81 FR 68688 - Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities
DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services
Federal Register Volume 81, Issue 192 (October 4, 2016)
Page Range
68688-68872
FR Document
2016-23503
This final rule will revise the requirements that Long-Term Care facilities must meet to participate in the Medicare and Medicaid programs. These changes are necessary to reflect the substantial advances that have been made over the past several years in the theory and practice of service delivery and safety. These revisions are also an integral part of our efforts to achieve broad-based improvements both in the quality of health care furnished through federal programs, and in patient safety, while at the same time reducing procedural burdens on providers.
Federal Register, Volume 81 Issue 192 (Tuesday, October 4, 2016)
[Federal Register Volume 81, Number 192 (Tuesday, October 4, 2016)]
[Rules and Regulations]
[Pages 68688-68872]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2016-23503]
[[Page 68687]]
Vol. 81
Tuesday,
No. 192
October 4, 2016
Part III
Department of Health and Human Services
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Centers for Medicare & Medicaid Services
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42 CFR Parts 405, 431, 447, 482, et al.;
Medicare and Medicaid Programs; Reform of Requirements for Long-Term
Care Facilities; Final Rule
Federal Register / Vol. 81 , No. 192 / Tuesday, October 4, 2016 /
Rules and Regulations
[[Page 68688]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 405, 431, 447, 482, 483, 485, 488, and 489
[CMS-3260-F]
RIN 0938-AR61
Medicare and Medicaid Programs; Reform of Requirements for Long-
Term Care Facilities
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Final rule.
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SUMMARY: This final rule will revise the requirements that Long-Term
Care facilities must meet to participate in the Medicare and Medicaid
programs. These changes are necessary to reflect the substantial
advances that have been made over the past several years in the theory
and practice of service delivery and safety. These revisions are also
an integral part of our efforts to achieve broad-based improvements
both in the quality of health care furnished through federal programs,
and in patient safety, while at the same time reducing procedural
burdens on providers.
DATES: Effective date: These regulations are effective on November 28,
2016.
Implementation date: The regulations included in Phase 1 must be
implemented by November 28, 2016.
The regulations included in Phase 2 must be implemented by November
28, 2017.
The regulations included in Phase 3 must be implemented by November
28, 2019.
A detailed discussion regarding the different phases of the
implementation timeline can be found in Section B. II ``Implementation
Date.''
FOR FURTHER INFORMATION CONTACT:
LTC Regulations Team, (410) 786-6633: Sheila Blackstock, Ronisha
Blackstone, Diane Corning, Lisa Parker.
SUPPLEMENTARY INFORMATION:
Acronyms
Because of the many terms to which we refer by acronym in this
final rule, we are listing the acronyms used and their corresponding
meanings in alphabetical order below:
AAA Area Agencies on Aging
ACL Administration for Community Living
ADL Activities of Daily Living
AHCA American Health Care Association
AHLA American Health Lawyers Association
ANSI American National Standards Institute
ASPE Assistant Secretary for Planning and Evaluation
BPSD Behavioral and Psychological Symptoms of Dementia
CASPER Certification and Survey Provider Enhanced Reports
CIL Centers for Independent Living
CLIA Clinical Laboratory Improvement Amendment
CMS Centers for Medicare & Medicaid Services
CNS Clinical Nurse Specialist
CPR Cardiopulmonary Resuscitation
DoN Director of Nursing
EHR Electronic Health Records
FDA Food and Drug Administration
GAO Government Accountability Office
HACCP Hazard Analysis and Critical Control Point
HAI Healthcare-Associated Infection
HHS U.S. Department of Health and Human Services
HIPAA Health Insurance Portability and Accountability Act of 1996
ICN International Council of Nurses
IDT Interdisciplinary Team
IG Interpretive Guidance
IP Infection Preventionist
IPCP Infection Prevention and Control Program
LSC Life Safety Code
LTC Long-Term Care
NATCEP Nurse Aide Training Competency Evaluation Program
MAR Medication Administration Record
MDS Minimum Data Set
NA Nurse Aide
NF Nursing Facility
NP Nurse Practitioner
OIG Office of the Inspector General
OMB Office of Management and Budget
ONC Office of the National Coordinator
PA Physician Assistant
PASARR Preadmission Screening and Resident Review
PIPs Performance Improvement Projects
PEU Protein-Energy under Nutrition
QA Quality Assurance
QAA Quality Assessment and Assurance
QAPI Quality Assurance and Performance Improvement
QIO Quality Improvement Organization
RFA Regulatory Flexibility Act
RN Registered Nurse
SNF Skilled Nursing Facility
WHO World Health Organization
Table of Contents
This final rule is organized as follows:
I. Background
A. Executive Summary
1. Purpose
2. Summary of the Major Provisions
3. Summary of Costs and Benefits
B. Statutory and Regulatory Authority of the Requirements for
Long-Term Care Facilities
C. Why revise the LTC requirements?
II. Provisions of the Proposed Regulation and Responses to Public
Comments
A. General Comments
B. Implementation Date
C. Basis and Scope (Sec. 483.1)
D. Definitions (Sec. 483.5)
E. Resident Rights (Sec. 483.10)
F. Facility Responsibilities (Sec. 483.11)
G. Freedom From Abuse, Neglect, and Exploitation (Sec. 483.12)
H. Transitions of Care (Sec. 483.15)
I. Resident Assessments (Sec. 483.20)
J. Comprehensive Resident-Centered Care Planning (Sec. 483.21)
K. Quality of Care and Quality of Life (Sec. 483.25)
L. Physician Services (Sec. 483.30)
M. Nursing Services (Sec. 483.35)
N. Behavioral Health Services (Sec. 483.40)
O. Pharmacy Services (Sec. 483.45)
P. Laboratory, Radiology, and Other Diagnostic Services (Sec.
483.50)
Q. Dental Services (Sec. 483.55)
R. Food and Nutrition Services (Sec. 483.60)
S. Specialized Rehabilitative Services (Sec. 483.65)
T. Outpatient Rehabilitative Services (Sec. 483.67)
U. Administration (Sec. 483.70)
V. Quality Assurance and Performance Improvement (Sec. 483.75)
W. Infection Control (Sec. 483.80)
X. Compliance and Ethics Program (Sec. 483.85)
Y. Physical Environment (Sec. 483.90)
Z. Training Requirements (Sec. 483.95)
III. Provisions of the Final Regulations
IV. Long-Term Care Facilities Crosswalk
V. Collection of Information Requirements
VI. Regulatory Impacts
I. Background
A. Executive Summary
1. Purpose
Consolidated Medicare and Medicaid requirements for participation
(requirements) for long term care (LTC) facilities (42 CFR part 483,
subpart B) were first published in the Federal Register on February 2,
1989 (54 FR 5316). These regulations have been revised and added to
since that time, principally as a result of legislation or a need to
address a specific issue. However, they have not been comprehensively
reviewed and updated since 1991 (56 FR 48826, September 26, 1991),
despite substantial changes in service delivery in this setting.
Since the current requirements were developed, significant
innovations in resident care and quality assessment practices have
emerged. In addition, the population of LTC facilities has changed, and
has become more diverse and more clinically complex. Over the last two
to three decades, extensive, evidence-based research has been conducted
and has enhanced our knowledge about resident safety, health outcomes,
individual choice, and quality assurance and performance improvement.
In light of these changes, we recognized the need to evaluate the
regulations on a comprehensive basis, from both a structural and a
content perspective. Therefore, we reviewed regulations in an effort to
improve the quality of life, care, and services in LTC
[[Page 68689]]
facilities, optimize resident safety, reflect current professional
standards, and improve the logical flow of the regulations.
Specifically, we are adding new requirements where necessary,
eliminating duplicative or unnecessary provisions, and reorganizing the
regulations as appropriate. Many of the revisions are aimed at aligning
requirements with current clinical practice standards to improve
resident safety along with the quality and effectiveness of care and
services delivered to residents. Additionally, we believe that these
revisions will eliminate or significantly reduce those instances where
the requirements are duplicative, unnecessary, and/or burdensome.
2. Summary of Provisions
Basis and Scope (Sec. 483.1)
We have added the statutory authority citations for
sections 1128I(b) and (c) and section 1150B of the Social Security Act
(the Act) to include the compliance and ethics program, quality
assurance and performance improvement (QAPI), and reporting of
suspicion of a crime requirements to this section.
Definitions (Sec. 483.5)
We have added the definitions for ``abuse'', ``adverse
event'', ``exploitation'', ``misappropriation of resident property'',
``mistreatment'', ``neglect'', ``person-centered care'', ``resident
representative'', and ``sexual abuse'' to this section.
Resident Rights (Sec. 483.10)
We are retaining all existing residents' rights and
updating the language and organization of the resident rights
provisions to improve logical order and readability, clarify aspects of
the regulation where necessary, and updating provisions to include
advances such as electronic communications.
Freedom From Abuse, Neglect, and Exploitation (Sec. 483.12)
We are requiring facilities to investigate and report all
allegations of abusive conduct. We also are specifying that facilities
cannot employ individuals who have had a disciplinary action taken
against their professional license by a state licensure body as a
result of a finding of abuse, neglect, mistreatment of residents or
misappropriation of their property.
Admission, Transfer, and Discharge Rights (Sec. 483.15)
We are requiring that a transfer or discharge be
documented in the medical record and that specific information be
exchanged with the receiving provider or facility when a resident is
transferred.
Resident Assessments (Sec. 483.20)
We are clarifying what constitutes appropriate
coordination of a resident's assessment with the Preadmission Screening
and Resident Review (PASARR) program under Medicaid. We are also adding
references to statutory requirements that were inadvertently omitted
from the regulation when we first implemented sections 1819 and 1919 of
the Act.
Comprehensive Person-Centered Care Planning (Sec. 483.21) *New
Section*
We are requiring facilities to develop and implement a
baseline care plan for each resident, within 48 hours of their
admission, which includes the instructions needed to provide effective
and person-centered care that meets professional standards of quality
care.
We are adding a nurse aide and a member of the food and
nutrition services staff to the required members of the
interdisciplinary team that develops the comprehensive care plan.
We are requiring that facilities develop and implement a
discharge planning process that focuses on the resident's discharge
goals and prepares residents to be active partners in post-discharge
care, in effective transitions, and in the reduction of factors leading
to preventable re-admissions. We are also implementing the discharge
planning requirements mandated by The Improving Medicare Post-Acute
Care Transformation Act of 2014 (IMPACT Act) by revising, or adding
where appropriate, discharge planning requirements for LTC facilities.
Quality of Care (Sec. 483.24)
We are requiring that each resident receive and the
facility provide the necessary care and services to attain or maintain
the highest practicable physical, mental, and psychosocial well-being,
consistent with the resident's comprehensive assessment and plan of
care.
Quality of Life (Sec. 483.25)
Based on the comprehensive assessment of a resident, we
are requiring facilities to ensure that residents receive treatment and
care in accordance with professional standards of practice, the
comprehensive person-centered care plan, and the residents' choices.
Physician Services (Sec. 483.30)
We are allowing attending physicians to delegate dietary
orders to qualified dietitians or other clinically qualified nutrition
professionals and therapy orders to therapists.
Nursing Services (Sec. 483.35)
We are adding a competency requirement for determining the
sufficiency of nursing staff, based on a facility assessment, which
includes but is not limited to the number of residents, resident
acuity, range of diagnoses, and the content of individual care plans.
Behavioral Health Services (Sec. 483.40)
We are adding a new section to subpart B that focuses on
the requirement to provide the necessary behavioral health care and
services to residents, in accordance with their comprehensive
assessment and plan of care.
We are adding ``gerontology'' to the list of possible
human services fields from which a bachelor degree could provide the
minimum educational requirement for a social worker.
Pharmacy Services (Sec. 483.45)
We are requiring that a pharmacist review a resident's
medical chart during each monthly drug regimen review.
We are revising existing requirements regarding
``antipsychotic'' drugs to refer to ``psychotropic'' drugs and define
``psychotropic drug'' as any drug that affects brain activities
associated with mental processes and behavior. We are requiring several
provisions intended to reduce or eliminate the need for psychotropic
drugs, if not clinically contraindicated, to safeguard the resident's
health.
Laboratory, Radiology, and Other Diagnostic Services (Sec. 483.50)
*New Section*
We are clarifying that a physician assistant, nurse
practitioner or clinical nurse specialist may order laboratory,
radiology, and other diagnostic services for a resident in accordance
with state law, including scope-of-practice laws.
Dental Services (Sec. 483.55)
We are prohibiting SNFs and NFs from charging a Medicare
resident for the loss or damage of dentures determined in accordance
with facility policy to be the facility's responsibility, and we are
adding a requirement that the facility have a policy identifying those
instances when the loss or damage of dentures is the facility's
responsibility. We are requiring NFs to assist residents who are
eligible to apply for reimbursement of dental services under the
Medicaid state plan, where applicable.
[[Page 68690]]
We are clarifying that with regard to a referral for lost
or damaged dentures ``promptly'' means that the referral must be made
within 3 business days unless there is documentation of extenuating
circumstances.
Food and Nutrition Services (Sec. 483.60)
We are requiring facilities to provide each resident with
a nourishing, palatable, well-balanced diet that meets his or her daily
nutritional and special dietary needs, taking into consideration the
preferences of each resident. We are also requiring facilities to
employ sufficient staff, including the designation of a director of
food and nutrition service, with the appropriate competencies and
skills sets to carry out the functions of dietary services while taking
into consideration resident assessments and individual plans of care,
including diagnoses and acuity, as well as the facility's resident
census.
Specialized Rehabilitative Services (Sec. 483.65)
We have added respiratory services to those services
identified as specialized rehabilitative services.
Administration (Sec. 483.70)
We have largely relocated various portions of this section
into other sections of subpart B as deemed appropriate.
We require facilities to conduct, document, and annually
review a facility-wide assessment to determine what resources are
necessary to care for its residents competently during both day-to-day
operations and emergencies. Facilities are required to address in the
facility assessment the facility's resident population (that is, number
of residents, overall types of care and staff competencies required by
the residents, and cultural aspects), resources (for example,
equipment, and overall personnel), and a facility-based and community-
based risk assessment.
Binding Arbitration Agreements: We are requiring that
facilities must not enter into an agreement for binding arbitration
with a resident or their representative until after a dispute arises
between the parties. Thus, we are prohibiting the use of pre-dispute
binding arbitration agreements.
Quality Assurance and Performance Improvement (QAPI) (Sec. 483.75)
We are requiring all LTC facilities to develop, implement,
and maintain an effective comprehensive, data-driven QAPI program that
focuses on systems of care, outcomes of care and quality of life.
Infection Control (Sec. 483.80)
We are requiring facilities to develop an Infection
Prevention and Control Program (IPCP) that includes an Antibiotic
Stewardship Program and designate at least one Infection Preventionist
(IP).
Compliance and Ethics Program (Sec. 483.85) *New Section*
We are requiring the operating organization for each
facility to have in effect a compliance and ethics program that has
established written compliance and ethics standards, policies and
procedures that are capable of reducing the prospect of criminal,
civil, and administrative violations in accordance with section
1128I(b) of the Act.
Physical Environment (Sec. 483.90)
We are requiring facilities that are constructed, re-
constructed, or newly certified after the effective date of this
regulation to accommodate no more than two residents in a bedroom. We
are also requiring facilities that are constructed, or newly certified
after the effective date of this regulation to have a bathroom equipped
with at least a commode and sink in each room.
Training Requirements (Sec. 483.95) *New Section*
We are adding a new section to subpart B that sets forth
all the requirements of an effective training program that facilities
must develop, implement, and maintain for all new and existing staff,
individuals providing services under a contractual arrangement, and
volunteers, consistent with their expected roles.
3. Summary of Costs and Benefits
We estimate the total projected cost of this final rule will be
about $831 million in the first year and $736 million per year for
subsequent years. While this is a large amount in total, the average
costs per facility are estimated to be about $62,900 in the first year
and $55,000 per year for subsequent years. Although the overall
magnitude of cost related to this regulation is economically
significant, we note that these costs are significantly less than the
amount of Medicare and Medicaid spending for LTC services. According to
the 2015 Annual Report of the Medicare Trustees, payments for SNF
services from Medicare Part A were $29.92 billion for fiscal year 2015
and payments for NF services were $50.6 billion for fiscal year 2013
(see https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/CMS-Statistics-Reference-Booklet/2015.html).
We are unable to quantify the benefits of the final rule; however,
this final rule creates new efficiencies and flexibilities for
facilities that are likely to reduce avoidable hospital readmissions,
increase the rate of improvement in quality throughout facilities, and
create positive business benefits for facilities.
B. Statutory and Regulatory Authority of the Requirements for Long-Term
Care Facilities
In addition to specific statutory requirements set out in sections
1819 and 1919 and elsewhere in the Act, sections 1819(d)(4)(B) and
1919(d)(4)(B) of the Act permit the Secretary of the Department of
Health and Human Services (the Secretary) to establish any additional
requirements relating to the health, safety, and well-being of SNF and
NF residents, respectively, as the Secretary finds necessary.
Under sections 1866 and 1902 of the Act, providers of services
seeking to participate in the Medicare or Medicaid program, or both,
must enter into an agreement with the Secretary or the state Medicaid
agency, as appropriate. LTC facilities seeking to be Medicare and
Medicaid providers of services must be certified as meeting federal
participation requirements. LTC facilities include SNFs for Medicare
and NFs for Medicaid. The federal participation requirements for SNFs,
NFs, or dually certified facilities, are codified in the implementing
regulations at 42 CFR part 483, subpart B. Sections 1819(b)(1)(A) and
1919(b)(1)(A) of the Act provide that a SNF or NF must care for its
residents in such a manner and in such an environment as will promote
maintenance or enhancement of the quality of life of each resident. In
addition, the IMPACT Act (Pub. L. 113-185) amended Title XVIII of the
Act by, among other things, adding Section 1899B to the Act. Section
1899B(i) of the Act requires that certain providers, including long
term care facilities, take into account, quality, resource use, and
other measures to inform and assist with the discharge planning
process, while also accounting for the treatment preferences and goals
of care of residents.
The Affordable Care Act made a number of changes to the Medicare
and Medicaid programs. For instance, in an effort to increase
accountability for SNFs and NFs, section 6102 of the Affordable Care
Act established a new section 1128I of the Act. In general, section
1128I(b) of the Act requires LTC facilities to have in operation an
effective compliance and ethics program that is effective in preventing
and
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detecting criminal, civil, and administrative violations and in
promoting quality of care. Section 1128I(b)(2) of the Act specifies
that the Secretary, working jointly with the Inspector General of the
Department of Health and Human Services (HHS), shall promulgate
regulations for an effective compliance and ethics program for
operating organizations, which may include a model compliance program.
Further, section 1128I(c) of the Act adds a requirement for a quality
assurance and performance improvement program (QAPI). Lastly, in an
effort to promote dementia management and prevent abuse, section 6121
of the Affordable Care Act amended sections 1819(f)(2)(A)(i)(I) and
1919(f)(2)(A)(i)(I) of the Act by requiring dementia and abuse
prevention training to be included as part of training requirements for
nurse aides (NAs).
C. Why revise the long-term care requirements
On July 16, 2015, we published a proposed rule entitled, ``Medicare
and Medicaid Programs; Reform of Requirements for Long-Term Care
Facilities'' (80 FR 42168). In the proposed rule we included a robust
discussion about the history the LTC requirements and how the current
care and service delivery practices of LTC facilities have changed over
time. We encourage readers to refer to the proposed rule for this
discussion. As discussed in the proposed rule, the requirements for LTC
facilities have not been comprehensively reviewed and updated since
1991. In addition, the number of individuals accessing SNF care has
increased and the health concerns of individuals residing in LTC
facilities have become more clinically complex. These factors
demonstrated a need to comprehensively review the regulation and
informed our approach for revising the regulations. The following
discussion highlights our approach for revising the LTC regulations as
well as some of the most significant revisions set forth in this final
rule.
Facility Assessment and Competency-Based Approach
One of our goals in revising our minimum health and safety
requirements for LTC facilities is to ensure that our regulations align
with current clinical practice and allow flexibility to accommodate
multiple care delivery models to meet the needs of the diverse
populations that are provided services in these facilities. We have
taken a competency-based approach that focuses on achieving the
statutorily mandated outcome of ensuring that each resident is provided
care that allows the resident to maintain or attain their highest
practicable physical, mental, and psychosocial well-being. As discussed
in further detail, we are requiring facilities to assess their facility
capabilities and their resident population. This competency-based
approach is compatible with existing state requirements and business
practices, and promotes both efficiency and effectiveness in care
delivery.
Current HHS Quality Initiatives
This final rule is intended to meet the spirit of current HHS
quality initiatives that cut across various providers. As an effective
steward of public funds, CMS is committed to strengthening and
modernizing the nation's health care system to provide access to high
quality care and improved health at lower cost. This includes improving
the patient experience of care, both quality and satisfaction,
improving the health of populations, and reducing the per capita cost
of health care. As discussed below, we are implementing several
revisions consistent with these efforts.
Reducing Avoidable Hospitalizations
One goal of the HHS Partnership for Patients Initiative is to
reduce the number of individuals who experience a preventable
complication requiring rehospitalization. This effort aims to improve
the quality of care and services for individuals cared for in LTC
facilities. In support of this initiative, CMS launched the
``Initiative to Reduce Avoidable Hospitalizations among Nursing
Facility Residents'' (http://innovation.cms.gov/initiatives/rahnfr/) in
2012. This Initiative focuses on long-stay nursing facility residents
who are enrolled in the Medicare and Medicaid programs. Additional
information and resources are available at http://innovation.cms.gov/initiatives/rahnfr/index.html.
Consistent with the HHS focus on reducing unnecessary
hospitalization, this final rule strengthens the minimum health and
safety standards for LTC facilities in hopes of contributing to a
reduction in unnecessary hospital admissions of LTC facility residents.
We discuss those changes in more detail in the discussion that follows.
Healthcare Associated Infections
HHS is also working to reduce the incidence of healthcare
associated infections (HAIs) across providers. In recognition of HAIs
as an important public health and patient safety issue, HHS is
sponsoring the ``National Action Plan to Prevent HAIs.'' This
initiative seeks to coordinate and maximize the efficiency of
prevention efforts across the federal government (http://www.hhs.gov/ash/initiatives/hai/actionplan/). Given the growing number of
individuals receiving care in LTC settings and the presence of more
complex medical care, these individuals are at an increased risk for
HAIs. To advance these initiatives, this final rule implements
revisions that we believe will provide more opportunities to achieve
broad based improvement and contribute to reduced healthcare costs,
while allowing for targeted interventions specific to each LTC
facility.
