat each resident with respect and dignity and care for each resident in a manner and in an environment that promotes maintenance or enhancement of his or her quality of life, recognizing each resident’s individuality” and “provide equal access to quality care regardless of diagnosis, severity of condition, or payment source.”55 As in the previous regulations, facilities must not discriminate based on payment source (i.e., Medicaid) in transferring, discharging, and providing services to residents.56

3. Exercising Rights
The NHRA protects the resident’s right to exercise his or her rights as a resident and U.S. citizen without interference, coercion, discrimination, or reprisal from the facility. The revised regulations echo this requirement, stating that the resident has the right to be supported by the facility in the exercise of his or her rights.57

A resident has the right to designate a representative in accordance with state law, unless he or she has been adjudicated incompetent, and a resident representative may exercise the resident’s rights to the extent provided by state law. The revised regulations also protect the rights of a resident with a same-sex spouse, in accordance with the U.S. Supreme Court decision in United States v. Windsor,58 which invalidated the federal Defense of Marriage Act: “The same-sex spouse of a resident must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated.”59

Responding to “concerns that resident representatives may be accorded more decision-making authority than their appointment or delegation permits,”60 CMS added protections for resident rights with respect to the resident representative. A resident with a legal surrogate retains the right to make decisions that are outside a court-appointed representative’s authority or not delegated by the resident to the representative.61 Similarly, a facility must not extend to a resident’s representative the right to make decisions “beyond the extent required by the court or delegated by the resident.”62 Furthermore, if a facility has reason to believe that a resident’s representative is not acting in the resident’s best interest, the facility must report its concerns to state authorities as prescribed by state law.63

4. Health Care Decision-Making
In a new subsection, CMS consolidated resident rights in the planning and implementation of health care services. Under these rights, a resident has the right to be informed of his or her treatment, health status, and medical condition in a language that he or she can understand; participate in care planning and treatment; request, refuse, or discontinue treatment; and formulate an advance directive.64 CMS also added a requirement that the facility inform the resident of the right to participate in the care planning process and support the resident in exercising this right.65

CMS emphasized that residents who are adjudicated incompetent also have the right to participate in care planning to the extent practicable,66 commenting, “[I]t is important for a resident who has been adjudicated incompetent to be treated with respect and dignity and to continue to make those decisions that are appropriate for him or her to make.”67

5. Choice of Attending Physician
The pre-existing resident right to choose an attending physician was relocated to a new subsection. Under the revised regulations, the facility must ensure that the attending physician is licensed and complies with the nursing facility requirements.68 If the resident-selected physician does not meet the regulations, the facility may choose a physician for the resident, but only after discussing the matter with the resident and honoring the resident’s preference (if any) among options. The facility must ensure that the resident “remains informed of the name, specialty, and way of contacting the physician and other primary care professionals responsible for his or her care.”69

6. Respect and Dignity: Restraints, Roommates, and Room Transfers
The NHRA prohibits the use of unnecessary restraints. In accord, the revised regulations state that residents have a right to be treated with respect and dignity, including “the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident’s medical symptoms.”70 In a new section of the regulations, unnecessary restraints are included in the definition of “abuse,” which is discussed further in section II(H). In the very rare circumstances in which restraints are medically indicated, the facility must ensure that residents are free from unnecessary restraints and “must use the least restrictive alternative for the least amount of time and document ongoing re-evaluation of the need for restraints.”71

CMS revised the requirements regarding chemical restraints (i.e., behavior-modifying medications), commenting in the Federal Register that such medications too frequently are prescribed for residents to benefit the staff and not necessarily the resident’s health.72 This observation is supported by studies showing that behavior-modifying drugs are often used to sedate and control residents whose behavior is difficult for staff to manage, particularly residents with Alzheimer’s disease or other forms of dementia, and that nursing facilities with the largest percentage of residents receiving unnecessary antipsychotics tend to have the least amount of staff.73 CMS extended the requirements regarding antipsychotic drugs to a larger class of psychotropic drugs and added provisions to reduce or eliminate the need for these medications.74

Similar to the previous regulations, residents have the right to retain and use personal possessions as space permits, provided that doing so does not infringe upon other residents’ health and safety.75 In addition, residents have the “right to reside and receive services in the facility with reasonable accommodation of resident needs and preferences,”76 which emphasizes the facility’s responsibility to accommodate resident choice and individuality.

Consenting spouses have always had the right to share a room in a facility; the rule applies to all married couples, whether opposite or same-sex.77 The new regulations expand this right, specifying that a resident has the right to share a room with his or her “roommate of choice,”78 in order to accommodate same-sex couples, siblings, other relatives, long-term friends, or any other choice of roommates.79

The revised regulations retain a resident’s right to refuse a transfer to another room, without affecting the resident’s Medicare or Medicaid eligibility, if the relocation is intended to move the resident from a Medicare-certified room. The resident may also refuse to transfer to another room if the transfer is solely for staff convenience. Residents have a right to receive written notice of any change in room or roommate, including notice of the reason for the change.80

7. Self-Determination; Visitation and Interaction With the Community
The self-determination rules emphasize resident choice in facility life and the facility’s responsibility to promote, rather than obstruct, self-determination. Nursing facilities must promote, facilitate, and support resident choice in activities, schedules, visitation, and social, religious, and community activities. A resident has the right to choose schedules (including sleeping and waking times) and “to make choices about aspects of his or her life in the facility that are significant to the resident.”81

In addition, residents have “a right to interact with members of the community and participate in community activities both inside and outside the facility.”82 More specifically, the facility must provide activities that encourage interaction with the community83 and support and accommodate resident participation in activities outside the facility “to the extent possible, including making transportation arrangements.”84 CMS commented when the revised regulations were released that some residents may not be able to participate in activities outside the facility but that many others may, especially with the support of family or other assistance and planning. In arranging for a resident’s activities in the community, the facility must balance the resident’s right to self-determination with safety and security concerns.85

CMS revised and clarified residents’ rights to receive visitors and participate in family groups. Visitation rights are central: “The resident has the right to receive visitors of his or her choosing at the time of his or her choosing … in a manner that does not impose on the rights of another resident.”86 The facility must provide prompt access to a resident by immediate family members, other relatives, and resident representatives, subject to the resident’s desire to accept visits. Visits by persons other than family, however, are “subject to reasonable clinical and safety restrictions.”87 Advocates should be vigilant to ensure that safety restrictions are strictly interpreted. CMS’s examples suggest that such strict interpretation is appropriate, stating that restrictions due to suspected abuse should be imposed until such suspicions are investigated or after an investigation confirms suspicions. CMS also refers to persons who are “inebriated or disruptive,” suggesting that the label “disruptive” should not be extended broadly to persons the facility finds difficult.88

Furthermore, CMS specifies that the facility must “ensure that all visitors enjoy full and equal visitation privileges consistent with resident preferences” and must not “restrict, limit, or otherwise deny visitation privileges on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability.”89 The facility also must provide “reasonable access” to a resident by an entity or individual who provides legal services.90

The revised regulations clarify that a resident has the right to participate in resident groups and to have his or her family members or resident representatives meet in the facility with family groups.91

8. Information and Communication
Resident rights regarding access to information have been updated to incorporate advances in electronic medical records and communications. Residents have the right to “reasonable access to and privacy in their use of electronic communications such as email and video communications and for [i]nternet research.”92 Residents have a right to reasonable access to and use of a telephone. New provisions specify that a resident has the right to retain and use a cell phone at the resident’s expense. The nursing facility must protect and facilitate the resident’s right to communicate with others, both inside and outside the facility, by providing reasonable access to communication devices, including the internet, to the extent available to the facility.93

CMS clarified in the revised regulations that each resident has “the right to receive notices orally (meaning spoken) and in writing (including Braille) in a format and a language he or she understands,” commenting in the Federal Register that “effective communication for some residents requires the use of auxiliary aids and services.”94 Facilities have a responsibility to provide notices to residents regarding their legal rights, Medicare and Medicaid eligibility, advance directives, protection of personal funds, facility policies, rules and regulations governing resident conduct and responsibilities at the facility, grievance procedures, and contact information for pertinent regulatory, informational, and advocacy agencies.

Residents have the right to access their medical records, and the facility must provide access, upon oral or written request “in the form or format requested by the individual, if it is readily producible in such form and format (including in an electronic form or format, when such records are maintained electronically)… .”95 The facility may charge a reasonable, cost-based fee for providing copies of medical records, provided the fee includes only the cost of labor, supplies, and postage if mailed.96

9. Privacy and Confidentiality
The resident’s right to privacy and confidentiality concerning his or her personal and medical records has been retained and updated to account for electronic communications. The facility must respect the resident’s right to privacy in his or her spoken, written, and electronic communications.97 CMS commented that the rights granted in the revised regulations do not conflict with HIPAA privacy and security rules.98

10. Safe Environment
CMS moved certain requirements for the residents’ environment to “Resident Rights,” focusing on increasing resident safety and protecting residents’ personal property. The revised regulations state that a safe, homelike environment is a resident right and includes the right to receive treatment and care services safely.99 As in the previous regulations, the facility must provide “[a] safe, clean, comfortable, and homelike environment, allowing the resident to use his or her personal property to the extent possible.” The facility must provide housekeeping and maintenance services, clean linens, private closet space, adequate and comfortable lighting, comfortable and safe temperatures, and comfortable sound levels. Under the revised regulations, the facility also must do the following:

• Ensure that the resident can safely receive treatment;

• Provide a safe physical layout that maximizes resident independence; and

• Exercise reasonable care for the protection of the resident’s property from loss or theft.100

A facility cannot fulfill its duty to use reasonable care to protect the resident’s property in a manner that makes the property essentially inaccessible to the resident.

11. Grievances
The revised regulations have created procedural requirements for a facility to follow when handling grievances. As before, and consistent with the NHRA, a resident has the right to voice grievances without retaliation or the fear of discrimination or reprisal.101 In addition, a grievance can be made orally or in writing and can be submitted anonymously.

In a new requirement, the facility must establish a grievance policy to ensure prompt resolution of all grievances. The grievance policy must identify a grievance official who is responsible for overseeing the grievance process, including receiving, investigating, and tracking grievances through conclusion. The grievance official must lead any necessary investigation of the grievance while maintaining confidentiality of all information associated with the grievance, issue a written grievance decision to the resident, and coordinate with state and federal agencies as necessary. The written grievance decision must state the steps taken to investigate the grievance, pertinent findings and conclusions, whether the grievance was confirmed, and any corrective action taken or to be taken by the facility as a result of the grievance.102

While the grievance is being investigated, the facility must “take immediate action to prevent further potential violations of any resident rights.”103 The facility must immediately report “all alleged violations involving neglect, abuse, including injuries of unknown source, and/or misappropriation of resident property, by anyone furnishing services on behalf of the provider, to the administrator of the provider; and as required by State law.”104 The facility must take appropriate corrective action in accordance with state law if a violation of resident rights is confirmed by the facility or an outside entity having jurisdiction.105

Of course, grievance procedures are useful only if grievances are filed. The facility’s grievance policy must provide procedures for notifying residents of a) the right to file a grievance, b) the name of and contact information for the grievance official, c) a reasonable expected time frame for completing a review of the grievance, and d) the right to obtain a written decision regarding the grievance.106

12. Contact With External Entities
CMS specifies in the revised regulations, “A facility must not prohibit or in any way discourage a resident from communicating with federal, state, or local officials … regarding any matter, whether or not subject to arbitration or any other type of judicial or regulatory action.”107 Other provisions specify the resident’s right to receive notice of the contact information for state and local advocacy organizations, such as the state’s survey agency, long-term care ombudsman program, aging and disability resource center or other No Wrong Door program, and Medicaid fraud control unit. The facility must provide the notices orally or in writing in a format and language the resident understands.

D. Staffing and Training
Even though consumer advocates continued to seek minimum ratios of staff to residents, CMS instead continued to use more subjective standards based on “sufficient nursing staff.”108 New language requires that all staff members have appropriate competencies and skill sets.109 In determining the level of staffing that must be available, the facility must take into account the resident assessments, individual plans of care, and the number, acuity, and diagnoses of the resident population, as set forth in a formal assessment of the facility and its residents.110

Requirements for licensed nurses and registered nurses are unchanged, as set by the NHRA.111 Facilities are required to provide licensed nurses 24 hours per day and registered nurses 8 consecutive hours per day, 7 days per week. The revised regulations contain added language requiring a facility to ensure that licensed nurses have the specific competencies and skill sets necessary to care for residents in accordance with the needs identified in the resident assessments and described in the care plans.112 Providing care, as described in the regulations, includes “assessing, evaluating, planning and implementing resident care plans and responding to resident[s’] needs.”113

Also unchanged is the requirement that the facility post nurse staffing information on a daily basis. This information includes the date, the total number and actual hours worked by nurses and certified nurse aides, and the resident census. The information must be posted in a prominent place readily accessible to residents and visitors.114

New in the regulations is the requirement that facilities develop, implement, and maintain an effective training program for all staff, contractors, and volunteers. The amount and type of training necessary must be based on the formal facility assessment.115 Training topics must include communication; residents’ rights and facility responsibilities; abuse, neglect, and exploitation; quality assurance and performance improvement; infection control; compliance and ethics; and behavioral health. This training program must be put into effect by November 2019,116 with the exception of the training on abuse, neglect, and exploitation, which went into effect in November 2016.117 The abuse, neglect, and exploitation training must include information on the residents’ right to be free from abuse, neglect, and exploitation; it also must explain activities that constitute abuse, neglect, exploitation, and misappropriation of resident property and address reporting procedures and resident abuse prevention.118