Behavioral Health
On March 29, 2012, CMS launched an initiative aimed at improving
behavioral healthcare and safeguarding LTC facility residents from the
use of unnecessary antipsychotic medications, the National Partnership
to Improve Dementia Care in Nursing Homes. As part of the initiative,
CMS has developed a national action plan that uses a multidimensional
approach including public reporting, raising public awareness,
regulatory oversight, and technical assistance/training and research.
This plan is targeted at enhancing person-centered care for LTC
facility residents, particularly those with dementia-related behaviors
(https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/National-Partnership-to-Improve-Dementia-Care-in-Nursing-Homes.html).
Similarly, with regard to minimum health and safety standards, this
final rule implements regulatory changes that may lead to a reduction
in the unnecessary use of antipsychotic medication and improvements in
the quality of behavioral healthcare.
Health Information Technology
HHS also has a number of initiatives designed to encourage and
support the adoption of health information technology and to promote
nationwide health information exchange to improve health care. The
Department is committed to accelerating health information exchange
(HIE) through initiatives including: (1) Establishing a coordinated
governance framework and process for nationwide health IT
interoperability; (2) improving technical standards and implementation
guidance for sharing and using a common clinical data set; (3)
enhancing incentives for sharing electronic health information
according to common technical standards, starting with a common
clinical data set; and (4) clarifying
[[Page 68692]]
privacy and security requirements that enable interoperability. This
strategy is described in greater detail in ``Connecting Health and Care
for the Nation: A Shared Nationwide Interoperability Roadmap'',
available at https://www.healthit.gov/sites/default/files/hie-interoperability/nationwide-interoperability-roadmap-final-version-1.0.pdf. The use of such technology can effectively and efficiently
help facilities and other providers improve internal care delivery
practices, support the exchange of important information across care
team members (including patients and caregivers) during transitions of
care, and enable reporting of electronically specified clinical quality
measures (eCQMs).
Trauma-Informed Care
HHS has also undertaken broad-based activities to support Americans
that have specific needs to be considered in delivering health care and
other services. Activities include raising awareness about the special
care needs of trauma survivors, including a targeted effort to support
the needs of Holocaust survivors living in the United States. Trauma
survivors, including veterans, survivors of large-scale natural and
human-caused disasters, Holocaust survivors and survivors of abuse, are
among those who may be residents of long-term care facilities. For
these individuals, the utilization of trauma-informed approaches is an
essential part of person-centered care. Person-centered care that
reflects the principles set forth in SAMSHA's ``Concept of Trauma and
Guidance for a Trauma-Informed Approach,'' HHS Publication No. (SMA)
14-4884, available at http://store.samhsa.gov/shin/content/SMA14-4884/SMA14-4884.pdf, will help advance the quality of care that a resident
receives and, in turn, can substantially improve a resident's quality
of life.
II. Provisions of the Proposed Regulation and Response to Public
Comments
In response to our July 16, 2015 proposed rule (80 FR 42168), we
received over 9,800 public comments. Commenters included long-term care
consumers, advocacy groups for long-term care consumers, organizations
representing providers of long-term care and senior service, long-term
care ombudsman, state survey agencies, various health care
associations, legal organizations, and many individual health care
professionals. Below, we have organized our response to comments as
follows: A. General Comments; B. Implementation, and C. Public Comments
by Regulatory Section.
A. General Comments
Comment: Most commenters expressed overall support for the proposed
revisions to the requirements. Commenters agreed that reforms to the
existing requirements are necessary to ensure high quality care and
quality of life in LTC facilities across the nation.
Specifically, many commenters support the change in focus towards
person-centered care. One commenter stated that ``[t]he rule would
require that facilities learn more about who the resident is as a
person, provide greater support for resident preferences and give
residents increased control and choice. This focus on person-centered
care and culture change would improve both the resident's quality of
life and quality of care.'' Commenters also expressed support for
improved protections of resident's rights, protections against abuse
and neglect, and a greater emphasis on resident and representative
participation in care planning. Commenters also stated that change is
necessary to reflect current standards of practice, and support our use
of geriatrics-focused medical literature in developing the proposed
requirements.
Response: We thank commenters for their support. Our intent in
issuing the proposed requirements was to improve the quality of care
and quality of life for residents of long term care facilities.
Comment: Some commenters commended CMS for the proposed revisions
to the requirements, while stating that CMS should have proposed
additional changes and reforms. For example, a few commenters stated
that we should have explicitly required facilities to accommodate
supported decision making, which is when an individual assists a
resident in making his or her own decisions, rather than making
decisions on their behalf. Commenters also expressed disappointment
that the proposed requirements did not directly address dementia care.
Response: We thank the commenters for their responses, and believe
that the flexible, person-centered nature of these requirements will
support facilities in addressing each resident's goals and needs. For
example, residents and their designated representatives can certainly
engage in supported decision making with their care team--nothing in
these requirements prohibits it. Further, we do address dementia care
in the Behavioral Health sections of this final rule.
Comment: Many commenters expressed general worries that the
proposed changes were too broad in scope, and that incremental changes
would be easier to implement and better for LTC residents. We directly
requested comments on the implementation of the revised requirements
and commenters overwhelmingly indicated their preference for a phased
implementation. Commenters also requested more time in which to submit
comments, due to the depth and volume of the proposed revisions.
Response: We acknowledge that these requirements may be difficult
to effectively implement within the standard delayed implementation
period (typically 60 days for more comprehensive rulemakings). We are
therefore implementing these requirements over a ``phase-in'' period.
Please see section II.B. of this rule, ``Implementation,'' for a
detailed discussion of the implementation timeframe. Also, in order to
allow sufficient time for public review of the proposed rule, we did
extend the public comment period by 30 days, instead of closing
submissions after the typical 60-day public comment period. We thank
the thousands of commenters who provided comments during the extended
period.
Comment: Some commenters expressed disappointment that we continue
to approach LTC facilities as health care institutions rather than
``homes.'' One commenter suggested we use the word ``nursing home''
instead of ``facility.''
Conversely, many commenters believe we should acknowledge that LTC
facilities are no longer necessarily de facto homes, but skilled health
care facilities providing more intensive care for shorter periods of
time, and that the requirements should address the specific needs of
shorter-stay residents, such as those who are rehabilitating after
medical events before returning to their private residence. For
example, these shorter stay residents (who usually stay for fewer than
30 days) are not likely interested in resident or family councils, or
concerned about selecting a roommate. Commenters also expressed that
short-stay individuals may not benefit from the same type of care
planning as would be appropriate for longer term residents.
Response: We recognize that for many residents, a LTC facility is
their home. That said, LTC facilities are specialized health care
settings for individuals not capable of living independently and are
not directly comparable to private residences. We do support LTC
facilities in developing a home-like environment,
[[Page 68693]]
and note that residents are indeed recognized as residents, even if
their stay is short.
We believe that the person-centered approach to care required in
this rulemaking allows for flexibility in care planning and resident
accommodations. A resident at the LTC facility for a short period of
time may have a shorter or more focused plan of care than a long-term
resident. Similarly, a short-term resident may elect not to participate
in resident councils.
Comment: One commenter, who stated that their facility provides
short-term rehab services following hospitalizations in addition to
long-term care, expressed the belief that our proposed requirements
would inhibit their ability to accept patients during evenings and
weekends. They stated that this may cause ``backups'' in hospital
discharges, and lead to patients being inappropriately discharged to
their private home.
Response: We do not agree that our revised requirements limit
admissions to long-term care facilities outside of weekday business
hours. We encourage LTC facilities to work with local hospitals to
ensure safe care transitions, and to exercise the flexibility allowed
by the requirements to establish admissions and care planning policies
appropriate for their community.
Comment: Commenters appreciated that CMS acknowledged and proposed
to incorporate the full scopes of practice for non-physician
practitioners related to actions that were formerly restricted to
physicians. They supported these changes for being both cost effective
and responsive to current standards of care.
Response: We agree and thank commenters for their support. Please
note that statute restricts some positions and tasks to physicians,
such as the requirement at section 1819(b)(6)(A) of the Act, which
requires that the care of every resident be provided under the
supervision of a physician. Where appropriate and permissible by
statute, we have allowed for flexibility in who may perform certain
tasks or services within their respective scopes of practice.
Comment: Some commenters stated that they saw no need for CMS to
revise requirements for LTC facilities. They expressed concerns that
the proposed requirements would be both excessively burdensome and
confusing. A few commenters expressly identified the regulatory
language of the proposed requirements as confusing. Commenters also
stated their belief that the current requirements are adequate, and
that changes would be detrimental to care.
Response: We thank the commenters for their input, but disagree
that changes to the LTC requirements are unnecessary. Current
requirements do not, in some respects, reflect advances in technology
and the science of care delivery. In addition, while it is true that
many facilities provide excellent care under the current requirements,
data and incidents continue to show that there are LTC facilities that
have room for improvement. These updated and revised requirements
establish a framework for those facilities to raise their quality of
care. We have reviewed and considered all comments, and in response to
concerns over burden, we have revised some proposed requirements and
burden estimates in this final rule. Where commenters brought up
specific concerns, we address those in the relevant parts of this rule.
Also, we have made clarifying revisions to several parts of the rule,
in order to improve understanding.
Comment: Commenters disagreed on whether the proposed requirements
align with current standards of practice. Some believe that current
standards of practice may be inadequate or stated that they already met
many of the newly proposed requirements. Others expressed concerns that
a number of the proposed requirements are unrealistic or contrary to
sound standards of practice.
Response: We recognize that standards of care are constantly
evolving and have therefore tried to create meaningful, yet
appropriately flexible, requirements. We thank the commenters for their
input, and point out that this regulation establishes revised baseline
requirements. These requirements are meant to ensure safe,
professional, patient-centered care in all Medicare-and Medicaid-
participating LTC facilities, while leaving room for facilities to
improve and excel. We commend those facilities who strive to improve
upon them and look forward to stakeholder feedback as the requirements
are implemented.
Comment: A few commenters stated that they do not support the
proposed reorganization of the Requirements of Participation and
disagreed with the assertion that the reorganization improves the
logical flow of the regulations. Commenters stated that working within
the existing structure of the requirements would make it easier to
implement new requirements and reduce burden on stakeholders.
Response: We thank the commenters for their input. In response to
comments, we have made some changes to the order and arrangement of the
requirements from the proposed rule, specifically with respect to
proposed Sec. Sec. 483.10, 483.11, and 483.25. In response to the
concerns related to implementation, we again note that we are
implementing the requirements over a phase-in period to allow for
appropriate clarification and education for facilities, surveyors, and
other stakeholders.
Comment: A few commenters were not supportive of the designation of
these requirements of participation as ``requirements,'' rather than
``conditions of participation'' that apply to other Medicare-
participating providers. Specifically, the commenters are concerned
that this terminology effectively makes any violation or unmet
requirement a reason for surveyors to close a facility.
Response: The term ``requirements'' reflects the statutory language
at sections 1819 and 1919 of the Act. Although this rule establishes
requirements for LTC facilities, and not conditions, we note that CMS
and state agencies have always taken into consideration the scope and
severity of violations. Except in very rare cases of serious, immediate
health and safety risks to residents, facilities are always given an
opportunity to address and correct deficiencies. The goal of the
requirements and their enforcement is to ensure the health and safety
of residents, which includes giving facilities the opportunity to
improve and come into compliance with the requirements.
Comment: Some commenters expressed concerns that hands-on care
would take a backseat to paperwork and documentation under the proposed
requirements. Other commenters suggested that we could have gone
further and established a detailed data collection program, which could
be used to better identify achievement and best practices in LTC
settings.
Response: It is not our intention to reduce staff time spent
performing direct patient care; however, facilities must be able to
demonstrate that care and services meet the requirements for
participation. Unfortunately, instances of significant lapses in care
continue to occur in facilities. Our requirements, including QAPI,
Compliance and Ethics, and Infection Control, as well as requirements
for policies and procedures, are intended to protect the health and
safety of residents, prevent harm and support quality of life for
residents. Establishing a detailed data collection program is outside
the scope of this rule.
Comment: Some commenters stated that revisions to the requirements
are meaningless without appropriate enforcement. Commenters asked that,
[[Page 68694]]
prior to implementation of new requirements, CMS ensure all federal and
state surveyors are thoroughly trained about the substance of these new
requirements as well as current professional standards of care for all
professionals working in nursing centers. One commenter further
suggested that surveyors be required to demonstrate competence in all
relevant areas, as shown through testing and monitoring. Alternately,
one commenter offered their support for ``movement from a punitive
survey process to more towards a process which survey agencies and care
givers work hand in hand for positive outcomes. Surveyors have a wealth
of knowledge and exposure to numerous facilities. Passing on best
practices to improve care giving and focusing on training the care
givers would be a[n] improvement.''
Other commenters offered concerns about variability and perceived
inconsistencies between surveys and surveyors. A few commenters urged
CMS to provide defined consequences for noncompliance with the
regulations, particularly those related to residents' rights,
grievances, and abuse and neglect, including finding of Immediate
Jeopardy (as appropriate) and, ultimately, sanctions, including large
civil monetary penalties, temporary management, directed corrective
actions, and exclusion from participation in Federal health care
programs, as appropriate.
Response: We agree that surveyors must be educated and trained on
the new requirements and note that such training happens on a regular
basis, especially when new requirements are issued. We will consider
these comments for future rulemaking. We note that surveyors are not
permitted by law to act simultaneously as consultants. Specifying
precise consequences for facilities out of compliance with specific
requirements is outside the scope of this rulemaking.
Comment: Commenters expressed strong support for stakeholder
involvement in the development of sub-regulatory materials. One
commenter expressed concerns about the approach CMS has been recently
taking utilizing relatively brief conference calls with numerous
callers (too numerous to allow effective discussion) allegedly to
engage stakeholders in development of critical implementation issues.
The commenters felt that this did not constitute sufficient stakeholder
engagement. One commenter observed that upon issuance of a final rule,
CMS will need to develop sub-regulatory requirements, including
interpretive guidelines, to provide much greater detail and guidance on
the regulatory revisions. The commenter recommended that provider
organizations and association representatives be involved in the
development of these specific requirements and guidelines to ensure
they are consistent with sound practice, pragmatic in approach,
sufficiently flexible, cost-effective and representative of the current
realities of providing LTC facility care to an increasingly complex and
diverse resident population.
Response: We thank commenters for their input and will consider
their views for possible later action.
Comment: Several commenters associated with rural LTC facilities
expressed concerns that meeting the proposed requirements would be
difficult in rural areas. They identified staffing as a particular
hardship in rural areas, especially the proposed requirement for
physician evaluation prior to non-emergency hospital transfer. Rural
facilities also stated that it was already difficult to hire and retain
qualified staff in all skilled positions, simply due to rural
population levels. Other commenters pointed to the general labor
shortage in health care across much of the country.
Response: We appreciate the commenters' input and note that we have
revised the proposed requirements to allow for greater flexibility and
in consideration of staffing concerns. Specifically, we are not
finalizing the proposed requirement for pre-transfer evaluation by a
practitioner. That said, these regulations establish what we have
identified as basic staffing needs to ensure appropriate expertise and
quality of care. We sympathize with those facilities that are unable to
access a large labor pool, but we cannot condone substandard care. We
discuss physician services and staffing requirements in greater detail
in the relevant sections of this rule.
Comment: Commenters expressed concern about the overall burden of
the proposed requirements, and many believe that we may have
underestimated the burden on stakeholders. One commenter expressed
concern about the cumulative compliance costs associated with the many
changes proposed in the regulations. They believe that the additional
staffing, credentialing, training, systems and contractual
relationships that will be required for compliance will add to the
financial stresses that LTC facilities are experiencing from ongoing
Medicare and Medicaid cuts. Another commenter protested our issuance of
new, burdensome requirements while at the same time ``cutting fee-for-
service reimbursements'' and implementing value-based purchasing.
Response: We have revised some provisions, such as the requirement
for credentialing, in response to concerns about burden. In addition,
we have our burden estimates in response to comments. Please see
sections V, ``Collection of Information Requirements,'' and VI,
``Regulatory Impact Analysis (RIA),'' of this rule for more details
about regulatory burden estimates.
We acknowledge that the SNF value-based purchasing (VBP) program,
which will take effect in FY 2019, is intended to tie SNF payments more
closely to rewarding positive patient care outcomes. Under section
1888(h)(6) of the Act, the VBP incentive payments to the higher-
performing SNFs are to be funded through a 2 percent reduction in the
overall SNF PPS payment rates (again, effective in FY 2019);
accordingly, under the terms of the VBP legislation, a SNF's successful
performance in meeting the applicable quality measures can help
mitigate the actual impact of the overall payment reduction. These
payment changes were specifically mandated by Congress when it enacted
the SNF VBP legislation in section 215 of the Protecting Access to
Medicare Act of 2014 (PAMA, Pub. L. 113-93). The requirements in this
rulemaking share the VBP program's objective of improving the quality
of care in the LTC setting. We note in addition that SNF PPS payment
rates have increased steadily over recent years, due to market basket
updates.
Comment: Many commenters stated concerns about inadequate Medicaid
reimbursement, while others pointed out that private payer rates are
continually rising to compensate for low Medicare reimbursement.
Commenters worry that the current reimbursement rates are barely
sufficient, in some cases already insufficient, to meet the current
requirements, and that the issue will compound as facilities attempt to
comply with the new requirements. Several commenters stated that
falling Medicare and Medicaid reimbursement rates, relative to costs,
will cause their facilities to close. Many of these commenters
identified themselves as the sole LTC facilities within a geographic
area, which would severely limit the options of their residents if
faced with closure. One commenter suggested that, due to low Medicaid
reimbursement rates, this rulemaking would disproportionately affect
poor individuals who rely on Medicaid and the facilities that serve
them. Another
[[Page 68695]]
commenter stated concerns about reduced amounts of Public Aid funding.
Response: Reimbursement rules are outside the scope of this
rulemaking, and Medicaid reimbursement rates are determined by the
states, with limited involvement by CMS. We do not participate in
disbursement of public aid funding. We encourage commenters to address
Medicaid reimbursement and public aid concerns to relevant state
agencies and departments. Many commenters noted that phased
implementation would be helpful in absorbing new costs. Please see
Section B. ``Implementation'' for our discussion of phased-in
implementation deadlines.
Comment: A number of commenters responded to our request for
comments in ways that suggest misunderstandings of either current
requirements or the proposed requirements. Notable misconceptions
include the:
Belief that allowing residents to choose their attending
physician would be a new requirement.
Impression that having a RN on the interdisciplinary care
team would be a new requirement.
Concerns that these requirements are entirely new, such
that all existing health and safety activities at LTC facilities would
need to be recreated or developed from scratch.
Concerns that new staff would need to be hired to perform
tasks already being handled by existing staff.
Belief that a chaplain would be a mandatory member of the
interdisciplinary care team.
Belief that a complete care plan would have to be
developed within a new resident's first 48 hours at the LTC facility.
Belief that existing facilities would have to limit
occupancy to two residents per room, even if that would reduce bed
count.
Impression that the new requirements are simply a
duplicate of the old requirements.
Uncertainty as to whether the LTC requirements are
applicable to other healthcare settings, such as hospital ``swing-
beds'' or assisted living facilities.
Some commenters also expressed concern that CMS may be unreasonably
focused on regulating LTC facilities, to the point of not updating
regulations and requirements for other provider types. Commenters also
claimed that LTC facilities are ``the most regulated industry in
America,'' and that ``the nuclear industry is less regulated'' than the
LTC facility industry.
Response: We recognize that the proposed rule and this final rule
are large, detailed documents, and that many individuals relied on
summaries to learn about the proposed requirements. We understand that
working professionals and family caregivers can be very busy, but we
are concerned by some of these misinterpretations. Most of the
misconceptions fell into three categories: Unfamiliarity with the old
requirements, misunderstanding of the proposed requirements, or
confusion about which facilities must meet the LTC requirements.
The comments displaying unfamiliarity with the existing
requirements are troubling to us. The right of a LTC resident to choose
his or her own attending physician is a long-standing patient right,
which was established at section 1819(c)(1)(A)(i) of the Act by section
4201 of the Omnibus Budget Reconciliation Act of 1987 and at section
1919(c)(1)(A)(i) by section 4211 of the Omnibus Budget Reconciliation
Act of 1987. We included the right to choose a physician in this
rulemaking in order to support the statutory requirement, and remind
stakeholders that it is not a new requirement and therefore should add
no new regulatory burden. Similarly, the requirement that a RN serve as
a member of an interdisciplinary team is not new to this rulemaking,
but ``carried over'' from the old requirements to the revised
requirements as an important foundational aspect of care planning.
Also, we do not expect facilities to completely recreate health and
safety activities. Existing effective programs may already meet the
substance of the revised requirements completely, in which case no
additional implementation work is necessary. We address these comments,
and others, in greater detail in the relevant sections of this
preamble.
For those misunderstood provisions of the proposed rule, we have
attempted to clarify the relevant sections of the rule, and note that
we did not propose that chaplains must be members of all
interdisciplinary teams, only that their inclusion is permitted as
deemed appropriate by facilities or residents. Similarly, we did not
propose that a full plan of care be developed within a resident's first
48 hours, only that a baseline plan be established. The ``two persons
per room'' requirement applies only to those facilities that receive
approval to be constructed or reconstructed, or are newly certified
after this rulemaking. Existing facilities with larger rooms are
effectively grandfathered into compliance.
For those health care providers who are not sure whether these
requirements apply to them, we encourage them to work with their
facility's administration and governing body to determine
applicability. This rulemaking applies to Medicare- and Medicaid-
certified long term care facilities as defined at sections 1819 and
1919 of the Act and all facilities receiving payment under such
programs. Swing-bed hospital units, for example, would need to meet
specific conditions of participation for such units, as set out at 42
CFR 482.58, and which include a subset of the requirements contained 42
CFR 483. We note that CMS does not issue regulations or guidance for
assisted living facilities, nor are they eligible for Medicare
reimbursement. While some assisted living facilities do provide health
services (such as medication supervision, nurse support, and emergency
medical assistance for residents), they are not classified as health
care providers or suppliers under the Act. Some states do regulate
them, often as social service providers rather than health care
providers. The requirements in this rulemaking may be helpful to other
health care and social service settings, but only LTC facilities are
required to meet them.
Comment: One commenter expressed concern about our use of the term
``state plan'' throughout the rule. The commenter felt that this is not
meant to exclude those states where all Medicaid services in long term
care are covered by a Section 1115 waiver and recommended we add the
phrase ``or waiver'' where appropriate.
Response: We thank the commenter for their suggestion, but do not
believe it is necessary to add ``or waiver.'' The commenter is correct
that the use of the term ``state plan'' does not exclude those states
where Medicaid-covered services in long term care facilities are
provided pursuant to a CMS-approved demonstration project (often
referred to as ``waivers''). Our use of the term ``state plan''
encompasses the plan and any such demonstrations.