Facilities also are required to provide at least 12 hours of in-service training annually for nurse aides.119 In-service training must include dementia management, resident abuse prevention, “areas of weakness as determined in nurse aides’ performance reviews and facility assessment,” and any special needs of residents as determined by facility staff.120 Training on caring for individuals with cognitive impairments must be included for nurse aides who care for such individuals — and every nursing facility will have residents with cognitive impairments.121

E. Quality of Care
The revised regulations state, “Quality of care is a fundamental principle that applies to all treatment and care provided to facility residents. Based on the comprehensive assessment of a resident, the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices … .”122

This discussion on quality of care includes the following:

• Vision and Hearing. Residents must receive the assistive devices necessary to maintain vision and hearing ability as well as assistance in making appointments and arranging transportation to practitioners if necessary.123

• Skin Integrity. Residents must be protected from developing pressure ulcers unless clinically unavoidable, and residents with pressure ulcers must receive treatment. Residents must also receive proper care and treatment to maintain good foot health as well as assistance in making appointments and arranging transportation to a qualified professional if necessary.124

• Mobility. A resident’s range of motion and mobility must be protected from decline unless a clinical condition makes decline unavoidable.125

• Accidents. Facilities must ensure that the environment is as free as possible from accident hazards and that each resident receives adequate supervision and assistive devices to prevent accidents.126

• Incontinence. Facilities must ensure that continent residents maintain their continence unless a clinical condition makes this impossible. Residents must not be catheterized unless clinically necessary, and residents who are catheterized must be assessed for catheter removal as soon as possible. Incontinent residents must be assessed for treatment and services to prevent infection and to restore continence to the extent possible.127

• Assisted Nutrition and Hydration. Facilities must ensure that residents maintain their weight unless a clinical condition or their preferences make this impossible. Residents must be offered sufficient fluids to maintain proper hydration. Residents’ ability to eat orally must be maintained unless clinically contraindicated. Residents must consent to enteral feeding and must receive appropriate treatment and services to restore oral eating, if possible, and to prevent complications.128

• Pain Management. Pain management must be provided to residents who require it. Pain management must be consistent with professional standards of practice, the comprehensive person-centered care plan, and the resident’s goals and preferences.129

• Dialysis. Dialysis services must be provided to residents who require them. Dialysis services must be consistent with professional standards of practice, the comprehensive person-centered care plan, and the resident’s goals and preferences.130

• Trauma-Informed Care. Residents who are trauma survivors must receive culturally competent trauma-informed care. Residents’ experiences and preferences must be taken into account in order to eliminate or mitigate triggers that may cause retraumatization.131

• Bed Rails. Facilities must attempt to use alternatives prior to installing a side or bed rail. If a side or bed rail is used, the facility must ensure proper installation and maintenance. Prior to installation, the facility must assess a resident’s risk of entrapment, review the risks and benefits of the rails with the resident or representative, and obtain informed consent.132

F. Pharmacy Services and Medications
Pharmacy services, including the dispensing of routine and emergency drugs, must be provided to meet the needs of each resident.133 If unlicensed personnel (e.g., medication assistants) are permitted under state law to administer drugs, the facility may allow it, but only under the general supervision of a licensed nurse.134 A licensed pharmacist must be consulted in the provision of pharmacy services, and he or she must establish a system for recording and accounting for controlled substances.135

Carried over to these revised regulations is the requirement that a licensed pharmacist conduct a drug regimen review for each resident at least monthly.136 New language requires the drug regimen review to include a review of the resident’s medical chart,137 and the regulations expand the reporting of irregularities to include unnecessary drugs.138 Additional documentation of any irregularities is required, including the fact that an irregularity has been reviewed by the attending physician and what action, if any, has been taken to address it. The attending physician must provide a rationale if he or she does not change the medication that is the cause of the irregularity.139

Also new to the regulations is a requirement that the facility develop and maintain policies and procedures for the monthly drug regimen review that includes time frames for the different steps in the process and steps the pharmacist must take when he or she identifies an irregularity that requires urgent action to protect the resident.140

Each resident’s drug regimen must be free from drugs that are “unnecessary,” which is defined as drugs used in excessive doses, for excessive durations, without adequate monitoring, or without adequate indications for use. Also included are drugs used in the presence of adverse consequences, which indicates the dose should be reduced or discontinued.141

The revised regulations contain important new language related to the use of psychotropic drugs, requiring facilities to ensure that residents who have not used psychotropic drugs are not given them unless necessary to treat a specific condition diagnosed and documented in the clinical record.142 Residents who have been prescribed psychotropic drugs must receive gradual dose reductions and behavioral interventions, unless clinically contraindicated, in an effort to discontinue use of the drugs.143

The regulations also now require facilities to ensure that residents do not receive psychotropic drugs as a PRN (as needed) order unless medically necessary to treat a specific diagnosed condition that is documented in the clinical record.144 Additionally, PRN orders for psychotropic drugs are limited to 14 days and cannot be renewed unless the attending physician or prescribing practitioner believes it is appropriate to extend the order and documents that reasoning. For antipsychotic medications, the limit on PRN orders also is 14 days, with the physician required to evaluate the resident prior to ordering any extension.145

G. Transfer and Discharge Procedures

1. Transfer and Discharge
Under the NHRA, a nursing facility can transfer a resident against his or her will for one of six reasons only:

1. The resident needs a level of care that the nursing facility cannot provide;

2. The resident does not need nursing facility care;

3. The resident’s presence endangers the health of others at the facility;

4. The resident’s presence endangers the safety of others at the facility;

5. The resident owes money for nursing facility care despite having received adequate notice; or

6. The nursing facility is going out of business.146

The regulations expand slightly on these six reasons. Following the statutory language, the regulations continue to specify, “For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid.”147 At a minimum, this language specifies that a facility cannot impose a private-pay rate on a resident who becomes Medicaid eligible. A Kansas appellate court has interpreted this language more broadly, holding that once a resident becomes Medicaid eligible, the resident cannot be transferred or discharged for failure to a pay a debt incurred during private-pay status.148

The regulations now bar transfer/discharge for nonpayment when the resident has submitted a claim for payment to a third party.149 This protection is most relevant when a resident has filed a Medicaid application. While the Medicaid program is considering the application — and, potentially, while a hearing officer is considering an appeal to an initial denial — the facility cannot proceed with a transfer/discharge based on nonpayment.

Regarding transfer/discharge based on purported danger to others, the regulations now specify that the endangerment must be “due to the clinical or behavioral status of the resident.”150 It is far from clear whether this additional language will be a significant check on facilities, given the potentially broad reach of the term “clinical or behavioral status.”