B. Implementation Date
Comment: We received a substantial number of comments requesting
that we consider delaying the implementation of the proposed
requirements. Several commenters noted that the proposed rule was
complex and that the comprehensive update of the regulations will be
overwhelming for facilities to comply with. However, a few commenters
noted that many of the proposed requirements will simply require
adjustments in the current process. One commenter specifically noted
that facilities should be well on their way with establishing a QAPI
program and complying with the
[[Page 68696]]
proposed QAPI requirements. Many commenters also indicated concern
regarding the financial burden associated with this regulation and
suggested that a delayed implementation would allow facilities the time
needed to establish compliance with the new requirements.
Commenters provided varying suggestions for a implementation
timeframe. Some commenters provided suggestions specific to certain
requirements. For example, one commenter recommended a 12- to 18-month
implementation timeframe for pharmacy services-related requirements.
Other commenters recommended that the entire regulation be implemented
by phasing in requirements over a certain time period. In addition,
commenters provided varying suggestions for an implementation date of
the entire regulation that ranged from 1 to 10 years in the future.
Response: We appreciate the feedback from commenters. Given the
comprehensive nature of the regulatory revisions, we agree that a
longer period of time is necessary to implement the changes outlined in
this final rule. We acknowledge that LTC facilities may find the
comprehensive revision to the LTC requirements overwhelming and want to
avoid any unintended consequences or unanticipated risks to both
facilities and residents. We believe that allowing for a longer
implementation period will allow LTC facilities the time necessary to
come into compliance with the new requirements. In addition, we
anticipate that additional time will be needed to develop revised
interpretive guidance and survey processes, conduct surveyor training
on the changes, and implement the software changes in the Quality
Indicator Survey (QIS) system.
While commenters provided varying suggestions for the appropriate
implementation timeframe (ranging between 1 and 10 years), overall all
commenters agreed that implementation will require more than a year and
the majority of commenters suggested between 3 and 5 years. After
considering these proposals, we are finalizing a phased-in
implementation of the requirements over a 3 year time period. We
believe that a phased-in approach over 3 years will sufficiently allow
for LTC facilities to achieve compliance with the revised regulations
without jeopardizing resident care. We note that these final
regulations will be effective 60 days following the display of this
final rule in the Federal Register, as discussed under the ``Effective
Date'' section. Over the 3 year time period following the effective
date of the final rule the requirements will be implemented in three
phases. We have categorized the three phases based on the complexity of
the revisions and the work necessary to revise the interpretive
guidance and survey process based on the revisions. The first phase of
implementation will occur upon the effective date of the final rule and
include those requirements that were unchanged or received minor
modification. We will provide updated training to surveyors on the new
regulatory language.
The second phase of implementation will have a deadline of 1 year
following the effective date of the final rule and in addition to those
requirements implemented in phase one, this phase will also include
those brand new requirements and those provisions that required more
complex revisions. The additional time for implementation will allow
for complete changes in our survey processes as well as updates to the
survey guidance. We will provide updated guidance to facilities, update
the traditional and QIS survey process, update the survey tags in
accordance with the reorganization of the regulations, and provide
training to surveyors on the new tags. The third and final phase of
implementation will have a deadline of 3 years from the effective date
of the final rule and include all the remaining requirements that were
not implemented in phases 1 and 2. We expect that this final phase will
allow for the complete set of revised requirements to be incorporated
into the practices of LTC facilities and sufficiently enforced through
the updated survey process.
Below we provide a detailed chart specifying the specific
requirements that will be implemented in phases 1, 2, and 3 of the
implementation time period for this final rule. We note that some
regulatory sections may have certain requirements that are implemented
in varying phases. In those instances we highlight the specific
requirements in a regulatory section that will be implemented in a
different phase.
Implementation Timeframes
**Note: These final regulations will be effective 60 days following
the date of public inspection of this final rule in the Federal
Register. **
Phase 1: Upon the effective date of the final rule.
Phase 2: 1 year following the effective date of the final rule.
Phase 3: 3 years following the effective date of the final rule.
------------------------------------------------------------------------
Regulatory section Implementation deadline
------------------------------------------------------------------------
Sec. 483.1 Basis and scope........... This entire section will be
implemented in Phase 1.
Sec. 483.5 Definitions............... This entire section will be
implemented in Phase 1.
Sec. 483.10 Resident rights.......... The section will be implemented
in Phase 1 with the following
exception:
(g)(4)(ii)-(v)
Providing contact information
for State and local advocacy
organizations, Medicare and
Medicaid eligibility
information, Aging and
Disability Resources Center
and Medicaid Fraud Control
Unit--Implemented in Phase 2.
Sec. 483.12 Freedom from abuse, This section will be
neglect, and exploitation. implemented in Phase 1 with
the following exceptions:
(b)(4) Coordination
with QAPI Plan--Implemented in
Phase 3.
(b)(5) Reporting
crimes/1150B--Implemented in
Phase 2.
Sec. 483.15 Admission, transfer, and This section will be
discharge rights. implemented in Phase 1 with
the following exceptions:
(c)(2) Transfer/
Discharge Documentation--
Implemented in Phase 2.
Sec. 483.20 Resident assessment...... This entire section will be
implemented in Phase 1.
Sec. 483.21 Comprehensive person- This section will be
centered care planning. implemented in Phase 1 with
the following exceptions:
(a) Baseline care
plan--Implemented in Phase 2.
(b)(3)(iii) Trauma
informed care--Implemented in
Phase 3.
Sec. 483.24 Quality of life.......... This entire section will be
implemented in Phase 1.
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Sec. 483.25 Quality of care.......... This section will be
implemented in Phase 1 with
the following exception:
(m) Trauma-informed
care--Implemented in Phase 3.
Sec. 483.30 Physician services....... This entire section will be
implemented in Phase 1.
Sec. 483.35 Nursing services......... This section will be
implemented in Phase 1 with
the following exception:
Specific usage of the
Facility Assessment at Sec.
483.70(e) in the determination
of sufficient number and
competencies for staff--
Implemented in Phase 2.
Sec. 483.40 Behavioral health This section will be
services. implemented in Phase 2 with
the following exceptions:
(a)(1) As related to
residents with a history of
trauma and/or post-traumatic
stress disorder--Implemented
in Phase 3.
(b)(1), (b)(2), and
(d) Comprehensive assessment
and medically related social
services--Implemented in Phase
1.
Sec. 483.45 Pharmacy services........ This section will be
implemented in Phase 1 with
the following exceptions:
(c)(2) Medical chart
review--Implemented in Phase
2.
(e) Psychotropic
drugs--Implemented in Phase 2.
Sec. 483.50 Laboratory, radiology, This entire section will be
and other diagnostic services. implemented in Phase 1.
Sec. 483.55 Dental services.......... This section will be
implemented in Phase 1 with
the following exceptions:
(a)(3) and (a)(5) Loss
or damage of dentures and
policy for referral--
Implemented in Phase 2.
(b)(3) and (b)(4)
Referral for dental services
regarding loss or damaged
dentures--Implemented in Phase
2.
Sec. 483.60 Food and nutrition This section will be
services. implemented in Phase 1 with
the following exceptions:
(a) As linked to
Facility Assessment at Sec.
483.70(e)--Implemented in
Phase 2.
(a)(1)(iv) Dietitians
hired or contracted with prior
to effective date--Built in
implementation date of 5 years
following effective date of
the final rule.
(a)(2)(i) Director of
food & nutrition services
designated to serve prior to
effective--Built in
implementation date of 5 years
following the effective date
of the final rule.
(a)(2)(i) Dietitians
designated to after the
effective date--Built in
implementation date of 1 year
following the effective date
of the final rule.
Sec. 483.65 Specialized This entire section will be
rehabilitative services. implemented in Phase 1.
Sec. 483.70 Administration........... This section will be
implemented in Phase 1 with
the following exceptions:
(d)(3) Governing body
responsibility of QAPI
program--Implemented in Phase
3.
(e) Facility
assessment--Implemented in
Phase 2.
Sec. 483.75 Quality assurance and This section will be
performance improvement. implemented in Phase 3 with
the following exceptions:
(a)(2) Initial QAPI
Plan must be provided to State
Agency Surveyor at annual
survey--Implemented in Phase
2.
(g)(1) QAA committee--
All requirements of this
section will be implemented in
Phase 1 with the exception of
subparagraph (iv), the
addition of the ICPO, which
will be implemented in Phase
3.
(h) Disclosure of
information--Implemented in
Phase 1.
(i) Sanctions--
Implemented in Phase 1.
Sec. 483.80 Infection control........ This section will be
implemented in Phase 1 with
the following exceptions:
(a) As linked to
Facility Assessment at Sec.
483.70(e)--Implemented in
Phase 2.
(a)(3) Antibiotic
stewardship--Implemented in
Phase 2.
(b) Infection
preventionist (IP)--
Implemented in Phase 3.
(c) IP participation
on QAA committee--Implemented
in Phase 3.
Sec. 483.85 Compliance and ethics This entire section will be
program. implemented in Phase 3.
Sec. 483.90 Physical environment..... This section will be
implemented in Phase 1 with
the following exceptions:
(f)(1) Call system
from each resident's bedside--
Implemented in Phase 3.
(h)(5) Policies
regarding smoking--Implemented
in Phase 2.
[[Page 68698]]
Sec. 483.95 Training requirements.... This entire section will be
implemented in Phase 3 with
the following exceptions:
(c) Abuse, neglect,
and exploitation training--
Implemented in Phase 1.
(g)(1) Regarding in-
service training, (g)(2)
dementia management & abuse
prevention training, (g)(4)
care of the cognitively
impaired--Implemented in Phase
1.
(h) Training of
feeding assistants--
Implemented in Phase 1.
------------------------------------------------------------------------
C. Basis and Scope (Sec. 483.1)
We proposed to revise Sec. 483.1 ``Basis and Scope'' to include
references to sections 1819(f), 1919(f), 1128I(b) and (c), and 1150B of
the Act. Sections 1819(f) and 1919(f) of the Act require that the
current mandatory on-going training for NAs include dementia management
and resident abuse prevention training. New section 1128I(b) of the Act
requires the operating organizations for SNFs and NFs to have a
compliance and ethics program and new section 1128I(c) of the Act
requires the Secretary to establish and implement a QAPI program for
facilities. New section 1150B of the Act establishes requirements for
reporting to law enforcement suspicion of crimes occurring in federally
funded LTC facilities. In addition, we proposed to spell out the term
``skilled nursing facility''.
We did not receive any comments in response to our proposals in
this section. Therefore, we are finalizing our proposal without
modification.
D. Definitions (Sec. 483.5)
Current regulations at Sec. 483.5 provide definitions for terms
commonly used in the LTC requirements. We proposed to revise some of
the existing terms for clarity and define new terms that we believe are
widely used within the LTC setting, and that we believe will add value
to the LTC requirements while promoting resident choice and safety.
We retained the existing definitions for ``facility'' and
``distinct part''. In addition, we retained the definition of ``major
modification'', which was added to the LTC regulations in the May 12,
2014 final rule, ``Regulatory Provisions to Promote Program Efficiency,
Transparency, and Burden Reduction; Part II'' (79 FR 27106). We also
proposed minor revisions to the definition of ``common area'' to
recognize that some facilities have living rooms or other areas where
residents gather. We proposed to expand this section to include the
following definitions: ``abuse,'' ``adverse event,'' ``exploitation,''
``misappropriation of resident property,'' ``neglect,'' ``person-
centered care,'' ``resident representative,'' and ``sexual abuse''. In
addition, we proposed to relocate the definitions for ``licensed health
professional'' and ``nurse aide'' to this section from the
``Administration'' section at Sec. 483.75(e)(1). In addition, we
proposed to revise the definition of ``nurse aide'' in accordance with
amendments to sections 1819(b)(5)(F) and 1919(b)(5)(F) of the Act made
by sections 6121(a)(2) and (b)(2) of the Affordable Care Act. ``Nurse
aide'' is currently defined as any individual providing nursing or
nursing-related services to residents in a facility who is not a
licensed health professional, a registered dietitian, or someone who
volunteers to provide these services without pay. ``Nurse aides'' do
not include those individuals who furnish services to residents only as
paid feeding assistants, as defined in Sec. 488.301. Section 6121 of
the Affordable Care Act added the following clarification to the
definition of ``nurse aide'': ``Such term includes an individual who
provides such services through an agency or under a contract with the
facility.'' We proposed to amend the regulatory definition accordingly.
We proposed to add the term ``adverse event'' to ensure clarity in our
requirements relating to proposed requirements for QAPI. For purposes
of this regulation, we also proposed to define the term ``resident
representative'' broadly to include both an individual of the
resident's choice who has access to information and participates in
healthcare discussions as well as personal representative with legal
standing, such as a power of attorney for healthcare, legal guardian,
or health care surrogate or proxy appointed in accordance with state
law to act in whole or in part on the resident's behalf. We also noted
that the same-sex spouse of a resident would 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. In addition, we
proposed to add a definition of ``person-centered care'' to be defined
as focusing on the resident as the locus of control and supporting the
resident in making their own choices and having control over their
daily lives. For purposes of these regulations, we proposed that
``abuse'' would include actions such as the willful infliction of
injury, unreasonable confinement, intimidation, or punishment with
resulting physical harm, pain or mental anguish. As used in this
definition of ``abuse'', ``willful'' means the individual must have
acted deliberately, not that the individual must have intended to
inflict injury or harm. We proposed that ``abuse'' would also include
the deprivation by an individual of goods or services that are
necessary to attain or maintain physical, mental, and psychosocial
well-being. The term ``sexual abuse'' would extend the meaning of
``abuse'' to include non-consensual sexual contact of any type with a
resident. We proposed to define the term ``neglect'' as ``the failure
of the facility, its employees or service providers to provide goods
and services to a resident that are necessary to avoid physical harm,
pain, mental anguish or mental illness.'' We proposed to define
``exploitation'' as ``the unfair treatment or use of a resident or the
taking of a selfish or unfair advantage of a resident for personal
gain, through manipulation, intimidation, threats, or coercion.''
We also proposed to add the term ``misappropriation of resident
property'' and define the term as ``the deliberate misplacement,
exploitation, or wrongful, temporary, or permanent use of a resident's
belongings or money without the resident's consent.''
Finally, we proposed to move the existing definition of ``transfer
and discharge'' from Sec. 483.12(a)(1) to Sec. 483.5.
Comment: Several commenters supported the addition of terms to the
definitions section and indicated that making the link between terms
that are defined in regulation and guidance will support an increased
response to elder abuse. Multiple commenters provided suggestions for
additional terms to be included in the definitions sections. One
commenter indicated that there is a need to define ``behavioral
health'' given the addition of the regulatory section focused on
behavioral health. Other commenters also suggested that
[[Page 68699]]
the definition of ``mistreatment'' be added to the regulations for
clarity. Lastly, one commenter suggested that definitions of ``portable
order for scope of treatment'' and ``staffing practices'' be added to
the regulations.
Response: We agree with commenters and believe that improving the
definitions section will promote resident safety and choice. For
further clarity we have added discussion to the behavioral health
section explaining what behavioral health is. Since behavioral health
is largely discussed in the ``Behavioral Health'' section we believe it
is more appropriate to add the discussion at Sec. 483.40 rather than
in the ``Definitions'' section at Sec. 483.5.
We agree with commenters who suggested that the term
``mistreatment'' be defined in the regulation. Regulations at proposed
Sec. 483.12(a)(2)(iii) specify that facilities cannot employ or
otherwise engage individuals who have had a disciplinary action taken
against their professional license as a result of mistreatment.
Therefore, based on public comments and the use of the term
``mistreatment'' in Sec. 483.12, we are revising the definitions
section to add the term; ``mistreatment'' which means ``to
inappropriately treat or exploit a resident.'' Lastly, we do not agree
that the terms ``staffing practices'' and ``portable order for scope of
treatment'' should be defined because these terms are not used in the
regulations.
Comment: One commenter supported moving the definition of
``transfer and discharge'' to the ``Definitions'' section, but
recommended that the definition also be discussed in the ``Transitions
of Care'' section (finalized as ``Admission, Transfer, and Discharge
Rights'') so that readers are aware of it. The commenter also
recommended that the definition of ``transfer and discharge'' be
revised to include language from interpretive guidance in order to help
address the failure of LTC facilities to recognize adequately a
resident's transfer and discharge rights.
Response: We agree with commenters and have added a cross-reference
to the definition of ``transfer and discharge'' at Sec. 483.15(b)(1),
which discusses the requirements regarding a resident's transfer and
discharge rights. We note that the definition of ``transfer and
discharge'' aligns with the definition that is in the state operations
manual. We are unclear what information the commenter requests to have
added into the definition.
Comment: Overall, commenters agreed that abuse should be defined in
the regulations. Commenters provided varying suggestions aimed to
improve the proposed definition. Some commenters communicated support
for including the word ``willful'' in the definition of abuse. However,
commenters articulated that as proposed, the definition of ``willful''
(as used in abuse) could potentially create major and unreasonable
legal complications for facilities and practitioners who are forced to
make difficult decisions in unclear circumstances. For example,
commenters indicated that unintentional errors, such as deliberately
providing medications to a resident that are later discovered to be
harmful or differences of clinical opinions, such as withdrawing life-
sustaining treatment, will be inappropriately categorized as abuse.
In addition, commenters suggested deleting the clause regarding the
deprivation of goods and services from the definition of ``abuse''.
Commenters indicated that the use of this clause is problematic and is
more appropriately covered by the definition of ``neglect.'' One
commenter further suggested that the sentence, ``This presumes that
instances of abuse of all residents, irrespective of any mental or
physical condition, cause physical harm, pain or mental anguish'', also
be removed from the definition of abuse. The commenter communicated
that definitions should not include presumptions and the phrase
``instances of abuse of all residents'' is unclear. Another commenter
recommended that the definition clarify further that abuse facilitated
or enabled through the use of technology refers to platforms such as
social media.
Response: We appreciate the feedback from commenters regarding the
definition of ``abuse''. We disagree with commenters and do not believe
that the definition of ``abuse'' repeats the definition of ``neglect''.
With regard to a deprivation of goods or services, we believe that
``abuse'' requires a willful act, while ``neglect'' does not. We agree
with commenters that definitions should not contain presumptions and
therefore have revised the language ``this presumes'' to make an
explicit statement that instances of abuse of all residents,
irrespective of any mental or physical condition, cause physical harm,
pain or mental anguish.'' We do not believe that the use of the term
``willful'' should be removed from the definition of ``abuse.'' We
encourage readers to refer to Merrimack County Nursing Home, DAB CR2352
(December 5, 2011) (ALJ Decision) and Honey Grove Nursing Center, DAB
CR3039 (May 8, 2014) (ALJ Decision), which discusses actions that were
deliberate, not inadvertent or accidental or with the intent to inflict
injury or harm. We agree that abuse enabled through the use of
technology would include the use of social media, as well as the use of
cameras or the Internet. Following the publication of the final rule,
we will release updated interpretive guidance that will aid facilities
in implementing these regulations and provide further clarification for
this regulation. The interpretive guidance is the most appropriate
place to further clarify and provide examples regarding abuse that is
facilitated through the use of technology.
Comment: One commenter indicated that an ``adverse event'' is
adverse whether or not it is anticipated and suggested that the concept
of anticipation be removed from the proposed definition, as it may be
misleading. Another commenter recommended that the definition of
``adverse event'' be expanded to include events noted in the February
2014 OIG report entitled, ``Adverse Events in Skilled Nursing
Facilities: National Incidence Among Medicare Beneficiaries'' (OEI-06-
11-00370), such as preventable harm due to substandard treatment,
inadequate resident monitoring, and failure or delay of necessary care.
The commenter indicates that the focus of the definition should be
placed on a facility's systematic analysis and action rather than only
on one-time events.
Response: We appreciate the commenters' feedback. When considering
the proposed definition of ``adverse events'' we reviewed the February
2014 Office of the Inspector General (OIG) report referenced by
commenters. We believe that increasing the level of specificity in the
definition could potentially preclude recognition of additional adverse
events. As proposed, the definition encompasses events that harm the
patient, that are a result of substandard treatment, inadequate
resident monitoring, and failure or delay of necessary care. In
addition, we proposed the definition of ``adverse event'' that is
currently defined in regulations for transplant centers. As written,
the definition does not exclude anticipated events, but rather states
``adverse events'' are ``usually unanticipated.''
Comment: Several commenters supported the clarification added to
the definition of ``composite distinct part'' which prohibits the use
of a composite distinct part designation as a means to segregate
residents by payment status or on any other basis other than care
needs.
Response: We appreciate the support from commenters and believe
that the
[[Page 68700]]
clarification will help to avoid creating inequitable care situations.
Comment: Many commenters supported our proposal to add a definition
of ``exploitation'' to the regulations. A few commenters provided
suggestions to improve the proposed definition. One commenter indicated
that the use of the term ``selfish'' in the definition of
``exploitation'' is misplaced and unnecessary. Another commenter
disagreed with the use of the term ``manipulation'' in the definition
because manipulation is difficult to identify and pinpoint. The
commenter indicated that the definition of ``exploitation'' should not
create unanticipated consequences and recommended substituting the use
of the term ``manipulation'' with ``deception''.
Response: We appreciate the commenters' feedback and believe that
further revisions are needed to improve clarity. We agree that the term
``selfish'' may possibly be hard to identify and evaluate. However, we
prefer to use the term ``manipulation'' rather than ``deception,'' as
recommended by commenters. We believe that the term ``manipulation'' is
generally understood and appropriately indicates when power is being
used in an unacceptable manner. Overall, in response to comments we
have revised the definition of ``exploitation'' to ``taking advantage
of a resident for personal gain by using manipulation, intimidation,
threats, or coercion.''
Comment: A few commenters suggested that the definition of
``licensed health professional'' be expanded to include pharmacists,
respiratory therapists, dietitians, and psychologists.
Response: The statute at section 1819(b)(5)(G) of the Act defines
``licensed health professional'' as ``a physician; physician assistant;
nurse practitioner; physical, speech, or occupational therapist;
physical or occupational therapy assistant; registered professional
nurse; licensed practical nurse; or licensed or certified social
worker; registered respiratory therapist or certified respiratory
therapy technician.'' Therefore, in an effort to conform our definition
to the statute, we have added respiratory therapists to the regulatory
definition of ``licensed health professional.'' We have not added
``pharmacists, dietitians, and psychologists,'' since they are not
included in the statutory definition.
Comment: Several commenters supported including the definition of
``misappropriation of property'' in the ``Definitions'' section. One
commenter recommended replacing the term ``deliberate'' with
``willful'' for consistency throughout the definitions, since
``willful'' is used in the definition of ``abuse''. Another commenter
requested that the definition of ``misappropriation of property'' be
revised to add language to ensure that the facility remains responsible
for replacing or reimbursing for items that are lost or stolen.
Response: We appreciate the commenters' feedback, but disagree with
the suggestions. The term ``willful'' is defined specifically, since it
is an element of the definition of ``abuse.'' We believe that the term
``deliberate'' is correctly used in the definition of
``misappropriation of property''. In addition, it is not appropriate to
add language regarding facility responsibilities to the definition of
``misappropriation of property''. The definition was added to clarify
what constitutes as the misappropriation of a resident's property.
Regulations at Sec. 483.12(c) discuss the requirements that must be
met in response to allegations of the misappropriation of resident
property. While our regulations do not require replacement or
reimbursement, facilities have the flexibility to establish their own
policies related to internal remedies for replacement or reimbursement
of resident property.
Comment: Multiple commenters supported the addition of the
definition of ``neglect''. One commenter indicated that mental disorder
is not a condition that can be attributed to neglect. The commenter
recommended modifying the definition of ``neglect'' to explicitly state
that neglect could lead to increased psychiatric or behavioral
symptoms. Another commenter recommended the definition of ``neglect''
be revised to remove the statement that an individual suspected of
neglect must have acted willfully.
Response: We agree that the wording in the definition of
``neglect'' can be improved and have revised the definition to clarify
that the facility and its employees are neglectful when a reasonable
person would conclude that a deprivation of the omitted goods and
services would cause, among other things, emotional distress (rather
than mental disorder). As proposed, the definition of ``neglect'' does
not include the term ``willful''. We have revised the definition of
``neglect'' to read, ``the failure of the facility, its employees or
service providers to provide goods and services to a resident that are
necessary to avoid physical harm, pain, mental anguish or emotional
distress.''
Comment: One commenter indicated that ``nursing aide'' is an
obsolete term and the correct terminology is ``nursing assistant''.
Response: We appreciate the commenter's feedback, however we are
maintaining the use of the term ``nursing aide'' since that is the term
used in the statute.
Comment: Several commenters supported promoting individual choices
and individualized care and agreed that adding a definition of
``person-centered care'' is necessary. Commenters suggested additional
terms to replace ``person-centered care''. A few commenters provided
suggestions to improve the definition. One commenter indicated that the
proposed definition only addresses resident choice and is too narrow.
The commenter notes that the concept of ``focusing on the resident as
the locus of control'' is vague and unsurveyable. Furthermore the
commenter suggests that the definition should specify the actions that
facilitate individualized care and not just focus on the resident as
the locus of control.
Another commenter recommended that the definition of ``person-
centered care'' be modified to include that the relationship between
residents and providers is a collaborative partnership.
Response: The term ``person-centered care'' is recognized in the
long-term care community. However, we understand that some facilities
and health care professionals may use alternative terms and wording to
describe a similar care model. We have used the term ``person-centered
care'', but facilities have the flexibility to use any term they choose
internally as long as the principles described in the regulation are
met. Facilities should implement the principle of ``person-centered
care'' by developing internal guidelines that promote resident choice
and control over their individual care. The definition of ``person-
centered care'' has been added to the regulation to assist in meeting
these requirements and to provide some guidance regarding our intent
and expectations. We note that the interpretive guidance for this
regulation will also provide more detailed information and best
practices for implementing person-centered care.
Comment: Many commenters believe that as proposed the definition of
``resident representative'' may create potential problems and supersede
state law, regulations, or case law regarding a resident's surrogate
decision makers. The commenters indicated that allowing for both a
representative of the resident's choice as well as a representative
with legal standing might create issues in instances where these
[[Page 68701]]
two individuals disagree. They note that the regulation is not clear as
to who supersedes and these types of decisions should not be made by
the facility.
Other commenters recommended that the definition of ``resident
representative'' be revised to appropriately capture the many
relationships that individuals may have with the resident. Commenters
indicated that the definition should clearly identify the rights that
such individuals have acting on behalf of or advocating with the
resident. Commenters also noted that it is important to clarify that
residents are not obligated to choose or designate anyone as a
representative. Commenters recommended the use of terms, such as
``resident enabler'' and ``resident supporter'' to more appropriately
incorporate the concept of supported decision-making. One commenter
recommended that our definition be revised to align with the definition
in the State Long-Term Care Ombudsman Program regulations found at 45
CFR 1327.1 (recently relocated to 45 CFR 1324.1; see the final rule,
``Administration for Community Living Regulatory Consolidation'' (81 FR
35644, June 3, 2016).
One commenter affirmed the need to highlight the equal treatment of
same-sex spouses, while another commenter suggested that the discussion
regarding the selection of a same-sex spouse as a representative be
removed from the definition. The commenter notes that same-sex spouses
are now covered under state law and it is unnecessary to specify one
particular group in this definition while omitting others.
Response: We appreciate the feedback from commenters and agree that
the definition of ``resident representative'' can be improved. Our
intent behind proposing the definition of ``resident representative''
was to recognize that a resident has the right to designate an
individual or individuals who can support them in their decision-
making. We did not intend to expand the scope of authority of any
representative or to supersede state law, regulations, or case law
regarding a resident's surrogate decision makers. As one commenter
noted, a definition of ``resident representative'' can be found in
existing HHS regulations. The regulations at 45 CFR 1324.1 define a
``resident representative'' as ``(1) An individual chosen by the
resident to act on behalf of the resident in order to support the
resident in decision-making; access medical, social or other personal
information of the resident; manage financial matters; or receive
notifications; (2) A person authorized by state or federal law
(including but not limited to agents under power of attorney,
representative payees, and other fiduciaries) to act on behalf of the
resident in order to support the resident in decision-making; access
medical, social or other personal information of the resident; manage
financial matters; or receive notifications ; (3) Legal Representative,
as used in 712 of the Older Americans Act; or (4) The court-appointed
guardian or conservator of a resident. (5) Nothing in this rule is
intended to expand the scope of authority of any resident
representative beyond that authority specifically authorized by the
resident, State or Federal law, or a court of competent jurisdiction.''
We believe that this definition matches our intent behind defining
``resident representative'' in the LTC regulations and to align with
existing HHS regulation, we are revising the definition of ``resident
representative'' to match the definition found at 45 CFR 1324.1.
Generally speaking, the authority of an individual vested with
decision-making power under state law would exceed that of an
individual without formal legal recognition.
Comment: One commenter recommended that the definition of ``sexual
abuse'' be modified in an effort to avoid categorizing accidental
touching, which may occur while moving or cleaning a resident, as
abuse. Another commenter recommended that the definition of ``sexual
abuse'' be modified to include the use of technology to sexually abuse
a resident.
Response: We understand that accidental touching is possible;
however the term ``sexual abuse'' has been added to the regulations in
an effort to prevent harmful acts. It was not added to prevent or
complicate care, but to ensure that residents are protected especially
in vulnerable situations. For acts such as bathing a resident or
assisting a resident with using the restroom, it is the facility's
responsibility to have procedures and guidelines in place for what is
acceptable and appropriate for providing assistance. We believe that
the use of technology to harm a resident is covered by the definition
of ``abuse'' which speaks specifically to abusive situations
facilitated through technology.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications.
We have--
Revised the definition of ``abuse'' to read, ``the willful
infliction of injury, unreasonable confinement, intimidation, or
punishment with resulting physical harm, pain or mental anguish. Abuse
also includes the deprivation by an individual, including a caretaker,
of goods or services that are necessary to attain or maintain physical,
mental, and psychosocial well-being. Instances of abuse of all
residents, irrespective of any mental or physical condition, cause
physical harm, pain or mental anguish. It includes verbal abuse, sexual
abuse, physical abuse, and mental abuse including abuse facilitated or
enabled through the use of technology. Willful, as used in this
definition of abuse, means that the individual must have acted
deliberately, not that the individual must have intended to inflict
injury or harm.''
Revised the definition of ``exploitation'' to read,
``taking advantage of a resident for personal gain through the use of
manipulation, intimidation, threats, or coercion.''
Revised the definition of ``licensed health professional''
by adding ``registered respiratory therapist or certified respiratory
therapy technician.''
Added a definition of ``mistreatment'' and defined it as
``inappropriate treatment or exploitation of a resident.''
Revised the definition of ``neglect'' to read, ``the
failure of the facility, its employees or service providers to provide
goods and services to a resident that are necessary to avoid physical
harm, pain, mental anguish or emotional distress.''
Revised the definition of ``resident representative'' to
read (in accordance with 45 CFR 1324.1), ``(1) An individual chosen by
the resident to act on behalf of the resident in order to support the
resident in decision-making; access medical, social or other personal
information of the resident; manage financial matters; or receive
notifications; (2) A person authorized by State or Federal law
(including but not limited to agents under power of attorney,
representative payees, and other fiduciaries) to act on behalf of the
resident in order to support the resident in decision-making; access
medical, social or other personal information of the resident; manage
financial matters; or receive notifications; (3) Legal representative,
as used in section 712 of the Older Americans Act; or (4) The court-
appointed guardian or conservator of a resident. (5) Nothing in this
rule is intended to expand the scope of authority of any resident
representative beyond that authority specifically authorized by the
resident, State or Federal law, or a court of competent jurisdiction.''
[[Page 68702]]
E. Resident Rights (Sec. 483.10)
Current regulations at Sec. 483.10 address a number of resident
rights and facility requirements, including those establishing a
resident's right to exercise his or her rights, including rights
associated with a dignified existence, self-determination, planning and
implementing care, access to information, privacy and confidentiality.
Resident rights are also addressed in existing Sec. 483.15. Based on a
review of these regulations, we proposed to retain all existing
residents' rights, but update the language and organization of the
resident rights provisions to improve logical order and readability, to
clarify aspects of the regulation that warranted it, and to update
provisions to include technological advances such as electronic
communications. In order to achieve these objectives, we proposed to
revise existing Sec. 483.10 to include only those provisions
specifying resident rights, including a number of provisions that are
currently included in Sec. 483.15. We further proposed to add a new
Sec. 483.11, to focus on the responsibilities of the facility,
including relevant provisions currently included in Sec. 483.10 and
Sec. 483.15. As with Sec. 483.10, we proposed multiple re-
designations and revisions to improve logical order and readability,
clarify aspects of the regulation that warranted it, and reflect
technological advances such as electronic communications. Under our
proposal, some existing provisions would have components in both Sec.
483.10 and Sec. 483.11. We discuss below our proposed revisions to
those provisions retained in or moved to Sec. 483.10 and note that
regulatory citations have been updated throughout to reflect the
proposed new structure.
We proposed to revise Sec. 483.10 to focus specifically on
resident rights. In proposed Sec. 483.10(a)(2), we clarified the
resident's right to be supported in his or her exercise of rights under
this subpart. In proposed Sec. 483.10(a)(3), we clarified the
resident's right to designate a representative to exercise only those
rights delegated by the resident, and the resident's retention of
rights not delegated, including the right to revoke a delegation.
In Sec. 483.10(a)(4) we proposed to clarify that a resident who
was adjudged incompetent under the laws of a state would retain the
right to exercise those rights not addressed by a court order, that the
resident representative can only exercise the rights that devolve to
them as a result of the court order, that the resident's wishes and
preferences should continue to be considered, and that the resident
should continue to be involved in the care planning process to the
extent practicable, as the resident is at the center of the care team.
Lastly, in our December 12, 2014 proposed rule ``Medicare and Medicaid
Programs; Revisions to Certain Patient's Rights Conditions of
Participation and Conditions for Coverage'' (79 FR 73873), we proposed
at Sec. 483.10(a)(4) to require that the same-sex spouse of a resident
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. We proposed to re-designate this requirement from Sec.
483.10(a)(4) (as set out in the December 2014 proposed rule at 79 FR
73811) to Sec. 483.10(a)(5).
In proposed Sec. 483.10(b), we included resident rights related to
planning and implementing care. We proposed to re-designate and revise
current Sec. 483.10(b)(3), Sec. 483.10(b)(4) and Sec. 483.10(b)(8),
relating to the resident's right to be informed of his or her total
health status, including medical conditions; the right to be informed
in advance of the risks and benefits of proposed care, including
treatment and treatment alternatives or treatment options so that the
resident can choose the alternative or option he or she prefers; the
right to request, refuse and/or discontinue treatment, including
participating in or refusing to participate in experimental research;
and the right to formulate advance directives. We proposed to add new
requirements in Sec. 483.10(b)(5) to specify that the resident has the
right to participate in the care planning process, including the right
to identify individuals or roles to be included in the planning
process, the right to request meetings and the right to request
revisions to the person-centered plan of care. We further specified in
Sec. 483.10(b)(5)(iv) that the resident has the right to receive the
services and items included in the plan of care. We also proposed to
re-designate and revise existing Sec. 483.10(d)(2) to specify that the
resident has the right, in advance, to be informed of and to
participate in, his or her care and treatment, including the right to
be informed, in advance, of the care to be furnished and the
disciplines that will furnish care. In addition, we proposed to specify
the resident's right to participate in the development of his or her
comprehensive care plan. We also proposed at Sec. 483.10(b)(6) to
include the resident's right to self-administer medication if the
interdisciplinary team has determined that doing so would be clinically
appropriate. Finally, we proposed to add a new section at Sec.
483.10(b)(7) to specify that these rights cannot be construed as a
right to receive medical care that is not medically necessary or
appropriate.
We proposed to require that the facility ensure that the attending
physician is appropriately licensed and credentialed to provide care
and meet the requirements of applicable regulations. In proposed Sec.
483.10(c), we added new paragraphs Sec. 483.10(c)(1), (2) and (3) to
specify that the physician chosen by the resident must be licensed to
practice medicine, and must meet professional credentialing
requirements of the facility.
In Sec. 483.10(d), we proposed to re-designate a number of
provisions relating to resident respect and dignity, based on existing
Sec. 483.13(a) and Sec. 483.15. We further proposed to add a new
Sec. 483.10(d)(5) to specify that a resident has the right to share a
room with his or her roommate of choice, when both residents live in
the same facility, both residents consent to the arrangement, and the
facility can reasonably accommodate the arrangement. We noted that
married couples, whether opposite or same sex, are addressed by Sec.
483.10(d)(5). Our proposed provision provided for a rooming arrangement
that could include a same-sex couple, siblings, other relatives, long-
term friends or any other combination as long as the requirements above
are met.
In proposed Sec. 483.10(e), we proposed to revise a number of
provisions relating to resident self-determination. We proposed to
revise Sec. 483.10(e)(3) to ensure not only that specified individuals
and/or organizations have access to the resident, but also to ensure
that the resident can receive his or her visitors of choice at the time
of his or her choosing. We proposed to revise Sec. 483.10(e)(4) and
(5), clarifying that it is the resident's right to participate in
family groups and have his or her family members or resident
representatives participate in family groups in the facility.
In Sec. 483.10(f), we proposed to re-designate and revise a number
of provisions relating to resident access to information. We proposed
to specify in Sec. 483.10(f)(2) that the resident has the right to
receive notices verbally (meaning spoken) and in writing (including
Braille) in a format and a language he or she understands. We also
proposed to add a new Sec. 483.10(f)(2)(i) to reference required
notices and a new Sec. 483.10(f)(2)(iv) to ensure residents are aware
of and can contact an Aging and Disability Resource Center or other
``No Wrong Door'' program.
[[Page 68703]]
Federal requirements and expectations related to the privacy and
confidentiality of patient records, in particular regulations governing
protected health information, changed substantially with the enactment
of the Health Insurance Portability and Accountability Act of 1996
(HIPAA) and subsequent issuance of the HIPAA Privacy and Security Rules
(see 45 CFR part 160 and subparts A, C, and E of part 164), the Health
Information Technology for Economic and Clinical Health (HITECH) Act
and the issuance of the HIPAA Breach Notification Rule and HIPAA Final
Rule (45 CFR part 160 and subpart D of part 164; 78 FR 5566, January
25,2013). For simplicity, we hereinafter collectively refer to these
laws and their implementing regulations as ``HIPAA.'' We note that
administration and enforcement of the privacy, security, and breach-
related portions of the HIPAA regulatory scheme are delegated to the
HHS Office for Civil Rights (OCR) and more detailed information related
to these regulations can be accessed through the OCR Web site at http://www.hhs.gov/ocr/privacy.
We proposed to retain the requirements of current Sec.
483.10(b)(2)(i) and (ii), subject to the clarifying revisions described
below, at new Sec. 483.10(f)(3). In doing so, we recognized that the
HIPAA rules establish a federal floor of privacy and security
protections and individual rights with respect to protected health
information held by covered entities (and their business associates),
and the rights granted in the proposed regulation do not conflict in
any way with the HIPAA regulations. In addition, to the extent that
HIPAA provides additional rights to individuals (that is, residents, in
the long-term care context) beyond what is provided in this proposal,
covered entities and business associates must comply with the
requirements in HIPAA to ensure individuals are afforded these
additional rights. Therefore, we proposed revisions to clarify the
relationship between the requirements of 45 CFR 164.524 and the revised
version of Sec. 483.10(f)(3)(i) and (ii). We proposed to specify in
paragraph (f)(3) that the resident has the right to access medical
records pertaining to him or herself and to further specify in proposed
(f)(3)(i) that the resident, upon oral or written request, has the
right to receive requested medical records in the form and format
requested by the resident, if it is readily producible in such form and
format (including in an electronic form or format when such records are
maintained electronically); or, if not, in a readable hard copy form or
such other form and format as agreed to by the facility and the
individual. This is consistent with the requirements of 45 CFR
164.524(c)(2). Finally, we proposed to specify in paragraph (f)(3)(ii)
that the facility could impose a reasonable, cost-based fee for
providing copies of the medical records, provided that the fee included
only the cost of labor for copying the health information requested by
the individual, whether in paper or electronic form; the supplies for
creating the paper copy or electronic media if the individual requested
that the electronic copy be provided on portable media; and postage,
when the individual requested that the copy be mailed. This is
consistent with 45 CFR 164.524(c)(4). We noted in the proposed rule
that this proposal does not address the creation or provision of
summary reports, which could be provided in accordance with applicable
law. More detailed information about the HIPAA right to access at 45
CFR 164.524 can be found at http://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/.
In Sec. 483.10(g)(1) we proposed to revise a number of provisions
related to resident privacy and confidentiality to update the language
to accommodate electronic communications. We proposed to retain
existing Sec. 483.10(c)(1) at proposed Sec. 483.10(g)(2), reiterate
the residents' right to a secure and confidential medical record at
proposed Sec. 483.10 (g)(3) and, in proposed Sec. 483.10(g)(4), we
retained the provisions of existing Sec. 483.10(e)(2) and (3).
In Sec. 483.10(h), we proposed to re-designate and revise a number
of provisions relating to resident communications. Specifically, we
proposed a new Sec. 483.10(h) Communications, with Sec. 483.10(h)(1)
revised to include Teletypewriter (TTY) and Telecommunications Device
for the Deaf (TDD) services and cellular telephones; and a new Sec.
483.10(h)(2) to provide reasonable access and privacy for electronic
communications such as email or internet-based interpersonal video
communications.
In Sec. 483.10(i), we proposed to revise the language to state
that the resident has a right to a safe, clean, comfortable, home-like
environment, and a right to receive treatment safely. In Sec.
483.10(j), we proposed to revise language relating to resident
grievances to add that a resident could not be deterred from voicing a
grievance for fear of reprisal or discrimination.
Comment: A number of commenters expressed concern about the way in
which CMS proposed to restructure the section on Resident Rights, and
particularly the fact that there was not complete parity between
residents' rights and facility responsibilities. One commenter stated
that, since residents, their families and advocates look at the
residents' rights language to know what residents' rights are (and they
may be given copies of the federal rights), it is important that the
statement of residents' rights be thorough, comprehensive, and
accurate. The commenter recommended that CMS add rights currently found
under Facility Responsibilities but not under Resident Rights to the
Resident Rights section. Another commenter stated that the list of
residents' rights should be complete and comprehensive and should not
require review of other requirements of participation (RoPs) in order
to identify all residents' rights.
One commenter stated that they were concerned with the likely
disruption of administrative and judicial decisions over the past 25
years interpreting the current regulations. Administrative Law Judges
and state and federal court judges could view changes in regulatory
language as signaling changes in administrative interpretation of the
Nursing Home Reform Law. They will view prior long-standing
interpretations of similar current regulations as no longer legally
binding as they interpret new regulatory language, following the legal
principle that an agency intends a new interpretation when it changes
the language of a regulation. They believed that an agency does not
change regulatory language unless it wants to make a change in the
prior interpretation of that language.
The commenter further objected to the reorganization of existing
RoPs because the commenter felt it would inevitably involve
unnecessarily long (but avoidable) delay. The commenter stated that CMS
would need to draft the final standards in response to public comments,
give facilities time to understand and implement the new Requirements,
create a new survey protocol, and train state and federal surveyors in
the new protocol, at the very least. As these multiple changes are
made, effective enforcement of RoPs, already weak, will be further
postponed.
The commenter noted that, to maintain the same regulatory standards
within the definition of substandard quality of care requires CMS to
combine subsections of multiple RoPs. The commenter recommended that,
instead of reorganizing the regulations, as CMS proposes, CMS should
retain the current regulatory structure as much as possible and to make
all revisions within that existing, familiar structure. Keeping the
current structure will save time and
[[Page 68704]]
effort on the part of CMS, surveyors, advocates, and providers alike,
time and effort that would be better spent on addressing RoPs that
actually reflect substantive change and improvement.
Response: We considered commenters' concerns regarding proposed
Sec. 483.10 and Sec. 483.11. Rather than increase duplication by
adding language to both sections, we have combined these two sections
for a comprehensive section that includes in a single location both
statements of resident rights and, co-located, the attendant facility
responsibilities to support those rights. We believe this addresses
commenters' concerns and meets the commenter's suggestion that the
statement of resident rights be thorough, comprehensive and accurate.
This reorganization, to the extent that the regulatory language is
unchanged, does not reflect any intent by CMS to change prior
interpretations of regulatory language. Rather, our intent, as stated
in the preamble to the proposed rule, is to improve the logical order,
readability, and clarity of the regulations. We continue to believe
that it is helpful to ensure that regulatory section titles reflect the
content of the section. Thus, we have included provisions that state
``the resident has a right to . . .'', in general, in a regulatory
section titled ``Residents Rights,'' we have included provisions about
prohibiting and preventing abuse, neglect and exploitation in a section
titled ``Freedom from Abuse, Neglect, and Exploitation,'' and we have
withdrawn our proposal to rename ``Admission, Discharge, and Transfer
Rights'' to retain the title that most clearly relays the content of
the section to the non-expert reader. We further clearly expressed in
the preamble to the proposed rule that we do not intend in this update
to diminish resident rights or protections. Rather, we want to ensure
that those rights and protections encompass advancements, such as in
the area of telecommunications, that were not envisioned when the
original regulations were written.