The regulations now include the important protection that a facility may not transfer or discharge a resident while an appeal is pending.151 This new provision protects residents both from improper transfer/discharge and from being threatened with transfer/discharge during an appeal’s pendency. The regulations provide an exception to this protection if, by staying in the facility through the appeal decision, the resident would endanger his or her health or safety or the health or safety of others in the facility.

Consistent with the statutory authority, the regulations continue the requirement of physician documentation of certain allegations. If a resident allegedly endangers the health or safety of others, a physician must document the alleged endangerment in the resident’s file. If transfer/discharge is based on allegations that the resident needs either a higher or lesser level of care, the required documentation must be performed by the resident’s physician because in these cases transfer/discharge supposedly is for the resident’s benefit.152

In a new protection, the regulations now require additional documentation when a facility alleges that it no longer can meet a resident’s needs. In these situations, the resident’s physician must list “the specific resident need(s) that cannot be met, facility attempts to meet the resident needs, and the service available at the receiving facility to meet the need(s).”153 Ideally, this requirement will serve as a check on a cynical facility’s inclination to rid itself of residents who require relatively more care. Too many facilities state broadly that a resident’s care needs are too great, but these same facilities likely are less quick to take action if forced to specify their supposed inability to provide required care and the ability of another nursing facility to provide the care.

Another check on the “we can’t meet your needs” transfer/discharge is a new requirement that a facility during admission provide “notice of special characteristics or service limitations of the facility.”154 If a facility subsequently claims that it cannot meet a resident’s needs, the resident may be able to point to the fact that the facility never disclosed any relevant service limitations and thus should not be able to rely on a supposed inability to provide necessary services.

The regulations continue to require written notice of transfer/discharge, consistent with statutory requirements.155 Notice must be provided to the resident and the resident’s representative.156 Generally, this notice must be provided at least 30 days prior to the proposed transfer/discharge, although the exceptions are many. Specifically, notice may be provided “as soon as practicable before transfer or discharge” when the resident’s presence endangers the health or safety of others, the resident’s needs necessitate an immediate transfer, an improvement in the resident’s health enables a more immediate transfer/discharge, or the resident has resided in the facility for less than 30 days.157

A new provision requires that notice also be sent to the state’s long-term care ombudsman program.158 To implement this requirement, most ombudsman programs are issuing instructions on how they want to receive notices and whether notices should be sent to state or local offices.

The notice-to-ombudsman requirement has placed additional attention on a continuing issue — When is a transfer/discharge considered involuntary for the purpose of requiring notice? Perhaps surprisingly, the federal transfer/discharge law applies on its face to all transfers and discharges, regardless of whether the resident is leaving against his or her will. The statutory language states that a facility “must permit each resident to remain in the facility and must not transfer or discharge the resident from the facility unless” one of the six reasons for transfer/discharge can be proved.159 The regulatory language is virtually identical.160

As a practical matter, however, it makes little sense for a facility to issue a transfer/discharge notice if a resident chooses to leave a nursing facility and, for example, return home. CMS has addressed this issue through subregulatory guidance that imposes notice requirements on a transfer or discharge when initiated by a facility but not when initiated by a resident. A transfer/discharge is considered resident initiated when the resident or representative “has given written or verbal notice of [his or her] intent to leave the facility.”161 Resident initiation is not indicated by a resident saying generally that he or she wants to go home.162 Furthermore, a transfer/discharge is considered facility initiated if it “did not originate through [the] resident’s verbal or written request, and/or is not in alignment with the resident’s stated goals for care and preferences.”163

One contested and important matter is the issuance of notice when a resident is concluding his or her Medicare-funded stay in a nursing facility. Many reimbursement-focused facilities see this time as an opportunity to move a Medicaid-eligible resident out of the nursing facility in order to bring in additional Medicare-reimbursed residents. In some instances, facilities claim that they are rehabilitation specialists and do not provide custodial care or long-term care. Such claims, however, fly in the face of the NHRA’s requirements that a resident be allowed to remain in the facility unless the facility can prove one of the six reasons for transfer/discharge. The federal law prioritizes a resident’s stability and dignity over the facility’s preference to receive higher reimbursement or specialize in a particular type of care.

The surveyor’s guidelines address the issue of transfer/discharge following a Medicare-funded stay, but the guidelines are only marginally helpful:

Discharges following completion of skilled rehabilitation may not always be a resident-initiated discharge. In cases where the resident may not object to the discharge, or has not appealed it, the discharge could still be involuntary and must meet all requirements of this regulation.164

Advocates for residents should cite this language to push back against facilities’ narrative that a Medicare-reimbursed resident always wants to leave when the Medicare reimbursement concludes. That narrative is true in some cases but is completely false in many others. Numerous Medicare-reimbursed residents are interested in nursing facility care after the conclusion of a Medicare-funded stay, and they are at risk of their nursing facility giving them the impression that they must leave, or should leave, when the Medicare-funded stay ends. To protect residents in these situations, facilities should provide the notice required by law. The notice is a vital check on the inclinations of some facilities to discard residents at the conclusion of their Medicare-funded stay.

2. Returning to Nursing Facility After Hospitalization
The relevant statutory authority addresses two related concepts: bed holds and the right to return. The ability to “hold” a bed is set by state law, and the federal law requires that the nursing facility notify the resident of his or her rights under state law. This notification must be given twice: before and when the resident is transferred to a hospital.165 Most nursing facilities provide the before-transfer notice when the person is first admitted to the nursing facility. Holding a bed requires that the nursing facility be paid for the relevant days, either by the resident or by a third-party payer (often Medicaid).

In thinking about bed hold rights, advocates should not ignore the argument that a resident holds a bed whenever he or she pays in advance. If a resident pays out of pocket, for example, for an entire month in advance, the resident should be considered to be under a bed hold through that entire month even if the bed hold established by the state’s nursing facility law has expired.

The right to return to the nursing facility does not depend on a bed being held. Under the NHRA, a resident has a right to return from the hospital to the next available semiprivate room in the facility.166 This right to return applies when the bed hold has been exceeded, the state provides no bed hold rights, and/or the resident chose not to pay for a bed hold.

Although the statutory right to return applies only to Medicaid-eligible residents, the revised regulations extend the right to residents whose nursing facility care will be reimbursed by Medicaid or Medicare. Also, the revised federal regulations establish the resident’s right to return to his or her original room in the nursing facility if that room is available.167

Another welcome regulatory change is a provision that addresses situations in which a facility refuses to honor a resident’s bed hold or right to return. Some nursing facilities consider hospitalization as an opportunity to rid themselves of a resident who is considered undesirable or less profitable for one reason or another. Refusing to accept a resident who is returning from the hospital puts the resident in an extremely difficult situation because the hospital will not want to retain him or her beyond the (probably limited) time allocated by Medicare or another insurer.