With regard to concerns that this revision will delay enforcement
of the requirements and that keeping the current structure would save
time and effort in updating facilities, surveyors, advocates,
providers, and, we would add, current and future residents, we disagree
that this effort is unnecessary or poorly focused. The commenter
contends that enforcement of the current requirements is already weak.
The efforts that we will undertake as a result of this rule to update
and improve interpretive guidance, to train surveyors, and to outreach
to the affected community of providers, residents, and caregivers will
lead to stakeholders' improved understanding of our higher
expectations, could result in improved efficiencies, and improve the
effectiveness of our survey process. This final rule will be effective
60 days after its publication, maintaining existing protections for
residents, with delayed implementation deadlines for certain sections,
where there are new expectations and requirements that require
additional time for providers to implement. Please see our discussion
of implementation in section II.B. of this preamble for additional
detail.
We received a significant number of specific comments on both
proposed sections Sec. 483.10 and Sec. 483.11. As we will finalize
these sections as a single section, we respond to all specific comments
on both proposed sections, following our description of our proposals
regarding facility responsibilities, below.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
We finalize a consolidated section Sec. 483.10, which
contains provisions proposed in Sec. 483.10 and Sec. 483.11. Specific
revisions are addressed in the following section.
F. Facility Responsibilities (Sec. 483.11)
We proposed a new Sec. 483.11 ``Facility Responsibilities,'' in
which we combined many of the regulations addressing facility
responsibilities which are currently dispersed throughout the existing
provisions regarding resident rights and quality of life.
Consistent with Sec. 483.10 and based on existing requirements,
the introductory language for proposed Sec. 483.11 would have
established that the facility would have to treat its residents with
respect and dignity and provide care and services for its residents in
a manner and in an environment that promotes maintenance or enhancement
of the resident's quality of life, and would be required to protect and
promote the resident's rights, as specified in Sec. 483.10. Further,
the facility would be required to recognize each resident's
individuality and provide services in a person-centered manner. We
proposed to establish sections similar to those proposed in Sec.
483.10. The proposed sections are ``Exercise of Rights,'' ``Planning
and Implementing Care,'' ``Attending Physician,'' ``Self-
Determination,'' ``Information and Communication,'' ``Privacy and
Confidentiality,'' ``Safe Environment,'' and Grievances.''
In a new section proposed at Sec. 483.11(a), ``Exercise of
Rights,'' we proposed a requirement that the facility would have to
promote and protect the rights of the resident. These are not new
requirements, and are already set out in our regulations as residents'
rights. In order to ensure clarity, we restated clearly in this
provision that it would be the responsibility of the facility to
recognize and effectuate those rights. Proposed Sec. 483.11(a)(1)
provided that the facility ensure that the resident could exercise his
or her rights without interference, coercion, discrimination, or
reprisal from the facility. We proposed to re-designate current Sec.
483.12(c)(1) as new Sec. 483.11(a)(2) and move to this section the
requirement that the facility provide equal access to quality care
regardless of diagnosis, severity of condition, or payment source and
establish and maintain identical policies and practices regarding
transfer, discharge, and the provision of services for all residents,
regardless of source of payment. In proposed Sec. 483.11(a)(3) and
(4), we specified that the facility would have to treat the decisions
of a resident representative as the decisions of the resident to the
extent required by a court, or as delegated by the resident, with the
condition that the facility could not extend greater authority to the
resident representative than would be permitted under applicable law.
In addition, we proposed to add a new Sec. 483.11(a)(5) to clarify for
facilities that if facility staff believed that a resident
representative was making decisions or taking actions that are not in
the best interest of the resident, the facility would have to comply
with any state reporting requirements that might apply.
In proposed Sec. 483.11(b), ``Facility responsibilities'' would
include ensuring that the resident was informed of, and participated
in, his or her treatment to the extent practicable, consistent with
Sec. 483.10(b). The resident could participate in care planning,
making informed decisions, and self-administering drugs when
appropriate. We also proposed new requirements in Sec. 483.11(b)(1) to
require that the facility ensured that the care planning process
facilitated the inclusion of the resident or resident representative,
included an assessment of the resident's strengths and needs, and
incorporated the resident's personal and cultural preferences in
developing goals of care. We proposed to re-designate Sec.
483.10(b)(9) as Sec. 483.11(c)(1) and revise it to add other primary
care providers to ensure that the resident would know the name,
specialty and
[[Page 68705]]
means of contacting the professionals officially responsible for his or
her care, whether that provider was a physician, nurse practitioner,
physician assistant, or clinical nurse specialist. We further proposed
to add a new Sec. 483.11(c)(2), consistent with our proposed Sec.
483.10(c)(1), (2) and (3), to clarify that the facility would have a
responsibility to ensure that the resident's attending physician had
appropriate professional credentials and met the requirements of this
subpart. If the physician was not appropriately credentialed or was
unwilling or unable to meet the requirements of this subpart, the
facility could seek an alternate physician after informing and
discussing this matter with the resident. In order to ensure that the
resident could seek out a suitable alternative, we proposed to add a
new Sec. 483.11(c)(3) to specify that if the resident subsequently
found a new physician who met the necessary requirements, the facility
would be required to honor that selection.
We proposed a new Sec. 483.11(d) to address the facility's
responsibilities related to resident self-determination. We proposed to
re-designate Sec. 483.10(j), regarding access to the resident, as
Sec. 483.11(d)(1), and revised it to include visitors as specified in
our ``Resident Rights'' provision, including immediate access to the
resident by the resident representative, and to update the languages
and references for the Office of the State long term care ombudsman and
the protection and advocacy system. In addition, we proposed to add a
new Sec. 483.11(d)(2) to require that the facility have written
policies and procedures regarding visitation rights of residents. We
proposed to re-designate Sec. 483.15(c)(5) as Sec. 483.11(d)(3)(ii)
and revised it to clarify that the facility-designated staff person who
participates in a resident or family group must be approved by the
resident or family group and the facility. In the proposed rule, we
clarified that this provision does not require a facility to implement
every recommendation of a resident or family group, but that the
facility should be able to provide the rationale for their response. We
proposed a new Sec. 483.11(d)(4), to incorporate requirements
currently specified in Sec. 483.10(h) and specify that the facility is
responsible for ensuring that a resident is not required to perform
services for the facility.
We proposed a new Sec. 483.11(d)(5), to incorporate requirements
from Sec. 483.10(c) that focus on the facility's responsibility
related to the protection of resident funds. Specifically, we proposed
in Sec. 483.11(d)(5)(ii) to reflect the different dollar threshold
requirements of sections 1819(c)(6)(B)(i) and 1919(c)(6)(B)(i) of the
Act and establish the statutory requirement for deposit of resident
funds in excess of $100 in an interest-bearing account for Medicare and
other non-Medicaid SNF residents, consistent with section
1819(c)(6)(B)(i) of the Act, and funds in excess of $50 for Medicaid
beneficiaries, consistent with section 1919(c)(6)(B)(i) of the Act. We
proposed in Sec. 483.11(d)(5)(v) to include the return of funds to
residents upon discharge or eviction, in accordance with state law in
addition to the already existing regulatory requirement for conveyance
to the estate upon death.
We proposed to add a new Sec. 483.11(d)(6)(i)(G) to indicate that
the facility may not charge the resident for hospice services elected
by the resident and paid for under the Medicare Hospice Benefit or paid
for by Medicaid under a state plan, whether provided directly by the
SNF, NF or by a hospice provider under agreement with the SNF or NF.
We proposed in Sec. 483.11(d)(6)(ii), re-designated from Sec.
483.10(c)(8)(ii), to add to the limitations on charges to residents'
funds. We proposed to add new Sec. 483.11(d)(6)(ii)(L)(1) and (2) to
clarify that the facility may not charge for special food and meals
ordered for a resident by a physician, physician assistant, nurse
practitioner, clinical nurse specialist, dietitian or other clinically
qualified nutrition professional and to cross-reference to provisions
regarding the expectation that the foods and meals a facility generally
prepares should be developed taking into consideration residents' needs
and individual preferences in addition to the overall cultural and
religious make-up of the facility's population. We proposed a
clarification in proposed Sec. 483.11(d)(6)(iii) by adding the term
``non-covered'' before ``item or service,'' as this provision would
only apply to non-covered items or services.
We proposed to establish a new Sec. 483.11(e) to incorporate
multiple provisions related to information and communication. With the
exception of medical records, we proposed in Sec. 483.11(e)(1) to
specify that the facility is responsible for ensuring that information
provided to the resident is provided in a form and manner that the
resident can access and understand, including in a language that the
resident can understand.
We proposed in Sec. 483.11(e)(2) to revise facility requirements
currently in Sec. 483.10(b)(2)(i) through (ii), consistent with our
proposal at Sec. 483.10(f)(3). We proposed in paragraph (e)(2)(i) to
require that facilities provide residents with access to their medical
records in the form and format requested by the individual, if it is
readily producible in such form and format (including in an electronic
form or format when such medical records are maintained
electronically); or, if it is not readily producible in such form and
format, in a readable hard copy form or other form and format as may be
agreed to by the facility and the individual. This proposal included
the existing requirement that access be provided upon oral or written
request, redesignated from Sec. 483.10(b)(2)(i), and that this access
be provided within 24 hours, excluding weekends and holidays, as
required by sections 1819(c)(1)(A)(iv) and 1919(c)(1)(A)(iv) of the
Act. We proposed at Sec. 483.11(e)(2)(i) to require that the facility
allow the resident, after receipt of his or her medical records for
inspection, to purchase a copy of the medical records or any portion
thereof upon request and with 2 working days advance notice to the
facility. We further proposed at Sec. 483.11(e)(2)(iii) to revise the
standard for the fee a facility may charge for the requested
information from a community standard to a cost-based standard under
which the fee includes only the cost of labor for copying the requested
health information, whether in paper or electronic form; the supplies
for creating the paper copy or electronic media if the individual
requests that the electronic copy be provided on portable media,
postage when the individual requested the copy be mailed. This is
consistent with the requirements of 45 CFR 164.524(c)(4).
We proposed to add a new Sec. 483.11(e)(3), incorporating and re-
designating part of existing Sec. 483.10(g)(1), with revisions
required by section 6103(c) of the Affordable Care Act, which added new
sections 1819(d)(1)(C) and 1919(d)(1)(V) of the Act. Those provisions
require that individuals have access to surveys of the facility
conducted by federal or state surveyors and any plan of correction in
effect with respect to the facility for the preceding 3 years. We note
that this provision does not require a specific format, but consistent
with proposed Sec. 483.11(e)(1), it must be in a form and manner
accessible to and understandable by the resident.
We proposed to add a new Sec. 483.11(e)(4)(i) and (ii) to require
the facility to post, in a form and manner easily accessible and
understandable to residents, resident representatives and support
persons, information that would allow individuals to contact pertinent
client advocacy groups, including the State Survey Agency, the state
licensure
[[Page 68706]]
office, the State Long-Term Care Ombudsman Program, the Protection and
Advocacy Network, and the Medicaid Fraud Control Unit. We also proposed
to require that the facility post a statement that a resident may file
a complaint with the State Survey Agency. The facility is already
required at existing Sec. 483.10(b)(7) to provide this information in
the written description of legal rights provided to the resident. The
provision would be re-designated at proposed Sec. 483.11(e)(12).
We proposed to add a new paragraph Sec. 483.11(e)(7)(i) to specify
that when a facility notifies a physician of a change in a resident's
status, the facility must ensure that certain pertinent information is
available and is provided to the physician upon request.
We proposed to revise the language of Sec. 483.10(b)(11)(i) and
re-designate it as new Sec. 483.11(e)(7)(i) to provide that the
facility would be required to notify the resident representatives,
rather than the current requirement that the facility notify ``. . .
the resident's legal representative or an interested family member . .
.'' The proposed language allows a guardian or other legal
representative as well as any other individuals the resident
identifies, including family members, other relatives, close personal
friends, or any other persons identified by the resident, to receive
the required notifications and thus remain informed of important
information about the resident.
We proposed to re-designate Sec. 483.10(b)(1), which addresses the
facility requirement to provide a notice of rights and services, as
Sec. 483.11(e)(9)(i) through (iii). We proposed one minor revision for
clarity in Sec. 483.11(e)(9)(ii) to state ``the State-developed notice
of Medicaid rights, if any'' instead of the current language ``notice
(if any) of the State developed under 1919(e) of the Act''.
We proposed to revise Sec. 483.10(b)(5)(i) and (ii) and re-
designate them as Sec. 483.11(e)(10). The revised provision specifies
that the facility must inform each resident, in writing, at the time of
admission to a Medicaid-participating nursing facility and when the
resident becomes eligible for Medicaid--(1) of the items and services
that are included in nursing facility services under the state plan and
for which the resident may not be charged; (2) of those items for which
the resident may be charged, and the amount of charges for those
services; and (3) inform Medicaid-eligible residents when changes are
made to the items and services in paragraph (e)(11)(i) of this section.
We proposed to revise and re-designate Sec. 483.10(b)(6) as new
Sec. 483.11(e)(11). In addition, we proposed to add new paragraphs (i)
through (v) to require the facility to provide notice to residents when
changes are made to the items and services covered by Medicare and/or
Medicaid or to the amount that the facility charges for items and
services.
To improve clarity, we proposed to re-designate Sec. 483.10(b)(7)
as new Sec. 483.11(e)(12) and revise current paragraph (b)(7)(iii) to
require that the facility provide the resident with ``a list of names,
addresses (mailing and email), and telephone numbers of all pertinent
state regulatory and informational agencies, resident advocacy groups
such as the State Survey Agency, the state licensure office, the State
Long-Term Care Ombudsman Program, the protection and advocacy agency,
adult protective services, the state or local contact agencies for
information about returning to the community and the Medicaid Fraud
Control Unit.'' Additionally, we proposed to revise current paragraph
(b)(7)(iv) to require that the facility include in the written
description of legal rights ``a statement that the resident may file a
complaint with the State Survey Agency concerning any suspected
violation of LTC requirements, including but not limited to resident
abuse, neglect, misappropriation of resident property in the facility,
non-compliance with the advance directives requirements, and requests
for information regarding returning to the community.''
We proposed a new Sec. 483.11(e)(13) that establishes that the
facility must protect and facilitate a resident's right to communicate
with individuals and entities both inside and external to the facility,
including at Sec. 483.11(e)(13)(ii) reasonable access to the internet,
to the extent it is available to the facility. Section
483.11(e)(13)((i) replaces Sec. 483.10(k) and Sec.
483.11(e)(13)((iii) revises and replaces Sec. 483.10(i)(2) with regard
to reasonable access to a telephone, including TTY and TDD services,
and to stationery, postage, writing implements and the ability to send
mail, respectively.
We proposed a new Sec. 483.11(f) to include provisions related to
privacy and confidentiality. Proposed Sec. 483.11(f)(1) requires that
the facility respect the resident's right to personal privacy. Proposed
(f)(1)(ii) incorporates the definition of personal privacy currently
set out at Sec. 483.10(e)(1). We proposed to replace the requirements
of existing Sec. 483.10(e)(2) with new Sec. 483.11(f)(2) which
requires the facility to comply with the requirements of proposed Sec.
483.10(g)(3). We proposed to re-designate existing Sec. 483.10(j)(3)
as Sec. 483.11(f)(3) and revise it to require that the facility allow
representatives of the Office of the State Long-Term Care Ombudsman to
examine a resident's medical, social, and administrative records in
accordance with state law. This is consistent with the requirements of
section 712(b)(1) of the Older Americans Act.
We propose a new Sec. 483.11(g) that would include provisions
related to a safe environment. Specifically, we propose to re-designate
Sec. 483.15(h)(1) through (7) as Sec. 483.11(g)(1) through (7) and
revise paragraph (g)(1) to include paragraphs (g)(1)(i) specifying that
the facility must ensure an environment where care and services can be
delivered safely, and (g)(1)(ii) specifying that the facility must
ensure that the physical layout of the facility maximizes independence
and does not pose a safety risk.
We proposed a new Sec. 483.11(h) Grievances, to incorporate the
facility responsibilities expressed in existing Sec. 483.10(f) and
also require that facilities ensure that residents know how to file
grievances. The proposed provision also requires that the facility
establish a grievance policy to ensure the prompt resolution of
grievances, and identify a Grievance Officer. Additionally, the
facility is required to provide a copy of this policy upon request, as
well as make information about filing grievances available to
residents. Furthermore, the facility would be required to take a number
of actions in response to a grievance, including:
1. Preventing further violations of resident rights during an
investigation,
2. Immediately reporting allegations of neglect, abuse
(including injuries of unknown source), and/or misappropriation of
resident property, by anyone furnishing services on behalf of the
facility, to the administrator of the facility and as required by
state law,
3. Ensuring that all written grievance decisions include the
date the grievance was received, a summary statement of the
resident's grievance, the steps taken to investigate the grievance,
a summary of the pertinent findings or conclusions regarding the
resident's concerns, a statement as to whether the grievance was
confirmed or not confirmed, any corrective action taken or to be
taken by the facility as a result of the grievance, and the date the
written decision was issued,
4. Taking appropriate corrective action in accordance with state
law if the alleged violation of the residents' rights is confirmed
by the facility or if an outside entity having jurisdiction confirms
a violation of any of these residents' rights within its area of
responsibility; and
[[Page 68707]]
5. Maintain evidence demonstrating the resolution of complaints
and grievances for at least 3 years.
Finally, we proposed a new Sec. 483.11(i) which requires that a
facility not prevent or discourage a resident from communicating with
Federal, State, or local officials, including but not limited to
Federal and State surveyors, other Federal or State health department
employees, including representatives of the Office of the State Long-
Term Care Ombudsman and of the protection and advocacy system.
General
Comment: Many commenters supported specific aspects or the overall
intent of our proposed revisions to resident rights and facility
responsibilities, and provided wording suggestions or relocations,
identified specific improvements, or raised concerns about specific
provisions. Some commenters recommended we retain the existing language
for a number of sections.
Response: We appreciate commenters support. We have considered each
wording suggestion, suggested improvement and area of concern. We did
not accept some wording changes or relocations that did not affect the
meaning of or add substantial clarity to the regulatory requirement, or
that were more appropriate to sub-regulatory guidance. Although we
considered them, we do not specifically address all of those
suggestions below. We also considered retaining existing language where
suggested but do not specifically address each suggestion below. We
discuss our response to comments on restructuring in section C.
Resident Rights (Sec. 483.10) of this preamble and address other
specific concerns and suggestions for change in the subsequent
sections.
Comment: Some commenters suggested we use the term ``oral'' instead
of ``verbal'' in a number of places.
Response: While both terms are accurate, we agree we should be
consistent. Therefore, we have replaced the term ``verbal'' with
``oral'' throughout the regulation.
Comment: One commenter stated, with regard to resident rights as
enumerated at Sec. 483.10, that the proposed rule encourages a culture
change towards a more resident-focused approach towards long term care.
They note that improving quality of life and quality of care, allowing
choices in daily living, and assisting individuals to make informed
health care decisions are all major goals of culture change and person-
centered care. They further state that involving individuals in choices
about food and dining such as food selections, dining locations, and
meal times can help them maintain a sense of dignity, control, and
autonomy and they applaud CMS for proposing to revise its regulations
in accordance with this resident-focused philosophy.
Response: We thank the commenter for their support. Person-centered
care was one over-arching principle of our proposal. In addition, we
believe that principles of quality of life and quality of care are also
over-arching principles that apply to all the requirements for long-
term care facilities. Many of the items the commenter mentions speak
directly to each of these principles.
Comment: Some commenters stated that these requirements involve
costly measures for nursing facilities. One commenter stated this would
require them to employ translators, procure translation technology, or
overhaul facility communications.
Response: Facilities should already have access to these services.
Facilities are currently required to have the ability to communicate
effectively, verbally and in writing, with residents. For example,
facilities must inform residents in a language they can understand of
their total health status and to provide notice of rights and services
both orally and in writing in a language the resident understands.
Resident's Rights
Comment: Some commenters expressed concern that proposed revisions
would diminish resident rights.
Response: We have maintained existing resident rights and
protections, and have made revisions to ensure that those rights and
protections encompass advancements, such as in the area of
telecommunications, that were not envisioned when the original
regulations were written.
Comment: One commenter recommended strengthening the wording of
Sec. 483.10(b)(5)(ii) to include asking residents their goals first.
The commenter stated that the best and most respectful practice
relative to establishing goals with residents starts with inquiry of
the resident as to their preferred goals.
Response: This provision establishes the resident's right to
participate in the care planning process. Section 483.21 addresses
comprehensive person-centered care planning and is responsive to the
commenter's concern. Please see our discussion of Sec. 483.21(b),
comprehensive care plans.
Comment: One commenter strongly support the new language that
reads: ``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.'' Several commenters
suggested that ``facility'' be changed to ``home or nursing home.''
Response: We thank the commenters for their support and their
suggestion. We have retained the term ``facility'' throughout the
regulation in keeping with the statutory language that serves as the
basis for these regulations.
Exercise of Rights
Comment: A few commenters recommended that CMS explicitly include
the right to vote and to require facilities to have policies and
procedures to support voting. One commenter suggests that such policies
and procedures include:
A process for informing new residents about voting
registration or change of address procedures;
assistance in registering as needed and desired by the
resident;
procedures for informing residents of elections, including
date, time, and location of voting places and community resources
available to provide assistance;
assistance with transportation to polling places;
processes for reaching out to election officials to
develop a plan for officials to come to the facility to register
residents and conduct voting to the maximum extent election officials
have the ability to do this;
the designation of staff charged with assisting with
voting; and
training of designated staff in how to help a resident who
requires assistance to vote where election officials are unable to
provide that service to the extent needed.
The commenters contend that currently, residency in a LTC facility
poses an enormous obstacle to exercising voting rights.
Response: The regulations, as proposed, state that the resident has
the right to exercise his or her rights as a resident of the facility
and as a citizen or resident of the United States, that the facility
must ensure that the resident can exercise his or her rights without
interference, coercion, discrimination, or reprisal from the facility,
and that the resident has the right to be free of interference,
coercion, discrimination, and reprisal from the facility in exercising
his or her rights and to be supported by the facility in the exercise
of his or her rights as required under this subpart. Furthermore,
facility staff
[[Page 68708]]
must be trained with regard to these rights and the facility
responsibilities with regard to these rights, and residents must be
informed of their rights. These requirements certainly include the
right to vote. The suggested policies and procedures represent best
practices, but we are concerned that some of the suggestions, such as
requiring that facilities train designated staff to help a resident who
requires assistance to vote where election officials are unable to
provide that service, are overly prescriptive and burdensome. We would
defer additional specificity with regard to this section to
interpretive guidance.
Comment: A number of commenters expressed concern about the role of
the resident's representative. One commenter urged CMS to encourage an
appropriately expansive view of the representative's role while
ensuring respect for the resident's right to self-determination. One
commenter strongly supports proposed requirements that clarify that
representatives can only exercise the rights delegated to them. Another
commenter recommended that nursing facilities be required to have
clearly defined procedures regarding resident representatives. The
commenter recognized that a resident may not be prepared to designate a
representative at the time of admission due to other pressing issues
and suggests that nursing facilities should periodically remind
residents that they have the option to select one or more
representatives. Some commenters were concerned that nursing facility
staff may not become aware of the resident's selection of a
representative and recommended that CMS require nursing facilities to
establish a mechanism for formally recording the designation of a
representative and informing staff of the resident's selection and
scope of delegation of responsibilities. Commenters also recommended
that nursing facilities have a process for the residents to designate
what they want to happen in the event that a resident is adjudged to be
incompetent under the state law.
Some commenters stated that they disagreed that a resident has
``the right to revoke delegation'' of a court-appointed guardian when
they have been deemed incompetent by a court. Similarly, if the
practitioner in their professional opinion has determined the
resident's medical condition impairs their decision-making capacity
such that a resident's representative appointed by advanced directive
or durable power of attorney needs to make decisions, a resident cannot
revoke that representative. Some commenters expressed that the resident
representative should be making decisions in the best interest of the
resident or consistent with the resident's specified wishes and that
the facility should try to resolve discrepancies and, if unresolvable,
seek to legally remove the assigned representative.
Some commenters objected to allowing residents to have more than
one representative. One commenter expressed concern that having a
resident representative in addition to one appointed by the court or by
the resident's own authorization through advance directives or a
durable power of attorney will slow notifications and increase the
likelihood of disagreements which may delay health-care decisions and
necessary care. The commenter recommended that the definition of
resident representative be modified to apply only when the resident
does not have either a court-appointed guardian or an already
designated health care proxy such as a durable power of attorney for
health care or person specified in a living will to avoid having
multiple resident representatives that will delay decision-making while
differences are reconciled and requiring multiple notifications of
numerous parties.
With regard to residents who have been adjudged incompetent, some
commenters agreed that residents should retain as many rights as
possible and their preferences be elicited and honored whenever
possible. Once commenter felt that our proposed language will likely
add confusion and is not internally consistent. The commenter stated
that the court order for scope of decisions is not always clearly
defined and the distinction between medical care decisions in the
context of frail elderly in LTC facilities and personal decisions
regarding quality of life often is not clear, resulting in confusion
about who is the appropriate decision maker. The commenter is concerned
that multiple decision makers will make this situation worse.
One commenter recommended that the definition of ``resident
representative'' be modified to apply only when the resident has
neither a court-appointed guardian nor a designated healthcare proxy
through advance directives nor an identified durable power of attorney.
Response: We believe we have taken a comprehensive view of the role
of resident representatives and the right of residents to choose
whomever they want to assist them in making healthcare and other
decisions both while the resident retains decision-making capacity and
in the event a resident should not have or would lose after admission
this capacity. See our discussion above, regarding the definition of
``resident representative.'' The term is not intended to create a new
role, but instead is a general term intended to encompass several terms
used to describe an individual who a resident or court provides with
authority, in accordance with federal or state law, to participate in
health care discussions or to make decisions on behalf of a resident.
Nothing in this paragraph requires that a resident appoint or have a
resident representative. We agree that a resident who is adjudicated
incompetent cannot revoke a court's delegation of authority to a
representative, which is why Sec. 483.10(b)(3)(ii) defers to state
law. In addition, residents adjudged incompetent by a court of
competent jurisdiction are separately addressed in Sec. 483.10(b)(7).
With regard to limiting the rights of residents to have more than one
representative, we decline to do so and defer to state law, to the
extent that state law does or does not address this concern. While we
acknowledge that multiple representatives could create complexity in
decision making, we do not believe it is necessary or appropriate for
us to limit the resident's ability to do so when state law would allow
this. With regard to medical determinations of incapacity, we again
defer to state law. Physicians can and do make determinations regarding
an individual's decision-making capacity. We are aware that, at least
in some states, if a patient disputes a determination of incapacity, a
surrogate's decision-making cannot be substituted for the patient's
until a court decides the matter. For certain situations, more than one
physician's determination that a patient lacks decision-making capacity
is required. With regard to the comprehensive nature of court
decisions, we agree that generally such a decision would be in regard
to an individual's ability to make all decisions. However, should a
court's determination be more limited, we believe it is important that
a resident be allowed to exercise his or her rights and to not have the
facility extend the court's decision in deferring to a court-appointed
representative. With regard to our reference to a court's order,
generally, a court's determination would be formalized through a court
order. However, for clarity in the event that a court's determination
does not result in an order, we have modified our language to refer to
the court's determination. We note that, in
[[Page 68709]]
Sec. 483.10(b)(4), we require that the facility must treat the
decisions of a resident representative as the decisions of the resident
to the extent required by the court or delegated by the resident, in
accordance with applicable law. This requirement presumes that a
facility knows when a resident has a representative and the nature of
the representative's appointment. We will not, at this time, be
prescriptive regarding what a facility must do to fulfill this
obligation, however, we would expect a facility to have process in
place in order to ensure that they meet this requirement.
Comment: One commenter requested that CMS explicitly incorporate
the concept of negotiated risk into proposed Sec. 483.10(a)(2), which
states that the resident has the right to be free of interference,
coercion, discrimination, and reprisal from the facility, and to be
supported by the facility in exercising his or her rights.
Response: The rights of the resident to be informed about and agree
to, refuse, and/or discontinue treatments are established under
planning and implementing care, Sec. 483.10(c), and further addressed
section Sec. 483.21, ``Care Planning.'' We defer any additional
discussion to sub-regulatory guidance.
Comment: Another commenter recommended that we amend language at
proposed Sec. 483.10(a)(4) (iii) to read: ``The resident's wishes and
preferences must be considered in the exercise of rights by the court-
appointed representative'' rather than ``the resident's wishes and
preferences must be considered in the exercise of rights by the
representative.''
Response: A resident representative, whether court-appointed or
not, should take the resident's wishes and preferences into
consideration in the exercise of delegated authority. However, CMS has
no authority to compel any action on the part of representatives,
regardless of status.
Comment: One commenter suggested that the intent of proposed Sec.
483.10(a)(4)(i) was unclear.
Response: Our intent is to ensure that, in the case of a limited
guardianship, a facility does not defer all decision making to a
guardian, when a court's determination does not require it. While
guardianships are often general in nature, giving all decision making
authority to a guardian, in some case a guardianship may be limited. A
limited guardian has the authority to make decisions only in specific
areas, such as financial or residential. Typically, a court's findings
of fact and orders or the guardian's letters of appointment will
identify these areas. Facilities are expected to be aware of when a
guardianship is limited and not automatically defer all decisions to a
guardian. We are finalizing this provision at Sec. 483.10(b)(7)(i) and
have revised it to state that, in the case of a resident representative
whose decision-making authority is limited by State law or court
appointment, the resident retains the right to make those decision
outside the representative's authority.
Comment: One commenter stated that in proposed Sec. 483.10(a)(5),
the first sentence in this section covers everyone who is covered under
state law. Therefore, it is superfluous to single out a specific group
later on in the paragraph.
Response: The provision in question states that ``In the case of a
resident who has not been adjudged incompetent by the state court, the
resident has the right to designate a representative, in accordance
with state law and any legal surrogate so designated may exercise the
resident's rights to the extent provided by state law. 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.'' We originally included this language to
account for State law that did not recognize the validity of same sex
marriages. Although all states must now, pursuant to the Supreme
Court's decision in Obergefell v. Hodges (576 U.S. __, 135 S.Ct. 2584
(2015)) both issue same-sex marriage licenses and recognize the
validity of such licenses issued in other states, in order to emphasize
the importance of this provision, we are finalizing it as proposed.
Comment: One commenter asked if proposed Sec. 483.11(a)(3) and (4)
overrides a state statute that permits a NF provider to refuse to
comply with health care agents' directives where they question the
agent's ``good faith'' and to have the issue resolved by a court or
agency as needed. The comments asked if the NF provider had to comply
with a resident representative's decision until and unless the NF
obtains court authority pursuant to Sec. 483.11(a)(5).
Response: Proposed Sec. 483.11(a)(3) and(4) are finalized as Sec.
483.10(b)(4) and (5). Both provisions state that the requirement is
``in accordance with applicable law,'' which would include applicable
state law. Proposed Sec. 483.11(a)(5), finalized at Sec.
483.10(b)(6), requires the facility to report, when a resident
representative is making decisions or taking actions that the facility
believes are not in the best interests of the resident as required by
state law. Our regulations defer to state laws rather than preempt
them.
Comment: One commenter was concerned that proposed Sec.
483.11(a)(5) is confusing and could lead to underreporting of suspicion
of crimes.
Response: We agree our language could be confusing and have
modified it to state: ``[i]f the facility has reason to believe that a
resident representative is making decisions or taking actions that are
not in the best interests of a resident, the facility shall report such
concerns in the manner required under State law'', finalizing it at
Sec. 483.10(b)(6).
Comment: One commenter suggested that the order of proposed Sec.
483.11(d)(3)(iii)(A) (limiting the requirement to act on residents' of
families' requests and grievances) and (B) (requiring that facilities
demonstrate that they have responded to such requests and grievances)
should be reversed to emphasize that while a facility must have a
response for every grievance or recommendation from a resident or
family group, not every request has to be adopted as recommended.
Response: We agree that the suggested modification better conveys
the information and have the provision accordingly, finalizing it at
Sec. 483.10(f)(5)(iv)(A)&(B).
Comment: One commenter requested that we clarify that proposed
Sec. 483.11(d)(5)(v) precludes a facility from taking resident funds
for past due balances before the facility conveys any personal funds to
a resident or resident representative.
Response: Proposed Sec. 483.11(d)(6), which we finalize at Sec.
483.10(f)(11), addresses those items and services for which a facility
may or may not impose a charge against the resident's personal funds.
Comment: CMS begins the newly-named ``Facility Responsibilities''
section by expanding on existing requirements that facilities must
treat residents with respect and dignity, and provide care and services
that maintain or enhance the resident's quality of life and protect the
resident's rights. The commenter supported the new ``Exercise of
Rights'' Sec. 483.11(a), including proposed Sec. 483.11(a)(2)'s
requirement that facilities provide ``equal access to quality care
regardless of diagnosis, severity of condition, or payment source and
establish and maintain identical policies and practices regarding
transfer, discharge, and the provision of services for all residents
regardless of source of payment.'' The commenter encouraged CMS to
provide greater clarity on proposed Sec. 483.11(a)(3) and (4) over the
[[Page 68710]]
expectations of facilities deferring to resident representatives for
decisions that exceed the scope of a court order, resident delegation,
or other applicable law. Similarly, proposed Sec. 483.11(a)(5)'s
language of expectations for facilities complying with state
requirements in the case of a resident representative making decisions
not in the best interest of the resident seems rather vague and may
provide potential for abuse.
Response: We thank the commenter for their support. Please see our
previous response with regard to resident representatives. As we
discussed in the preamble, we understand that there is a potential for
abuse in the relationship between a resident and his or her resident
representative, such as a guardian, and we want to ensure that
facilities recognize their role in identifying and reporting such
concerns in accordance with applicable state law. We would defer more
detailed discussion to interpretive guidance.
Comment: Some commenters were concerned about the requirement that
``[t]he facility must provide equal access to quality care regardless
of diagnosis, severity of condition, or payment source.'' One commenter
felt that this suggests that every facility must provide care for every
individual regardless of the facility's care expertise or the ability
to care for every condition any individual might have. For example, a
person may require the use of a ventilator yet not every facility has
the ability to provide care for such patients. Similarly, a facility
that provides care for frail elders is unlikely to have the expertise
to care for a child who requires facility care. The commenter suggested
we delete ``diagnosis.'' One commenter pointed out that facilities,
like clinics, may specialize in providing services to residents with
specific conditions. Another commenter, while supporting the
expectation to provide quality care (that is, safe, effective, person-
centered, equitable, efficient, and timely) to everyone, recommends
deleting ``equal access to,'' stating that terms such as ``equal
access'' can easily be misconstrued as requiring the same amount of
care or comparable treatments regardless of need or condition.
Response: We note that the phrase ``equal access to quality care''
is statutory language, specifically identified as a requirement
relating to residents' rights in both sections 1819(c)(4) and
1919(c)(4) of the Act, and refers to the issue of possible
discrimination in treatment based on the source of payment. We
therefore are retaining the language as proposed in Sec. 483.11(a)(2),
finalizing it at Sec. 483.10(a)(2).
This provision is not intended to require that every facility have
every possible capability and unlimited capacity. However, a facility
cannot choose, deliberately or inadvertently, to provide higher quality
care to some residents over other residents in the facility based on
diagnosis, severity of condition, or payment source. For example, if
two residents require the same care, one resident cannot receive a
lesser quality because the payer is Medicaid rather than Medicare. The
amount and type of care is based on the resident's needs and goals, as
evidenced by the care plan.
These provisions are also not intended to facilitate selective
admissions or transfers. We considered, but did not include, admissions
when we reviewed the existing requirement that requires a facility to
establish and maintain identical policies and practices regarding
transfer and discharge. Facilities are expected, as required by our
provision for a facility assessment, to know their own capabilities and
capacities when making admissions decisions. This expectation would
apply to the second example provided by the commenter. Once an
individual is a resident of the facility, the facility is obligated to
provide equal access to quality of care, as stated in this provision.
Thus, a facility that admits a pediatric resident is expected to
provide quality care to that resident, based on that resident's needs.
If a resident's condition changes such that a facility does not have
the ability and is unable make accommodations to provide the care that
a resident requires, that is an acceptable reason for discharge or
transfer under Sec. 483.15, as it is permissible to discharge or
transfer a resident when it is necessary for the resident's welfare and
the resident's needs cannot be met in the facility. This provision
would apply in the instance where a resident's condition declines such
that a ventilator is required in a facility that does not have the
expertise or equipment to provide care to a ventilator dependent
resident. However, the facility will have to include in its
documentation the specific resident needs that it cannot meet, facility
attempts to meet the resident needs, and the service(s) available at
the receiving facility that will meet the resident's needs.
Comment: Some commenters were concerned that we do not include
admission in the statement regarding equal access to quality of care
and are concerned that this can result in discrimination in violation
of Title VI of the Civil Rights Act of 1964. Another suggested that we
expressly prohibit all forms of discrimination against residents.
Response: Nothing in these regulations allows facilities to violate
other statutes or regulations. Furthermore, facilities are expressly
required by Sec. 483.70(b) to operate in compliance with all
applicable Federal, State, and local laws, regulations, and codes. This
includes, for example, the Americans with Disabilities Act and section
504 of the Rehabilitation Act. In addition, Sec. 483.70(c) explicitly
requires compliance with other HHS regulations. This would include but
not be limited to those regulations pertaining to nondiscrimination on
the basis of race, color, or national origin (45 CFR part 80);
nondiscrimination on the basis of disability (45 CFR part 84);
nondiscrimination on the basis of age (45 CFR part 91); non-
discrimination on the basis of race, color, national origin, sex, age,
or disability (45 CFR part 92); protection of human subjects of
research (45 CFR part 46); and fraud and abuse (42 CFR part 455) and
protection of individually identifiable health information (45 CFR
parts 160 and 164). These provisions cover all phases of patient care,
including, but not limited to, admissions.
Planning and Implementing Care
Comment: One commenter supported proposed changes to ensure that
the resident is informed of, and participates in, his or her treatment,
and that the resident participates in care planning. However, the
commenter urged CMS to include stronger language with regard to
including the resident or the resident's representative. The commenter
strongly suggested that CMS include specific language that would
require nursing facilities to provide reasonable advance notice to
resident representatives of the care planning meeting, establish
alternative means of participating (for example, via telephone or video
conferencing), offer a reasonable choice of dates and times, and
document the same. This would help facilitate the participation of
resident representatives in care planning.
Response: We thank the commenter for their support of our proposal
at Sec. 483.11(b), which we are finalizing at Sec. 483.10(c), and for
their comments regarding care planning. We refer readers to our
discussion of Sec. 483.21 for further discussion of care planning.
Comment: Some commenters suggested that we add that residents have
a right to a copy of the care plan.
Response: We appreciate the comments that were submitted on this
[[Page 68711]]
issue. While we agree that a resident should be able to review their
own comprehensive care plan, we also understand that the comprehensive
care plan is a clinically oriented document that is frequently reviewed
and updated based on the needs of the resident. Therefore, in an effort
to further promote a resident's right to be informed, while balancing
the burden imposed on facilities, we have revised Sec. 483.21(a)(3) to
require facilities to provide residents and their resident
representatives with a summary of their baseline care plan. This
summary must include, but is not limited to, the initial goals of the
resident, a summary of the resident's medications and dietary
instructions, any services and treatments to be administered by the
facility and personnel acting on behalf of the facility, and any
updated information based on the details of the comprehensive care
plan, as necessary. Note that this summary is subject to the provisions
at Sec. 483.10(g)(3) and must be provided in a form and manner the
resident can access and understand, including in an alternative format
or in a language that the resident can understand.
Furthermore, we note that Sec. 483.10(c)(2)(v) gives the resident
the right to see the care plan, along with the right to sign it after
significant changes. The intent is to ensure that the resident, to the
extent practicable and consistent with the resident's choices,
demonstrates his or her participation in and review of his or her care
planning and that participation is evident to care-givers, surveyors,
and other interested parties. We believe that the combination of these
resident rights, with the responsibility of the facility to provide a
summary of the baseline care plan and include the resident as a member
of the interdisciplinary care team, will actively engage residents in
their care planning process.
Lastly, we would encourage a facility to provide a copy of the full
comprehensive care plan upon request; with the understanding that care
plans are dynamic documents that may change frequently. We believe that
the comprehensive care plan should serve as an important tool for
delivering patient-centered care and encourage facilities to explore
ways to allow residents, families, and other representatives to access
the care plan on a routine basis as appropriate, for instance, using
technology solutions that enable real-time access for authorized users
and dynamic updating by members of the care team. In addition, as
finalized, residents have a right to review and obtain a copy of their
medical record, or any portion thereof under Sec. 483.10(g)(2)(ii).
The care plan is included in the medical records. Sections
1819(b)(6)(C) and 1919(b)(6)(C) of the Act state that clinical records
on all residents include the plans of care and the residents'
assessments. We discuss our use of the term ``medical record'' in our
discussion of Sec. 483.70(i). As noted in that discussion, we regard
the terms ``medical record'' and ``clinical record'' as synonymous.
Comment: Some commenters expressed concern about proposed
requirements to inform the resident in advance of changes to the care
plan and the right to see and sign the care plan after the changes are
made. Commenters stated that the care plan is an evolving document and
suggested that care could be delayed to wait on getting a signature,
placing residents at risk for fall, skin breakdown, weight loss, and
other undesirable outcomes.
Response: The right of the resident to be informed, in advance,
about care and treatment and of changes in care and treatment that may
affect the resident's well-being is not new. It is important that the
resident receives information necessary to make a health care decision,
including information about his or her medical condition and changes in
medical condition, about the benefits and reasonable risks of the
treatment, and about reasonable available alternatives. Care necessary
to prevent an adverse event or outcome should not be delayed just to
obtain a signature on a care plan. However, we expect that residents
will be involved, to the extent possible and as desired by the
resident, in care planning. This includes seeing the care plan
initially and after changes are made. Allowing the resident to sign the
care plan after changes are made documents the resident's involvement.
Furthermore, it supports both staff and resident perceptions that the
resident is a vital member of the care planning team. We understand
that care plans are evolving documents and would not expect that
facilities would ask residents to sign care plans on a daily basis,
and, therefore, have modified Sec. 483.10(c)(2)(v), as finalized, to
state that the resident has the right to sign the care plan after
significant changes.
Comment: Some commenters suggested that CMS specifically include
language related to informed consent. Others felt that language in
proposed Sec. 483.10(b)(2)(iii) needed further definition. One
commenter appreciated CMS' proposed language recognizing the residents'
right to be informed in advance of the risks and benefits of proposed
care and treatment, especially with respect to the use of antipsychotic
drugs often without first obtaining informed consent. The commenter
believed that nursing facilities should be required to document that
the attending physician discussed the benefits, risks, and alternatives
of a drug with the resident and/or the resident's representative and
that the doctor obtain informed consent prior to administering the
drug(s). Some commenters suggested that this language was too
restrictive and could delay care. One commenter suggested we revise the
regulatory language to say ``the right to be informed, to the extent
practicable, in advance of changes to the plan of care.'' Another
commenter stated that advising the resident of the risks and benefits
of proposed care, treatment and treatment alternatives or options are
the responsibilities of the practitioner, not the facility, and
recommends we revise the language accordingly. The commenter also
stated that the resident should be informed of his or her right to
refuse the medication and of alternative behavioral interventions, and
this should be documented, as well. With respect to a resident's right
to refuse a particular treatment or medication, the commenter was
concerned that language stating that ``nothing in this paragraph should
be construed as the right of the resident to receive the provision of
medical treatment or medical services deemed medically unnecessary or
inappropriate'', as currently worded, could be used by nursing facility
physicians and staff to deny a resident's/representative's request for
alternative behavioral interventions on the basis that a physician or
nursing facility nurse believes that a drug regimen is a better or more
appropriate treatment. The commenter suggested that, in order to
protect the resident's right to self-autonomy, CMS should clarify the
definition of ``medically unnecessary or inappropriate'' in this
context to make it clear that such decisions should be evidence-based.
Another commenter suggested that CMS clarify the meaning of
``clinically appropriate.''
Response: Antipsychotic medications are addressed in Sec. 483.45.
Please see our discussion of comments related to that section. Although
the requirements do not use the term ``informed consent,'' and informed
consent laws may vary from state to state, the elements of informed
consent are generally contained in the statements of resident rights.
Proposed Sec. 483.10(b)(3) establishes the resident's right to be
informed in advance of the risks and
[[Page 68712]]
benefits of proposed care, of treatment and treatment alternative or
treatment options, and to choose the alternative or option that the
resident prefers. We note that the right to be informed in advance
about care and treatment is not a new right and the facilities are
already required to meet this requirement. Proposed Sec. 483.10(b)(4)
establishes the resident's right to request, refuse, or discontinue
treatment. We agree that it is the responsibility of the practitioner
to discuss the risks and benefits of proposed care, treatment and
treatment alternatives or options with a resident or their
representative and have modified the provision accordingly, now at
Sec. 483.10(c)(5). In addition, the practitioner is responsible for
documenting this discussion in the medical record. The facility has a
role in supporting the resident's rights, for example, by ensuring a
resident or resident representative knows how to contact a provider. As
one commenter noted, facilities can help residents facilitate existing
informed consent rights, but may not abridge or abrogate them. With
regard to clarifying the definition of medically unnecessary or
inappropriate, we believe that there is a clear distinction between an
alternative that a provider may not prefer and a treatment or service
that is medically unnecessary or inappropriate. We defer additional
discussion/examples of ``medically unnecessary'' as well as
``clinically appropriate'' to interpretive guidance.