Under the revised regulations, if a facility “determines that a resident who was transferred with an expectation of returning to the facility cannot return to the facility,” the facility must comply with transfer/discharge requirements.168 Furthermore, the surveyor’s guidelines make it clear that “the resident must be permitted to return and resume residence in the facility while an appeal is pending.”169

H. Protections Against Abuse, Neglect, and Exploitation
Under the NHRA, a nursing facility resident has “the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms.”170 The regulations restate these rights with somewhat more detail, specifying that, regarding restraints, the facility “must use the least restrictive alternative for the least amount of time and document ongoing re-evaluation of the need for restraints.”171

In addition, a resident or representative should not overlook the resident’s ultimate control over the use of restraints — the right under state informed consent law to either consent to or refuse restraint use. A resident or representative does not have to prove that a physical restraint is being used for discipline or convenience and can refuse restraints without giving a reason.

Under the regulations, one facet of abuse prevention is hiring trustworthy persons. A facility must not employ anyone who has the following characteristics:

• Found by a court to be guilty of abuse, neglect, exploitation, misappropriation of property, or mistreatment;

• Had a finding entered in the state nurse aide registry based on one of these five transgressions; or

• Has a disciplinary action against his or her professional license due to one of the same five transgressions.172

Likewise, the facility must take steps to prevent and report abuse. A facility’s policies must prohibit abuse and provide training for employees on recognizing and reporting abuse and investigating abuse allegations.173 All alleged abuse violations must be reported to the facility administrator and to “other officials (including to the State Survey Agency and adult protective services where state law provides for jurisdiction in long-term care facilities) in accordance with State law through established procedures.”174 More generally, if the facility has information that an employee is unfit for assisting residents, the facility must make a report to the relevant licensing agency or the state nurse aide registry.175

In addition, the Affordable Care Act has added a requirement for reporting suspected crimes to law enforcement.176 As this requirement is implemented in federal regulations, a facility must notify managers, employees, and contractors of their duty to report to law enforcement “any reasonable suspicion of a crime” against a resident.177 The report must be made within 2 hours if serious bodily injury has occurred; otherwise, the report must be made within 24 hours. The report must be made to the state licensing and certification agency along with at least one local law enforcement agency. To ensure that reports are not suppressed, a facility is prohibited from retaliating against a reporter.178

III. Advocacy and Enforcement Issues
The nursing facility lobby has demonized the revised regulations to a certain extent, referring to them as the “Mega Rule” collectively and as “sweeping changes” that are “onerous and unnecessary.”179 These criticisms are overblown. For example, CMS noted that commenters who believe the proposed rules are overly burdensome often mischaracterize existing requirements as new rules, indicating a lack of knowledge of the current rules for nursing facilities.180 In contrast, consumer advocates argue that the proposed rules do not go far enough in making needed changes and merely reflect current practices, which may be inadequate. Consumer advocates’ top priority for the revised regulations was a minimum staffing standard, which is widely considered the single most important factor in improving quality of care. Improved staffing standards would have included minimum staff-to-resident ratios, minimum hours of care, and a registered nurse on duty 24 hours a day.

A. Proposed New Rule on Arbitration Agreements
As discussed previously,181 the revised regulations prohibit a nursing facility from obtaining any arbitration agreement at the time of admission. Unfortunately for consumers, this arbitration ban has been enjoined by a lawsuit brought by a nursing facility trade association, and CMS has declined to pursue an appeal.182

In the meantime, CMS has solicited comments on a revision of the regulations that would not only reverse the prohibition but also establish a framework for nursing facilities to require arbitration agreements as a condition of admission.183 Such a regulation, if promulgated, would be a significant backwards step. Currently, if a nursing facility requires arbitration as a condition of admission, the facility’s requirement is seen as a strong indication that the arbitration agreement is unconscionable and thus unenforceable.184 That indicator of unconscionability would be greatly weakened if federal regulations were to set standards based on arbitration being a requirement for admission.

B. Re-evaluation of Sections of the Final Rule and Implementation Delays
Since the publication and effective date of the final rule, implementation of the regulations as written has not been without challenges. The new administration and Congress elected in November 2016 have pursued an agenda of deregulation,185 and the nursing facility industry has actively sought to revise or repeal sections of the regulations they claim to be burdensome and to delay implementation of Phase 2 and 3 requirements.186 Six months after issuance of the revised regulations, CMS identified several areas of the regulations it intends to review “for modification or removal in an effort to reduce the burden and financial impact imposed on LTC [long-term care] facilities.”187 Those areas are the grievance process, quality assurance and performance improvement, and discharge notices to the long-term care ombudsman program. Feedback is being sought on “any additional areas of burden reduction and cost savings in LTC facilities.”188

In addition, CMS indicated its intent to institute a moratorium on enforcement remedies for specific Phase 2 requirements. Civil money penalties, denial of payment, and/or termination as an approved Medicare/Medicaid nursing facility are not being used for an 18-month period beginning November 2017. Facilities found out of compliance with Phase 2 requirements may instead be given a directed plan of correction or directed in-service training.189 Also, CMS is “holding constant for one year” the inspection ratings on Nursing Home Compare for any surveys taking place after November 28, 2017.190

Lastly, in Fall 2017, CMS indicated its intent to issue a new proposed rule in 2018 that would reform the long-term care facility requirements that “CMS has identified as unnecessary, obsolete or excessively burdensome on facilities.”191

C. Survey Process
Although the 2016 issuance of the revised federal regulations has made significant changes to the substantive standards governing nursing facilities, that regulatory package has made few changes to the enforcement system. The main changes are modified definitions of “abuse,” “neglect,” “nurse aide,” “substandard quality of care,” and other terms.192

Before the release of the revised regulations, however, CMS revised the guidance on assessment of money penalties. The central issue is whether money penalties should be assessed on a per instance or per day basis. Per day penalties generally are considered a more impactful remedy because the amount of the penalty continues to mount until the facility remedies the problem.

Under the new guidance, survey agencies generally will assess per instance penalties for violations that begin prior to a survey and are deemed resolved at the time of the survey. Among such violations, however, a per day penalty will be assessed for those of a relatively higher scope and severity, for certain violations involving abuse, and for repeat violations of a higher scope and severity.193

If, on the other hand, a violation exists at the time of the survey, CMS guidance directs default to a per day penalty. The exceptions to this default, however, are significant. Per instance penalties are appropriate for addressing a “singular event of actual harm” of a specified scope and severity and for ongoing noncompliance with a certain scope and severity of violation if the facility has a “good compliance history.”194

IV. Conclusion
The revised regulations contain both positives and negatives for nursing facility residents and their advocates. The positives include expanded requirements for person-centered care, care planning, and resident choice and participation in health care services. The revised regulations also strengthen the NHRA’s prohibitions against facilities requiring a third-party guarantee of payment or a waiver of legal rights, and protections for residents from improper transfer/discharge. In addition, the regulations have added requirements for a facility grievance official and procedures.