Comment: Some commenters stated that they were pleased to see that
the proposed regulations support the resident's right to participate in
care planning. One commenter suggests we require that CMS require the
planning process to identify staffing practices that maximize staff's
delivery of person-centered care and the prevention of adverse events.
Response: We considered these suggestions, but are not
incorporating them at this time. Staffing provisions address the need
to ensure that nursing and other staff have the appropriate
competencies and skills sets to provide nursing and related services to
assure resident safety and attain or maintain the highest practicable
physical, mental, and psychosocial well-being of each resident, as
determined by resident assessments and individual plans of care and
considering the number, acuity and diagnoses of the facility's resident
population in accordance with the facility assessment required at Sec.
483.70(e). Adverse events, including monitoring and prevention, are
addressed by QAPI.
Comment: One commenter was concerned that the use of some terms is
unclear. The commenter stated that the use of the term ``roles'' in
proposed Sec. 483.10(b)(5)(i) was confusing and should be replaced
with a word that is clearer as to the intent. Other commenters asked if
this meant that the resident could choose which nurse/therapist/aide
would participate in the care plan meeting or if the meeting could not
proceed if that individual was unable to participate. One commenter was
concerned that the meaning of the phrase ``and the disciplines that
will furnish care'' in proposed Sec. 483.10(b)(2) was unclear and
suggested ``The right to be informed, in advance, of the care to be
furnished and the professions/practitioners/departments that will
furnish care.'' The commenter offered other specific language
alternatives.
Response: We reviewed these sections. We believe the term ``roles''
is appropriate. A resident may not be able to identify a specific
person they want included in the planning process, or a specific
individual may be unable to participate, but that should not prevent
the resident from including a role, such as an individual to provide
spiritual, nutritional, or behavioral health input. With regard to the
term ``disciplines,'' to improve clarity, we have revised it to read
``type of care giver or professional'' that will furnish care.
Comment: Some commenters were concerned about adequate resident
involvement in the care planning process. One commenter stated that
``often the resident or their representative is not aware of the right
to participate in the development and implementation of his or her
person-centered plan of care.'' The commenter was concerned that,
although proposed Sec. 483.10(b)(5)(i) allows the resident to request
the right to participate in the planning process, if the resident isn't
aware of the right, they are unable to implement it. The commenter
recommended that CMS add language requiring the facility to ask the
resident or resident representative at least quarterly if they choose
to participate in the planning process, and to inform the resident of
the date and time of the meeting. Another commenter suggested setting a
minimum number of care planning meetings per year, such as monthly or
quarterly, that the facility must invite the resident or representative
to attend.
Response: We believe that our proposed requirements adequately
address resident involvement in the care planning process. Regulations
at Sec. 483.21(b)(2)(ii)(E) require that to the extent possible the
resident and/or their representative(s) must participate on the IDT
that develops the resident's care plan. In addition, regulations at
Sec. 483.21(b)(2)(ii)(E) require that the facility provide an
explanation in the resident's medical record if the participation of
the resident and their representative is determined not practicable for
the development of the resident's care plan. We encourage readers to
refer to section H, ``Comprehensive Person-Centered Care Planning''
(Sec. 483.21) for a detailed discussion regarding the care planning
requirements.
Comment: Some commenters applauded CMS's inclusion of advance
directives in several provisions of the proposed rule and recommended
that CMS incorporate other advance care planning tools in all
provisions relating to advance directives. Commenters specifically
recommended CMS incorporate recognition of Physician Orders for Life
Sustaining Treatment (POLST) in several sections of the regulation,
including defining ``Portable Order for Scope of Treatment.''
Commenters further suggested adding such orders as required
documentation in the resident's medical record, if applicable and with
the resident's consent, including such orders in both the baseline and
comprehensive care plan, when applicable, and a review and update of
such orders as part of the discharge planning process. One commenter
recommended that CMS encourage repeated conversations related to
advance care planning throughout a resident's stay.
Response: We thank the commenters for their support for the
inclusion of advance directives. We note that advance directives are
currently included in the requirements for participation and our
proposed revisions were primarily to improve clarity and readability.
We also thank the commenters for their suggestions but decline to add
additional regulatory requirements regarding portable orders for scope
of treatment at this time. We recognize that these tools serve a
function beyond advance directives. Several of our requirements are
also intended to facilitate shared, informed decision making and
communication between health care professionals and residents with
serious, progressive illness or frailty. These requirements apply both
to the resident's care within a facility and to communication with
other providers when a resident is transferred or discharge. We would
expect that the issues that are addressed by portable orders for scope
of treatment would be raised in the context of advanced directives as
well in ongoing
[[Page 68713]]
discussions related to care planning and keeping in mind residents'
goals of care and treatment preferences. To the extent applicable, such
concerns should also be reflected in resident's discharge plan and
discharge summary. All physician orders are documented in a residents'
care plans. We note that a few states have developed POLST programs, a
few states do not have such a program, and many states are in the
process of developing such programs. Consistent with state law, it
would be appropriate for facilities to inform residents about portable
orders for scope of treatment, as those tools are referenced and
recognized within the state. We note that current requirements already
require a facility to provide written information to residents that
includes a description of the facilities policies to implement advance
directives and applicable state law.
Comment: One commenter was concerned with regard to Advance
Directives that providing information is inadequate unless the facility
explains what the information means, and suggested that CMS add
language to require that an explanation to the resident or resident
representative about what the various advance directives mean,
including different code statuses, and that it can be changed if
desired in the future.
Response: Facilities are required to provide written advance
directive information in accordance with 42 CFR part 489, subpart I. In
addition, residents have a right to be informed of their total health
status; the right to be informed in advance, by the physician or other
practitioner or professional, of the risks and benefits of proposed
care; of treatment and treatment alternatives or treatment options and
to choose the alternative or option he or she prefers; and the right to
request, refuse, and/or discontinue treatment. We also proposed and are
finalizing provisions related to resident and resident representative
participation in the care planning process, which includes discussion
of resident goals of care and preferences. We would expect that the
discussions resulting from these rights would include discussions
tailored to the resident's specific situation, including, as
appropriate, discussions around the types of care that would be covered
by advance directives.
Comment: Some commenters supported CMS's proposal to strengthen
resident rights related to care planning, but believed the proposed
rule does not go far enough in creating truly person-centered planning
and saw no reason why the person-centered planning process in nursing
facilities should not be more consistent with the process mandated for
Medicaid-funded home and community-based services. Some commenters
recommended changes that would give more control to residents and
permit residents to play a greater role in directing their own care.
One commenter recommended specific revisions to the proposed regulatory
language, including incorporating the term `informed consent' and
emphasizing the resident's right to direct the care-planning process.
Response: Our proposed regulatory language establishes that each
resident has the right to be fully informed, in language that he or she
can understand, of his or her total health status, and to make many
types of decisions regarding his or her care. We believe that the
rights set out in this section comprise the essential elements of
informed consent, and are phrased in language that residents and their
representatives can easily understand.
As we noted in the preamble to the proposed rule, our proposals
support the guidance issued by HHS for implementing person-centered
planning and self-direction in home and community-based services
programs, as set forth in section 2402(a) of the Affordable Care Act.
We agree that the principles in that guidance regarding dignity and
self-direction apply equally to individuals who reside in a nursing
facility. Although nursing facilities are expressly not considered home
and community based settings (42 CFR 441.301(b)(1)(ii)), we have
incorporated many requirements that are supportive of the principles
reflected in the process mandated for Medicaid-funded home and
community-based services. We refer readers to our discussion of Sec.
483.21 regarding comprehensive person-centered care planning.
Choice of Attending Physician
Comment: Many commenters were concerned about facilities'
requirement or ability to establish credentialing requirements for
physicians. Commenters supported the right of residents to choose their
own attending physicians and to require facilities to protect and
promote that right. One commenter specifically supported changes
designed to ensure that residents are the driving force in their care,
so they can make choices that preserve their dignity, reflect their
preferences, and support their independence. Nevertheless, the
commenter was concerned by the lack of clarity around what is meant by
the ``professional credentialing requirements of the facility,'' which
is not otherwise defined in existing regulations. The commenter was
concerned that leaving this level of flexibility to facilities could
allow facilities inclined to not accept residents' choices with a
potentially fairly easy way to undermine this right, and urges CMS to
make clear that credentialing requirements cannot be used for the
purpose of denying a resident's right to choose their own physician
without good cause and/or right of appeal. The commenter requested
clarification about how this right would be maintained when residents
are in facilities that have closed medical staff models or facilities
that employ their own physicians. The commenter also noted that
credentialing itself does nothing to ensure adequate performance or
competent care so they urge CMS to ensure that quality programs
incorporate physician performance indicators and measures.
Another commenter urged CMS to confirm that this requirement
applies to the attending physician only and not to a covering physician
since that list can be extremely long and may change frequently. To the
extent that CMS would apply this requirement to covering physicians,
this would likely result in the unintended consequences of significant
on-call coverage problems as well as potentially discouraging
physicians from caring for SNF residents at a time when the agency is
striving for greater and more frequent physician involvement in SNF
care.
The commenter also pointed out that verification of professional
credentialing requirements can take time which may result in a
resident's physician being unable to serve as the attending physician
upon admission. Thus, the resident would be under the care of another
``credentialed'' attending physician until their physician completes
the facility's credentialing process. This switching of physicians is
not a best practice and may result in resident's experiencing adverse
events, as such attending physician may not be familiar with the
resident. The commenter recommended amending Sec. 483.10(c) to read:
``Choice of attending physician. The resident has the right to choose
his or her attending physician. (1) The facility must develop its own
credentialing process that does not require primary source
verification, which is typically conducted by state licensure entities
or the process for conveying hospital admitting privileges or managed
care certification. (2) The physician must be licensed to practice, and
(3) The physician must meet the professional credentialing requirements
of the facility within a timely manner
[[Page 68714]]
following the resident's admission to the facility.''
Yet another commenter recommended additional wording in order to
support the role of the medical director in ensuring practitioner
accountability for improved performance. The commenter stated that
credentialing refers only to background, education, training,
licensing, etc. Just requiring credentialing is not enough to ensure
adequate physician performance (for example, timely visits and
competent care). Addressing the challenges of medical care requires
holding people accountable for their performance and practice, not just
their credentials. The commenter suggested that we modify the
requirement to read: ``(c) Choice of attending physician. The resident
has the right to choose his or her attending physician. (1) The
physician must be licensed to practice, and (2) The physician must meet
the professional credentialing, practice, and performance requirements
of the facility.''
Other commenters recommended that CMS delete the credentialing
requirement entirely. The commenters stated that CMS proposes, without
explanation, to limit residents' free choice of physician to physicians
who meet their facilities' credentialing requirements and that the
commenters do not see a need for such a requirement. Further, one
commenter is concerned that the proposal does not provide any standards
for credentialing. The commenter stated that the public policy concerns
about physicians have always been the lack of appropriate medical care
in LTC facilities and how few physicians actually provide care to
residents and that the new credentialing requirement would not improve
the medical care of residents and could further reduce the number of
qualified physicians providing care to residents. One commenter stated
that, if the intent of the requirement is to improve the care provided
by attending physicians, CMS should pull stakeholders together to
determine how that could best be done and assess whether credentialing
would accomplish that goal. If the intent is to remove a physician of
the resident's choosing who is failing to fulfill a given requirement
(for example, frequency of physician visits, unnecessary drugs), the
current interpretive guidelines that outline such a process could be
retained (``the facility will have the right, after informing the
resident, to seek alternate physician participation to assure provision
of appropriate and adequate care and treatment''). The commenter
further states that the proposed requirement is contrary to federal law
at section 1819(c)(1)(A)(i) of the Act, which gives residents an
unfettered right to choose their physician. The commenter stated that
they oppose the proposed requirement as it is written and recommends it
be deleted.
Response: Based on commenter concerns, we have withdrawn the
proposed requirement related to physician credentialing. We are
finalizing the requirements that the physician must be licensed to
practice and must meet applicable regulatory requirements as well as
the requirement that, in the event that it becomes necessary for a
facility to seek alternate physician participation, the facility must
discuss this with the resident and honor the resident's selection of a
new attending physician.
Comment: Some commenters suggested that the resident's right to
select his or her attending physician was a new right and stated that
this could be burdensome and problematic.
Response: The right of a resident to choose his or her attending
physician is not new. It is in current regulations and is a statutory
requirement at both sections 1819(c)(1)(A)(i) and 1919(c)(1)(A)(i) of
the Act. All facilities should already be in compliance with this
requirement. We proposed requirements to ensure that physicians chosen
by resident complied with requirements for licensing and credentialing.
As a result of public comments, we are withdrawing our proposal
regarding credentialing. Please see our previous response on this
issue.
Comment: One commenter stated that the requirement to honor a
resident's preference regarding a physician must be related to the
physician's responsibility to practice appropriately and provide
quality care and that the failure to hold physicians to this standard
has major adverse consequences for long-term and post-acute care
residents/patients. The commenter suggests adding the word ``relevant''
to emphasize that the choice needs to consider the physician's
performance and practice as well as other factors.
Response: We have revised these requirements to state that the
physician must be licensed to practice and must meet applicable
regulatory requirements as well as a requirement that, in the event
that it becomes necessary for a facility to seek alternate physician
participation, the facility must discuss this with the resident and
honor the resident's selection of a new attending physician. We do not
agree that the requested revision is necessary and defer additional
specificity to sub-regulatory guidance.
Comment: A commenter is concerned that proposed revisions relating
to choice of physician in proposed Sec. 483.10(c)(2) and (3) and
proposed Sec. 483.11(c)(2) conflict.
Response: We have withdrawn proposed Sec. 483.10(c)(2) and have
co-located the provisions related to choice of physician in Sec.
483.10(d).
Respect and Dignity
Comment: A few commenters are concerned that the proposed rules
require facilities to allow residents to use their personal belongings,
but do not impose any obligations on facilities to assure the security
of residents' property from loss or theft. These commenters recommend
that CMS add additional requirements relating to the protection of
residents' belongings. Others stated that CMS should specify that the
use of person possession must meet fire code.
Response: Our proposed rule requires that a facility provide to a
resident a safe, clean, comfortable, and homelike environment, allowing
the resident to use his or her personal belongings to the extent
possible. A safe, home-like environment includes the security of the
residents' personal belongings. Therefore, in response to commenters'
suggestions, we have added language at proposed paragraph (j), safe
environment, finalized at Sec. 483.10(i) stating that the facility
shall exercise reasonable care for the protection of the resident's
property from loss or theft. We defer additional detail to interpretive
guidance. We agree that the use of personal possessions must comply
with fire safety. We note that we require that such use must not
infringe upon the safety of other residents. Furthermore, facilities
are required to comply with requirements related to Life Safety Code,
which are located at Sec. 483.90(a).
Comment: Commenters both supported and opposed our proposed changes
to visitation requirements. One commenter strongly supports the
language requiring that the ``facility'' provide immediate access to a
resident by immediate family member and other relatives of the
resident, and by others who are visiting with the consent of the
resident, subject to the resident's right to deny or withdraw consent
at any time. The commenter noted that this was included in the 2009
interpretive guidelines but having it in the regulations makes it an
even stronger requirement. One commenter strongly supports changes to
expand the rights of residents related to self-determination, to enable
immediate access to the resident by the resident representative,
[[Page 68715]]
and the requirement that facilities must have written policies and
procedures regarding visitation rights of residents. The commenter
further supports providing residents with more flexibility around when
they receive visitors and who may visit. Some commenters support
proposed visitation provisions that enable residents to receive
visitors of the resident's choosing, at the time of the resident's
choosing, stating that this is an essential element of self-
determination and, since the facility is the resident's home, residents
should have the same 24-hour access to visitors as those who live in
the community. Some commenters felt that residents don't want visitors
late at night and prefer that the doors are locked. These commenters
felt that our proposal unreasonably imposed visitors upon residents.
Many commenters expressed safety concerns with regard to open
visitation. Some commenters stated that having unexpected visitors
entering the facility at any time of day or night is unreasonable,
disruptive, and potentially dangerous, but suggested that pre-arranged
visits during ``off-hours'' could be accommodated and felt that, in
order for a facility to provide a safe and secure environment for all
patients and residents, there must be reasonable parameters applied to
this visiting provision. One commenter suggested establishing specific
time frames. Another commenter stated that their facility used a
security code to ensure that staff knows when a visitor is in the
facility. Some commenters stated that it is important that residents,
visitors and staff understand that visitation privileges does not
include a visitor living in the facility. Another concern is visitors
who are extremely boisterous, confrontational, under the influence of
drugs or alcohol. One commenter stated that a center must have the
ability to protect staff and residents from this disruptive behavior.
Other commenters noted that the rights of other facility residents must
considered in an ``open visitation'' policy. One commenter highlighted
important distinctions between hospitals and LTC facilities that should
be considered, including concerns that LTC facilities do not employ
distinct security personnel, or, if they do employ security personnel,
they are typically not present around the clock. The commenter stated
that it is more common for a LTC facility to have a receptionist at the
main entrance who welcomes and guides visitors and that reception staff
are present until early evening hours. The commenter stated that around
the clock visitation would require increased staffing, at a minimum,
which did not seem to be included in CMS' estimate of costs per
facility for implementation of these rules. Commenters noted that,
currently, facilities accommodate visitors at any time when a request
is made or the clinical situation of the resident is such that the
presence of visitors is essential. This provides everyone involved with
the time to prepare and to accommodate everyone's needs. Mandatory
``open visitation'' in what is both a home and a health care facility
means there will be more unanticipated visitors, and this could lead to
facility resources being diverted to quickly arrange for an appropriate
visiting environment for all involved, as opposed to attending to other
needs. The commenter urges CMS to clarify this section of the proposed
rule to ensure that facilities maintain the ability to limit
visitations if those limitations are based on clinical or safety
considerations that are outlined in the facility's policies and
procedures and shared with each resident.
One commenter expressed concern about facilities establishing their
own policies and procedures for visitation. For example, the commenter
suggested that rather than allowing a facility to make its own
decisions about restricting visits in the event of an infectious
disease, the commenter suggested instead that the facility should
follow CDC guidelines, which are evidence-based. The commenter also
expressed a concern about permitting 24-hour visitation, stating that
24-hour visitation is already allowed but questions about 24-hour
visitation still arise and many facilities still post signs indicating
only specific hours for visitation. The commenter recommends that the
regulations clarify this point.
Some commenters felt that the regulatory language impermissibly
limited visits to residents from CMS, the State Survey Agency, family
members and was concerned that CMS proposed to redefine access and
visitation rights, currently at Sec. 483.10(j), as a subcategory under
``self-determination,'' both for residents' rights (Sec. 483.10) and
facility responsibilities (Sec. 483.11), with some language only
included in proposed Sec. 483.11. Some commenters object to the
proposed language that would make visits from other visitors subject to
reasonable ``clinical and safety restrictions'' and allow the facility
to create written policies and procedures restricting resident access
to visitors for clinical or safety reasons. One commenter stated that
these requirements would gut resident visitation rights by giving
facilities complete latitude to create whatever policies they want.
Other commenters were concerned that proposed language erodes resident
visitation rights by placing restrictions on visits that go beyond what
is permitted under the Nursing Home Reform Law. Some commenters
recommended that CMS delete proposed Sec. 483.11(d)(2) in its entirety
as inconsistent with the requirements of the Nursing Home Reform Law.
One commenter notes that relatives are not ``subject to reasonable
clinical and safety restrictions'' in the way ``others who are visiting
with a resident'' are and recommended that CMS delete all references to
``clinically necessary or reasonable restriction or limitation or
safety restriction or limitation'' and that the facility policies and
procedures clearly state that residents have the right to 24-hour
visitation by anyone they choose. Another commenter stated that
sometimes the facility needs to protect the resident against certain
visitors.
Response: As noted above, several commenters suggested that our
proposed provisions related to visitation were in conflict with
statutory requirements. We have reviewed and revised this section to
eliminate any confusion. Sections 1819 and 1919 of the Act establish
specific requirements regarding access and visitation for residents of
long term care facilities. Specifically, the statute requires that a
facility permit immediate access to any resident by any representative
of the Secretary, by any representative of the state, by an ombudsman
described in paragraph (2)(B)(iii)(II), or by the resident's individual
physician; (B) permit immediate access to a resident, subject to the
resident's right to deny or withdraw consent at any time, by immediate
family or other relatives of the resident; (C) permit immediate access
to a resident, subject to reasonable restrictions and the resident's
right to deny or withdraw consent at any time, by others who are
visiting with the consent of the resident; (D) permit reasonable access
to a resident by any entity or individual that provides health, social,
legal, or other services to the resident, subject to the resident's
right to deny or withdraw consent at any time; and (E) permit
representatives of the State ombudsman (described in paragraph
(2)(B)(iii)(II)), with the permission of the resident (or the
resident's legal representative) and consistent with state law, to
examine a resident's clinical records. Our regulations are intended to
be fully compliant with these statutory requirements. We have revised
the
[[Page 68716]]
language related to the resident's right to receive visitors to clarify
that restrictions on visitation apply only to those categories of
visitors where such restriction is permitted by statute. As noted
earlier, in order to be responsive to public comments, we have revised
Sec. 483.10 and Sec. 483.11 into a single regulatory section, so that
all of the provisions relating to visitation are now located at Sec.
483.10(f).
We note that, in the proposed rule, in addition to the statutorily
mandated individuals (any representative of the Secretary, by any
representative of the state, by an ombudsman described in paragraph
(2)(B)(iii)(II), or by the resident's individual physician) we expanded
the individuals who must be provided immediate access to the resident
to include the resident's representative as well as any representative
of the protection and advocacy systems, as designated by the state, and
as established under the Developmental Disabilities Assistance and Bill
of Rights Act of 2000 (Pub. L. 106-402, codified at 42 U.S.C. 15001 et
seq.), and any representative of the agency responsible for the
protection and advocacy system for individuals with a mental disorder
established under the Protection and Advocacy for Mentally Ill
Individuals Act of 2000 (Pub. L. 99-319, codified at 42 U.S.C. 10801 et
seq.) as we believe that immediate access to a resident by these
entities is important to the health and safety of a resident.