It is disappointing, however, that the revised regulations do not require a registered nurse around the clock or a minimum staffing standard. Even though unnecessary restraints are included in the definition of “abuse” and the requirements for drug regimen reviews and reporting of unnecessary drugs were expanded, the revised regulations compromise the focus on ending the misuse of antipsychotic medications.

In addition, the Trump administration has proposed a repeal of the ban on predispute arbitration agreements and delayed enforcement remedies for certain Phase 2 requirements. The administration is also considering the repeal or further modification of other revised regulations (e.g., regulations on grievance procedures, quality assurance, and ombudsman discharge notices).

Even though CMS and the states are responsible for implementing these regulations, regulation implementation, if left solely to government agencies and providers, is usually scattershot and inadequate. For the revised regulations to truly become the national standard of care, nursing facility residents and their advocates must be prepared to assert resident rights over and over again. Another unfortunate reality is that nursing facilities may be hostile or apathetic toward the revised regulations and the survey agencies can only do so much, given that federal law requires surveys only once a year. For these reasons, it is up to residents, families, and advocates to be knowledgeable about the federal law and make nursing facilities accountable when they fall short.

Citations
1 81 Fed. Reg. 68688 (Oct. 4, 2016).

2 42 U.S.C. §§ 1395i-3 (Medicare), 1396r (Medicaid).

3 Inst. of Med. Comm. on Nursing Home Reg., Improving the Quality of Care in Nursing
Homes, https://www.nap.edu/read/646/chapter
/1
(1986) (accessed Dec. 28, 2017).

4 81 Fed. Reg. at 68825–68831, tbl. 1, tit. 42, cross-references to pt. 483, subpt. B; see also Natl. Consumer Voice for Quality Long-Term Care, Side-by-Side Comparison of Revised Previous Federal Nursing Home Regulations, http://
theconsumervoice.org/uploads/files/issues/Side
-by-Side_Comparison_of_Revised_and_Pre
vious_Requirements_of_Participation_1-20
-2017.pdf
(accessed Dec. 28, 2017).

5 81 Fed. Reg. at 68696–68698; see also Natl. Consumer Voice for Quality Long-Term Care, Revised Federal Nursing Home Regulations, Implementation Timeframes, http://the
consumervoice.org/issues/issue_details/proposed
-revisions-to-the-federal-nursing-home-regula
tions#Implementation Timeframes
(accessed Dec. 28, 2017).

6 Memo. from Ctrs. for Medicare & Medicaid Servs., Dir., Survey & Certification Group, to St. Survey Agency Dirs., Revision to State Operations Manual (SOM) Appendix PP for Phase 2, F-Tag Revisions, and Related Issues,
https://www.cms.gov/Medicare/Provider-Enroll
ment-and-Certification/SurveyCertificationGen
Info/Downloads/Survey-and-Cert-Letter-17
-36.pdf
(June 30, 2017).

7 See infra at sections II.A.3 and III.

8 Eric Carlson, Benefits for Consumers in the Revised Nursing Facility Regulations, Natl. Ctr. on L. & Elder Rights Issue Br., https://ncler.acl.
gov/pdf/Benefits-for-Consumers-in-the-Revised
-Nursing-Facility-Regulations.pd
f (Jan. 2017).

9 42 C.F.R. § 483.10(g)(10)(v).

10 Carlson, supra n. 8.

11 42 C.F.R. § 483.15(a)(2)(iii).

12 Id. at § 483.10(i)(1)(ii).

13 For example, even though the state of California addressed this and other admission agreement issues by requiring nursing homes to use a Standard Admission Agreement (SAA), nursing homes could request modifications of the SAA if they could demonstrate unique circumstances. A 2014 study found that nursing homes most often requested modifications to the SAA that would require third parties to sign, add mandatory arbitration provisions, or reduce resident rights. Cal. Advocs. for Nursing Home Reform, No Standards: How Nursing Homes Attempted to Undermine California’s Standard Admission Agreement and Diminish Residents’ Rights, http://www.canhr.
org/reports/2014/No_Standards_in_Nursing_
Homes_Report.pdf
(2014).

14 42 C.F.R. § 483.15(a)(3).

15 Id. at § 483.15(3).

16 821 A.2d 835 (Conn. App. 2003).

17 Amy Parise DeLaney, Maneuvering the Labyrinth of Long-Term Care Admissions Contracts, 4 NAELA J. 35 (2008); Edward E. Zetlin, Relentless Pursuit: Claims Against Third Parties in Nursing Facility Collection Cases, 1 NAELA J. 99 (2005), n. 1 (citing 56 Fed. Reg. 4881 (Sept. 26, 1991)).

18 Sunrise, supra n. 16.

19 Carlson, supra n. 8 (citing Eric M. Carlson, Long-Term Care Advocacy § 3.06[2][a] (LexisNexis 1999)).

20 81 Fed. Reg. at 68688, 68732.

21 42 C.F.R. § 483.70(n).

22 217 F. Supp. 3d 921 (N.D. Miss. Nov. 7, 2016).

23 Id. at 929-39. The court said that plaintiffs relied on considerable statutory authority to support their claim that the prohibition conflicts with the Federal Arbitration Act (FAA), whereas CMS did not establish a strong factual basis for the prohibition in the administrative record and relied primarily on public comments, often from interested parties. The court also said that CMS might have harmonized the prohibition with the FAA by giving special attention to the issue of mental incompetency as a justification for distinguishing nursing home arbitration agreements.

24 82 Fed. Reg. 26649 (June 8, 2017).

25 42 C.F.R. § 483.15(a)(6).

26 80 Fed. Reg. 42167 (July 16, 2015).

27 Natl. Consumer Voice for Quality Long-Term Care, Ctr. for Medicare Advoc., & J. in Aging, A Closer Look at the Revised Nursing Facility Regulations: Admission, J. in Aging Issue Br.,
http://www.justiceinaging.org/wp-content/up
loads/2017/03/Revised-Nursing-Facility-Reg
ulations_Admission.pdf
(accessed Dec. 28, 2017).

28 81 Fed. Reg. at 68688, 68731.

29 42 C.F.R. § 483.5.

30 Id. at § 483.10(c)(5).

31 Id. at § 483.10(b)(3).

32 Id. at § 483.10(b)(7).

33 Id. at § 483.21(a)(1)(i).

34 Id. at § 483.21(a).

35 Id. at § 483.21(a)(3).

36 Id. at § 483.21(b)(1).

37 Id. at § 483.20(b)(1).

38 Id.

39 Id. at § 483.21(b)(2).

40 Id. at § 483.21(c).

41 Id. at § 483.21(b)(1)(i).

42 Id. at § 483.21(b)(1)(iv)(A).

43 Id. at § 483.21(b)(1)(iv)(B).

44 Id. at § 483.21(b)(1)(iv)(C).

45 Id. at § 483.21(b)(2)(ii).

46 Id. at § 483.21(b)(2)(ii)(E).

47 Id. at § 483.21(b)(3).

48 Id. at § 483.21(c).

49 Id. at § 483.21(c)(1).

50 Id. at § 483.21(c)(1)(iii).

51 Id. at § 483.21(c)(1)(iv).

52 Id. at § 483.21(c)(1)(ii).

53 Id. at § 483.21(c)(1)(vii)(C).

54 Id. at § 483.21(c)(2).

55 Id. at § 483.10(a)(1).

56 Id. at § 483.10(a)(2) (previously 42 C.F.R. § 483.12(c)).

57 Id. at § 483.10(b)(1)–(2).

58 80 Fed. Reg. at 42182 (citing 570 U.S. 12, 133 S. Ct. 2675 (2013)).

59 42 C.F.R. § 483.10(b)(3).

60 80 Fed. Reg. at 42181.

61 42 C.F.R. § 483.10(b)(7)(i).

62 Id. at § 483.10(b)(5).

63 Id. at § 483.10(b)(6).

64 Id. at § 483.10(c).

65 Id. at § 483.10(c)(3).

66 Id. at § 483.10(b)(7)(ii).

67 80 Fed. Reg. at 42182.

68 Id.

69 42 C.F.R. § 483.10(d)(3).

70 Id. at § 483.10(e)(1).

71 Id. at § 483.12(a)(2).

72 80 Fed. Reg. at 42240.

73 Breanna M. Taylor, Drugging Grandma: The Severe Dangers of Chemically Restraining Nursing Home Residents With Potent Antipsychotic and Psychotropic Pharmaceuticals, 24 Elder L.J. 213 (2016).

74 See infra section II(F).

75 42 C.F.R. § 483.10(e)(2).

76 Id. at § 483.10(e)(3).

77 Id. at § 483.10(e)(4).

78 Id. at § 483.10(e)(5).

79 80 Fed. Reg. at 42182.

80 42 C.F.R. § 483.10(e)(6).

81 Id. at § 483.10(f)(1)–(2).

82 Id. at § 483.10(f)(3).

83 Id. at § 483.24(c).

84 Ctrs. for Medicare & Medicaid Servs., CMS Manual System, Publ. 100-7, State Operations Provider Certification, SUBJECT: Revision to State Operations Manual (SOM) Appendix PP for Phase 2, F-Tag Revisions, and Related Issues
25, http://theconsumervoice.org/uploads/files
/issues/Revised_Interpretive_Guidelines_with
_Clickable_TOC.pdf
(effective Nov. 28, 2017).

85 81 Fed. Reg. at 68718–68719.

86 42 C.F.R. § 483.10(f)(4).

87 Id. at § 483.10(f)(4)(ii)–(iii).

88 Ctrs. for Medicare & Medicaid Servs., surveyor’s guideline on 42 C.F.R. § 483.10(f)(4)(iii)–(iv), in State Operations Manual, Appendix PP – Guidance to Surveyors for Long Term Care Facilities, https://www.cms.gov/
Regulations-and-Guidance/Guidance/Manuals
/downloads/som107ap_pp_guidelines_ltcf.pdf
(Nov. 22, 2017).

89 42 C.F.R. § 483.10(f)(4)(vi)(C)(D).

90 Id. at § 483.10(f)(4)(iv).

91 Id. at § 483.10(f)(6)–(7).

92 Id. at § 483.10(g)(9).

93 Id. at § 483.10(g)(6)–(7).

94 Id. at § 483.10(g)(4); proposed rules Fed. Reg. 42183.

95 Id. at § 483.10(g)(2)(i).

96 Id. at § 483.10(g)(2)(ii).

97 Id. at § 483.10(h)(2).

98 81 Fed. Reg. at 68688, 68716.

99 42 C.F.R. § 483.10(i).

100 Id. at § 483.10(i)(1)(i)–(ii).

101 Id. at § 483.10(j).

102 Id. at § 483.10(j)(4)(v).

103 Id. at § 483.10(j)(4)(iii).

104 Id. at § 483.10(j)(4)(iv).

105 Id. at § 483.10(j)(4)(vi).

106 Id. at § 483.10(j)(4)(i).

107 Id. at § 483.10(k).

108 Id. at § 483.35.

109 Id.

110 Required at 42 C.F.R. § 483.70(e).

111 42 U.S.C. §§ 1395i-3(b)(4)(C), 1396r(b)(4)(C).

112 42 C.F.R. § 483.35(a)(3).

113 Id. at § 483.35(a)(4).

114 Id. at § 483.35(g).

115 See id. at § 483.70(e).

116 81 Fed. Red. at 68,698.

117 Id.

118 42 C.F.R. § 483.95(c).

119 Id. at § 483.95(g)(1).

120 Id. at § 483.95(g)(2)–(3).

121 Id. at § 483.95(g)(4).

122 Id. at § 483.25.

123 Id. at § 483.25(a).

124 Id. at § 483.25(b).

125 Id. at § 483.25(c).

126 Id. at § 483.25(d).

127 Id. at § 483.25(e).

128 Id. at § 483.25(g).

129 Id. at § 483.25(l).

130 Id.

131 Id. at § 483.25(m).

132 Id. at § 483.25(n).

133 Id. at § 483.45(a).

134 Id. at § 483.45.

135 Id. at § 483.45(b).

136 Id. at § 483.45(c)(1).

137 Id. at § 483.45(c)(2).

138 Id. at § 483.45(c)(4).

139 Id.

140 Id. at § 483.45(c)(5).

141 Id. at § 483.45(d).

142 Id. at § 483.45(e).

143 Id. at § 483.45(e)(1).

144 Id. at § 483.45(e)(3).

145 Id. at § 483.45(e)(3)–(5).

146 42 U.S.C. §§ 1395i-3(c)(2)(A), 1396r(c)(2)(A).

147 42 C.F.R. § 483.15(c)(1)(i)(E); see 42 U.S.C. § 1396r(c)(2)(A).

148 Pioneer Ridge Nursing Facility Operations, L.L.C. v. Ermey, 203 P.3d 4, 8–9 (Kan. App. 2009); but see Dayspring of Miami Valley v. Shepherd, 2007 Ohio 2589 (Ohio App. 2d Dist. 2007) (hearing officer had erred by treating payment of current bill as reason to deny discharge for nonpayment).

149 42 C.F.R. § 483.15(c)(1)(i)(E). This same protection previously was located in the CMS surveyor’s guidelines but not in the regulations.

150 Id. at § 483.15(c)(1)(i)(C).

151 Id. at § 483.15(c)(1)(ii).

152 Id. at § 483.15(c)(2)(ii); see 42 U.S.C. §§ 1395i-3(c)(2)(A), 1396r(c)(2)(A).

153 42 C.F.R. § 483.15(c)(2)(i)(B).

154 Id. at § 483.15(a)(6); see supra at II.A.4 for previous discussion of this issue.

155 42 U.S.C. §§ 1395i-3(2)(B), 1396r(2)(B).

156 42 C.F.R. § 483.15(c)(3).

157 Id. at § 483.15(c)(4).

158 Id. at § 483.15(c)(3)(i).

159 42 U.S.C. §§ 1395i-3(c)(2)(A), 1396r(c)(2)(A).

160 42 C.F.R. § 483.15(c)(1)(i).

161 Ctrs. for Medicare & Medicaid Servs., surveyor’s guideline on 42 C.F.R. § 483.15(c), supra n. 87.

162 Id.

163 Id.

164 Id.

165 42 U.S.C. § 1396r(c)(2)(D)(i), (ii); 42 C.F.R. § 483.15(d).

166 42 U.S.C. § 1396r(c)(2)(D)(iii).

167 42 C.F.R. § 483.15(e)(i).

168 Id. at § 483.15(e)(1)(ii).

169 Ctrs. for Medicare & Medicaid Servs., surveyor’s guideline on 42 C.F.R. § 483.15(e)(1), supra n. 87.

170 42 U.S.C. §§ 1395i-3(c)(1)(A)(ii), 1396r(c)(1)(A)(ii).

171 42 C.F.R. § 483.12(a)(2).

172 Id. at § 483.12(a)(3).

173 Id. at §§ 483.12(b), 483.95(c).

174 Id. at § 483.12(c)(1).

175 Id. at § 483.12(a)(4).

176 See 42 U.S.C. § 1320b-25.

177 42 C.F.R. § 483.12(b)(5)(i)(A).

178 Id. at § 483.12(b)(5)(iii).

179 Am. Health Care Ass’n & Natl. Ctr. for Assisted Living, Requirements of Participation for Nursing Centers Are Onerous and Unnecessary
Regulation, https://www.ahcancal.org/advocacy/
issue_briefs/Issue%20Briefs/RoP%20Updated
%20Ask%20v2.pdf
(accessed Jan. 5, 2018).

180 81 Fed. Reg. at 68692–68695.

181 See supra at II.A.3.

182 See Am. Health Care Ass’n v. Burwell, 217 F. Supp. 3d 921 (N.D. Miss. 2016).

183 82 Fed. Reg. at 26649 (June 8, 2017).

184 See e.g. Ostroff v. Alterra Healthcare Corp., 433 F. Supp. 2d 538, 544 (E.D. Pa. 2006) (arbitration as condition of admission).

185 Ltr. from 120 H. of Reps. members to Dept. of Health & Human Servs. Acting Sec. Eric Hargan & Ctrs. for Medicare & Medicaid Servs. Adminstr. Seema Verma, Concerns About CMS Rule Updating “Requirements of Participation” for Skilled Nursing Facilities/Nursing Facilities (SNF/NF), http://renacci.
house.gov/_cache/files/8ad42967-7fd9-4d12-a
baa-f65dda6e0426/renacci-rop-final-letter-10.
11.17.pdf (Oct. 11, 2017).

186 Holly Fechner & Matthew S. Shapanka, Use of the Congressional Review Act in the 115th Congress to Overturn Obama Administration
Regulations, Natl. L. Rev., https://www.nat
lawreview.com/article/use-congressional-review
-act-115th-congress-to-overturn-obama-admin
istration
(Nov. 29, 2016); Ltr. from Mark Parkinson, Pres. & CEO, Am. Health Care Ass’n & Natl. Ctr. for Assisted Living, to Dept. of Health & Human Servs. Sec. Thomas E. Price, Concerns About Medicaid Underfunding, Medicare Cuts, and Over-Regulation, http://www.
ihca.com/Files/Comm-Pub/AHCA-Final-Price
-Ltr-3.9.17.pdf
(Mar. 9, 2017); comments by Jennifer Hilliard, LeadingAge Calls for Delay, Revision of Nursing Home Requirements of Participation, LeadingAge, http://www.lead
ingage.org/regulation/leadingage-calls-delay-re
vision-nursing-home-requirements-participa
tion
(Aug. 28, 2017).

187 82 Fed. Reg. at 21088–21089 (May 4, 2017).

188 Id. at 21089.

190 Memo. from David R. Wright, Dir., Ctrs. for Medicare & Medicaid Servs., Ctr. for Clinical Stands. & Quality, Survey & Certification Group, to St. Survey Agency Dirs., Revision to State Operations Manual (SOM) Appendix PP for Phase 2, F-Tag Revisions, and Related Issues, S&C: 17-36-NH, https://www.cms.
gov/Medicare/Provider-Enrollment-and-Certi
fication/GuidanceforLawsAndRegulations/Down
loads/Survey-and-Cert-Memo-Revision-SOM
-Appendix-PP-Phase-2.pdf
(June 30, 2017).

191 Unified Agenda of Regulatory and Deregulatory Actions, Fall 2017, RIN: 0938-AT36, https://
www.reginfo.gov/public/do/eAgendaViewRule
?pubId=201710&RIN=0938-AT36&opera
tion=OPERATION_PRINT_RULE
.

192 See 42 C.F.R. § 488.301.

193 Ctrs. for Medicare & Medicaid Servs., CMP Analytic Tool, User’s Guide, Version 1.3, § 2.4.2.2, http://ltcombudsman.org/uploads/
files/library/cmp-analytic-tool-user-guide.pdf

(accessed Jan. 5, 2018).

194 Id. at § 2.4.2.3.

About the Authors

Eric Carlson, Esq., is a directing attorney for Justice in Aging. He conducts advocacy and research
to improve Medicaid long-term services and supports (LTSS) around the country, and co-counsels
litigation on consumers’ behalf. Mr. Carlson speaks frequently on LTSS issues, and is author of the
legal treatise Long-Term Care Advocacy (Matthew Bender and Co.) and the advocacy guide 20
Common Nursing Home Problems – and How to Resolve Them.

Lori Smetanka, Esq., is the Executive Director of the National Consumer Voice for Quality Long-
Term Care, the leading national nonprofit advocacy organization representing consumers receiving
long-term care and services in nursing homes, assisted living facilities, and home and community
based settings. As Executive Director, Lori oversees and contributes to the organization’s policy,
advocacy, and program activities; leads the organization’s fundraising efforts; establishes strategic
partnerships with organizations and federal agencies working on issues related to the provision of
long-term services and supports; and establishes the strategic direction of the organization.

Nancy Stone, Esq., practices elder law in the Houston metropolitan area and serves on the
National Consumer Voice for Quality Long-Term Care board of directors. She completed joint
degrees in law and public health and worked in public policy positions in the Texas Medical Center
before establishing a solo elder law practice in 2004. She has served as an officer, director, and
chair of the public policy committee in the Texas NAELA Chapter and received the chapter’s
Outstanding Achievement award.