With respect to statutory language regarding reasonable
restrictions and reasonable access, we proposed to add the caveat that
those restrictions or limitations on access must be based on clinical
or safety concerns. Furthermore, such restrictions and the rationale
for such restrictions must be included in a facility policy on
visitation that is consistent with the regulatory requirements. We
believe limiting the bases for restrictions to reasons of health (that
is, clinical concerns) and safety as well as requiring that the
facility have their procedures and restrictions, including rationale,
included in written procedures are useful in identifying and preventing
inappropriate restrictions on visitation. We note that these
limitations apply only to ``others who are visiting with the consent of
the resident,'' based on the statute's language regarding ``reasonable
restrictions'' and to ``any entity or individual that provides health,
social, legal, or other services to the resident,'' based on the
statute's language requiring ``reasonable access.'' As noted above, we
believe that ``reasonable restrictions'' as well as ``reasonable
access'' should only be limited based on clinical or safety concerns,
such as those commenters identified. Commenters identified a number of
safety restrictions that may be imposed by facilities. These
restrictions protect the security of all the facility's residents, and
include requirements such as keeping the facility locked at night;
visitors making prior arrangements for late night access, denying
access or providing limited and supervised access to a visitor if that
individual has been found to be abusing, exploiting, or coercing a
resident; denying access to a visitor who has been found to have been
committing criminal acts such as theft; or denying access to visitors
who are inebriated and disruptive. In addition, we agree that clinical
restrictions in order to prevent the spread of communicable disease are
appropriate.
With regard to ``imposing'' visitors upon residents, we have,
consistent with the statute, included language that defers to a
resident's choice when allowing visitors. Generally, residents do not
have to have visitors unless they choose to have visitors.
Comment: One commenter objects to the word ``visitation'' as it can
be defined as ``an official or formal visit, a disaster or difficulty
regarded as a divine punishment. . .'' and recommends changing it to
``visit'' or ``visiting,'' which is not the same thing as
``visitation.''
Response: We appreciate the commenter's suggestion; however decline
to make this change. We acknowledge that there are multiple definitions
of the term ``visitation,'' including, perhaps most simply, as ``the
act of visiting,'' which is applicable to the context in which we use
it. Further, the term ``visitation'' is in the statute, specifically at
sections 1819(c)(3) and 1919(c)(3) of the Act, to establish the
specific right upon which this regulatory right is premised and in
other regulations addressing similar subject matter, such as the
hospital and critical access hospital conditions of participation.
Comment: Some commenters expressed concerns about provisions
relating to resident and family groups. One commenter suggested that we
expand those who have a right to participate to include ``friends of
the resident who have his or her permission''. Another commenter
recommended that it be clarified that it is also the right of family
members or resident representatives themselves as well as other persons
interested in the welfare of the resident or residents to participate
in family groups. The commenter supports the intent of the proposed
language that requires nursing facilities to provide a resident or
family group, if one exists with private space, but believes that the
facility should be prohibited from impeding and should be required to
facilitate the formation or continued existence of such groups. The
commenter believes that nursing facilities should be required to, with
the approval of the groups, take reasonable steps to notify, through
conspicuous postings, and other means, residents and family members of
the groups and of upcoming meetings in a timely manner. The commenter
supports our clarification that the designated staff person who
participates in a resident or family group must be approved by the
resident or family group and by the facility, but suggests CMS be clear
that the designated staff person does not necessarily have to be the
same person for both the resident group and the family group. The
commenter also suggested CMS clarify that resident and family groups
can convene without a facility staff member present and may convene
off-site. Commenters support the proposal that the grievances and
recommendations of the groups must be addressed, and if not
implemented, the rationale for this must be provided to the group but
recommend that we require a written response to the group within a
specific timeframe.
Response: CMS fully supports family and caregiver engagement.
However, we believe that the right of family members to participate in
a family group is a result of and subordinate to the resident's right
in this instance. We can envision circumstances where a resident would
not want and it would not be appropriate to allow a family member, such
as an estranged spouse or an abusive relative, to participate in a
family group as a result of a residents' presence in a facility.
Therefore, we have retained this language as written. We proposed to
expand this right to include resident representatives in order to
ensure that individuals of the resident's choosing, whether a familial
relation or not, can also participate in these groups. We believe this
supports the resident's ability to choose who they consider `family.'
We also provide that visitors may attend at the groups' request. We
decline to give ``friends'' or ``other persons interested in the
welfare of the resident or residents'' a right to participate
independently of an invitation from the group, as this additional
participation should be determined by the group rather than imposed
upon it. Other provisions require that facilities make residents aware
of contact information for State
[[Page 68717]]
and local advocacy organizations, such as the State Long-Term Care
Ombudsman program, and the Aging and Disability Resource Center or
other program in the No Wrong Door System, should residents wish to
invite such entities to a resident- or family group. In addition,
nothing precludes an individual interested in the welfare of the
resident or residents from requesting such an invitation. With regard
to group meetings outside of the facility, nothing in these
requirements precludes a resident or family group from meeting outside
the facility and the resident has a right to interact with members of
the community and participate in community activities both inside and
outside the facility. We agree that facilities should take reasonable
steps to ensure that residents and family members are aware of upcoming
group meetings and have revised accordingly, finalizing this provision
at Sec. 483.10(f)(5)(i).
We defer to sub-regulatory guidance further discussion of the
designated staff person(s) assigned to provide resident or family
groups with assistance and response. We note that we already state that
staff or visitors may attend group meetings at the group's invitation.
We require that facilities must respond to a grievance voiced by a
resident or family group with a response and a corresponding rationale.
We expect that such response would generally be a written response, but
might also take another form. For example, if a resident group requests
a specific action and the facility can show that the action has been
taken, there may be no need for a written response. We have clarified
that the facility response must be timely, but decline at this time to
specify a time frame, given the potential variation in such grievances
and recommendations.
We require the facility to provide a notice of rights and services
to the resident prior to or upon admission and during the resident's
stay, both orally and in writing in a language that the resident
understands. This includes all of his or her rights and all rules and
regulations governing resident conduct and responsibilities during the
stay in the facility. We further require notification if those rights
change. These rights include the right of the resident to organize and
participate in resident groups.
Comment: One commenter recommended that CMS explicitly prohibit the
facility from taking any action that would discourage the formation
and/or activities of resident and family groups, and that CMS require
the facility to (1) provide the resident or family group access to a
bulletin board or other public notice space for their exclusive use to
communicate with other residents, friends, and family, and (2) provide,
at the group's request, a roster of the group members, including name
and contact information, excluding information of those member who have
declined such inclusion in writing.
Response: We appreciate the commenter's suggestion, but are
concerned that these requirements are overly prescriptive. Furthermore,
we believe that the underlying concerns can be addressed either by
individuals through the grievance process or by the resident and family
groups' facility representative and complaints/recommendations made by
the group to the facility.
Comment: One commenter stated that both residents and families need
to be able to freely raise and discuss issues in their respective
groups and the presence of one or more residents at a family group
would likely prevent at least some family members from speaking out
candidly or at all. The commenter stated that this undermines the
purpose of such a group and suggests revisions to these provisions to
address participation across groups.
Response: The requirements as written provide for both resident
groups and family groups. We have clarified that staff, visitors, or
other guests may attend the resident group or family group at the
respective group's invitation. We understand the commenter's concern
and believe that family groups can determine how to best manage this
issue. We would not prohibit residents from participating in family
groups. We defer additional discussion to sub-regulatory guidance.
Comment: Some commenters were concerned about the protection of
resident personal funds and recommend additional requirements. One
commenter supported CMS efforts to pull provisions related to the
protection of residents' funds together into one place for clarity, to
update those requirements and to add limitations on the kinds of things
for which facilities may charge residents. Suggestions to strengthen
these requirements included requiring that facilities periodically
review accounts of resident funds for suspicious withdrawals, requiring
administrators to take training in protecting resident accounts, and
providing the residents or resident representative monthly accounting
statements so that any changes are noticed as quickly as possible.
Another commenter expressed concern that the proposed rules under
residents' rights as they relate to protection of resident funds are
extremely limited, and the other specific current rights at Sec.
483.10(c) are shifted solely to the proposed Sec. 483.11(d)(5). The
commenter stated that residents' rights provisions need to include
sufficient detail to ensure that residents and their families and
representatives know what the rights are. The commenter suggested that
we restore all of the language at current Sec. 483.10(c) to proposed
Sec. 483.10(e)(9) and restore an independent title ``Protection of
resident funds'', stating that resident funds should not be a
subcategory of the term ``self-determination.''
Response: We thank the commenters. As addressed earlier in this
section, we have consolidated proposed Sec. 483.10 and Sec. 483.11,
which addresses commenter concerns about residents rights containing
sufficient detail to ensure that resident know both their rights and
the facility's responsibility to support those rights. We maintain that
it is appropriate to retain all of this information in the section
relating to the resident's right to manage his or her financial
affairs, and therefore have not restored an independent title of
``protection of resident funds.'' Under current requirements, the
facility must hold, safeguard, manage, and account for the personal
funds of the resident deposited with the facility, including
establishing and maintaining a system that assures a full and complete
and separate accounting, according to generally accepted accounting
principles, of each resident's personal funds entrusted to the facility
on the resident's behalf and providing the individual financial record
through a quarterly statement as well as on request. Current
interpretive guidance establishes that ``hold, safeguard, manage and
account for'' means that the facility must act as fiduciary of the
resident's funds, report at least quarterly on the status of these
funds in a clear and understandable manner, and includes money that an
individual gives to the facility for the sake of providing a resident
with a non-covered service. We have revised paragraph Sec.
483.10(f)(10)(i), as finalized, to state that the facility must act as
a fiduciary of a resident's funds. According to Cornell University Law
School, a fiduciary duty is a legal duty to act solely in another
party's interests. Parties owing this duty are called fiduciaries. The
individuals to whom they owe a duty are called principals. Fiduciaries
may not profit from their relationship with their principals unless
they have the principals' express
[[Page 68718]]
informed consent. They also have a duty to avoid any conflicts of
interest between themselves and their principals or between their
principals and the fiduciaries' other clients. A fiduciary duty is the
strictest duty of care recognized by the U.S. legal system. (see
https://www.law.cornell.edu/wex/fiduciary_duty)
Although current sub-regulatory guidance already identifies the
facilities responsibility for resident accounts as a fiduciary
responsibility, we would strengthen this expectation by spelling it out
in regulation. We believe that this addresses the commenters concern
but allows for some flexibility in implementation. We defer additional
specificity to sub-regulatory guidance.
Comment: One commenter recommended stricter oversight of resident
funds, including the use of auditors with an accounting background.
Response: We have strengthened the requirements related to resident
funds, as discussed in the previous response. Establishing requirements
that facilities hire independent auditors to audit resident accounts is
outside the scope of the current rulemaking, but we will keep this
suggestion in mind for future occasions.
Comment: Several commenters supported revisions to a resident's
choice of roommate. One commenter strongly supported new language that
states: ``The right to share a room with her or his roommate of choice
when practicable, when both residents live in the same home and both
residents consent to the arrangement,'' which could include same sex or
opposite sex couples or individuals choosing to share a room.
Response: We thank the commenter for their support. We agree that
choice of roommate is significant to a resident's quality of life and
an important aspect of treating a resident with respect and dignity.
Comment: Some commenters objected to our proposed provision
regarding choice of roommate. One commenter expressed concern that the
right of one resident to have a roommate of choice could violate the
rights of an existing roommate. Other commenters suggested that this
meant that a resident who didn't want a roommate would have to be
provided a private room.
Response: Section 483.10(e)(5) states that the resident has the
right to share a room with his or her roommate of choice when
practicable, when both residents live in the same facility and both
residents consent to the arrangement. It does not require the provision
of a private room. Furthermore, we have included the phrase ``when
practicable'', as we realize that such arrangements may not always be
possible, or may require some delay in order to accommodate. For
example, such a move may require waiting until a room is available for
both residents who want to be roommates to move into. We would not
expect a facility to accommodate such a request when doing so would
violate the rights of another resident.
Comment: Some commenters recommended that we strengthen language
related to involuntary changes in room or roommate. One requested that
we better define notice. Another suggested that we qualify a resident's
right to refuse a transfer to not apply when the resident's medical
needs can't be met. Another commenter stated that the impact of moving
residents against their will is well documented, and can lead to both
psychosocial and physical harm and suggests that, given the potential
risk of any move that is not the resident's choice, such moves should
only be permitted for certain reasons and written notice should be
provided within a set timeframe. The commenter noted that several
states, including Connecticut, Colorado, Texas and Indiana, require
written notice when the facility is proposing to move a resident. The
commenter further stated that facilities should be required to prepare
a resident for a transfer in the same way as required for a transferred
or discharged. The commenter suggested that involuntary changes in room
only be allowed if the transfer is necessary for medical reasons as
determined by the attending physician; or the transfer is necessary for
the welfare of the resident or other residents, and the resident must
be given notice, including the name, address, and telephone number of
the local and state long term care ombudsman and, if applicable, the
mailing address and telephone number of the agency responsible for the
protection and advocacy at least 5 business days before relocation. In
addition, the commenter suggested that the facility be required to
develop a relocation plan to orient and prepare the resident for the
move, including taking the resident to see his or her new room and unit
and meeting staff who will be assigned to him or her.
Response: We agree that, absent extenuating circumstances, many of
the commenters' suggestions make sense. Involuntary transfers should
not be undertaken solely for the convenience of the staff. However,
there are circumstances, generally involving safety, where advance
notice and preparation may not be appropriate. Examples could include
when one roommate is diagnosed with a communicable illness or when a
move is necessary for the safety of either resident in a room, even if
one of the roommates disagrees. We have revised Sec. 483.10(e)(6), to
require written notice, including the reason for the change, and
paragraph (e)(7), to give the resident the right to refuse a transfer
that is made solely for the convenience of the staff. We will consider
requirements for a specific timeframe and preparation for a room change
for inclusion in future rule-making.
Comment: One commenter requested that we clarify our use of the
term ``eviction'' as opposed to ``discharge''.
Response: The term ``eviction'' is used to reflect an involuntary
discharge from a place of residence. To ``evict'' is to make a person
leave a place (http://www.merriam-webster.com/dictionary/evict). Not
all residents consider the LTC facility his or her place of residence,
but for those who do, an involuntary discharge is equivalent to an
eviction.
Self-Determination
Comment: Some commenters were pleased to see that the proposed
regulations include the resident's right to choose schedules. One
commenter suggested we require that these choices are communicated to
staff who are assigned using staffing practices that maximize staff's
ability to fulfill the resident's choices and that we further state
that residents must be able to choose from a range of activities that
correspond to their interests. Other commenters expressed concern that
they would be unable to accommodate every request every time and would
be penalized as a result. Some commenters pointed out that these rights
must be balanced with other residents' rights.
Response: While we considered these suggestions, we will defer to
interpretive guidance for more detailed discussion of how a facility
can meet the requirement that residents have the right to choose
activities and schedules.
Comment: One commenter stated that, with regard to proposed Sec.
483.10(e)(2), not all patients/residents are realistically able to
participate in activities outside the facility. The commenter suggests
that we amend this paragraph to by adding ``as appropriate based on the
resident's functional capability.'' Other commenters suggest that
residents should have free access both inside and outside of the
facility.
Response: Some residents may not, realistically, be able to
participate in activities outside the facility. However, many may be
able to do so, particularly
[[Page 68719]]
with family or other assistance or planning. The facility has a
responsibility to promote and facilitate resident self-determination,
rather than act as a hindrance or barrier. At the same time, we
recognize that there may be safety and security concerns with
unfettered access to outside spaces and in and out of the facility.
These competing interests must be balanced, taking into consideration
the needs and preferences of residents in the facility.
Comment: One commenter stated that, with regard to proposed Sec.
483.10(e)(5), not all facilities have family groups and in those
centers that provide care for post-acute, short-stay patients, it is
seldom that these individuals and their families have interest in
participating in a family group. The commenter suggests we add the
qualifier ``if any.''
Response: There is no requirement for a facility to have a resident
or family group if the residents or their representatives do not want
one. However, if interest does exist, the facility should support the
formation of such a group, as required by this section. Adding ``if
available'' may imply that if such a group does not already exist, the
right to participate does not exist. This is not accurate.
Comment: One commenter is concerned that, as written, proposed
Sec. 483.10(e) could be interpreted to require that a facility
contract with any and all hospice providers, therapists/therapy
companies, etc. and conflicts with the proposed Sec. 483.10(c) Choice
of attending physician. The commenter recommends amending the provision
by adding ``consistent with Sec. 483.10(c) and other relevant
contracting requirements''
Response: We considered the commenters concern and added ``and
other applicable provisions of this Part'' to the provision.
Comment: Some commenters were concerned that the residents' right
to choose health care and providers of health care services consistent
with their interests, assessments, and plan of care would require
facilities contract with, utilize, or arrange for a health care
subcontractor that had not previously been contracted with or approved
by the facility. They were concerned that such entities might be on the
OIG's list of excluded individuals or entities, might have failed
background checks, or might be operating outside of their legally
permissible scope of service. They also suggested that such entities
might not be not properly licensed or insured, might not meet the
quality standards of the facility, or could potentially create an
unsafe situation for the resident. The commenters further contend that
the facility must be able to control the expenses related to who
provides services due to bundled payments.
Response: Facilities cannot subcontract to health care entities
that are on the OIG's list of excluded individuals or entities, and
should not contract for any services with entities otherwise unsuitable
for providing services. However, residents should not be required to
accept services from providers to which they object, or entities that
impose unreasonable charges on the resident's personal funds. We would
expect facilities to work with residents to reach agreements.
Comment: One organization stated that they support CMS's proposal
``to clarify that the facility may not charge for special food and
meals ordered for a resident by a physician, physician assistant, nurse
practitioner, clinical nurse specialist, dietitian or other clinically
qualified nutrition professional.'' The commenter noted that client
satisfaction is critical and expressed support for the resident-
centered concept of care. The commenter further stated that many of
their members believe it is their duty to provide residents with
everything they need during their stay and that members report that
client satisfaction improves oral intake, nutritional status, quality
of life and well-being and is likely to result in fewer
hospitalizations. They suggested that comparable and reasonable
substitutions, as determined by the registered dietitian, should be
permitted. The commenter sought confirmation that the special food and
meals purchased for a resident must be in alignment with a required
specific diet order as a therapeutic diet in order for the items not to
be charged to the resident. In addition, they request guidance as to
whether facilities could require residents or their families to provide
their own special supplements or functional foods if the facilities did
not have them in their formularies.
Response: Facilities are required to provide the services and
activities to attain or maintain the highest practicable physical,
mental, and psychosocial well-being of each resident in accordance with
a written plan of care. If a special diet is included in a resident's
plan of care, the facility is obligated to provide it. For situations
in which special foods are requested without being part of the plan of
care, we defer the matter to sub-regulatory guidance.
Comment: Some commenters objected to the requirement that
facilities convey the resident's funds and a final accounting of those
funds to the resident or the resident's estate, within 30 days of
death, eviction, or discharge. Commenters stated that this time frame
is too short, that third-party payers do not pay the facility in a
timely manner and that an accurate accounting is likely to take longer.
Other commenters felt that the resident's funds should be returned more
quickly.
Response: The existing requirement for the final accounting and
return of funds is already 30 days in the event of death, and no
changes were proposed to this standard in the proposed rule. We are
therefore retaining this standard as proposed.
Information and Communication
Comment: One commenter stated that, since all facilities must
convey their MDS data electronically, all facilities have Internet
access and proposed language related to facility access and expense is
not needed and could be used to deny residents electronic access. The
commenter finds limits placed on resident access to electronic
communication problematic. Other commenters objected to the burden of
requiring an expanded electronic footprint.
Response: We disagree that our requirement that facilities convey
MDS data electronically means, consequently, that all facilities will
have Internet access that can be made available to residents. Some
facilities may utilize a vendor to submit MDS data and may not have
onsite Internet access. Other facilities may have Internet access, but
that access might not include capacity sufficient to accommodate
expanded user access. We did not propose to require facilities to
expand their Internet access. We are finalizing proposed Sec.
483.11(e)(13) at Sec. 483.10(g)(7).
Comment: Some commenters stated that, with regard to proposed Sec.
483.10(h)(2), it is important that whatever Internet research is being
done by residents is legal. For example, access to sites that promote
child pornography or other illegal activities must be limited.
Furthermore, providing absolute privacy for each resident wanting to
use email and video communication may require advance planning. For
example, if a facility has one room with several computer terminals
available for residents' use, privacy may require a resident to
schedule private use in advance, during which time no other resident
may use a terminal in that room. The commenter suggested we revise the
provision to read ``The resident has the right to have reasonable
access to and privacy in their use of electronic communications such as
email and video communications and
[[Page 68720]]
for Internet research. All such activities are limited to legal Web
sites/activities as determined by state and federal laws. If absolute
privacy is required, the facility may require advance scheduling of a
computer to assure such privacy.'' Some commenters asked if the
facility was required to ensure that communications were secure.
Response: We agree that use of the Internet, or any form of
communication, including the U.S. Postal service, must be in compliance
with other legal limitations and restrictions relating to those devices
or systems. We have added language to that effect at finalized Sec.
483.10(g)(9)(iii). We acknowledge that for devices provided for the
community, advance planning may be required. Further, one resident's
use of video communications must not infringe upon the rights of other
residents. These were considerations when we used the term ``reasonable
access.''
Comment: Several commenters were concerned that our proposal limits
the type of information that residents can access, including their
records. One commenter stated that CMS provides no rationale for
restricting residents' access solely to medical records other than to
conform the requirements to 45 CFR 164.524(c)(4) and stated that such
justification is not sufficient. Some commenters recommended that CMS
retain the current language. One commenter supported the expansion of
accessibility to information by the resident (proposed Sec.
483.11(e)), including the language stating ``that information is
provided to each resident in a form and manner the resident can access
and understand, including in an alternative format or in a language
that the resident can understand.'' The commenter supported the
requirement that facilities provide residents with access to medical
records in the form and format requested by the individual if they are
readily producible, and if not, then in written form or in another form
as agreed to by the individual and the facility. This requirement
builds on the existing requirements that such information be made
available within 24 hours, and upon oral and written request.
Reflecting the reality that many nursing facility residents cannot
access records electronically, the commenter appreciated that the
proposed rule leaves the decision to the resident as to whether to
access records electronically or in another ``readily producible''
format. One commenter suggested that retrieving electronic information
in a format that is user friendly is actually more difficult than non-
electronic information. Another commenter was concerned that our
proposal mandated that facilities be able to provide an electronic copy
of the medical record. One commenter suggested that access to a
person's own medical record should not be contingent on weekday
staffing and recommends striking the parenthetical statement,
``excluding weekends and holidays,'' as well as the requirement for
inspection prior to purchase of the medical record. One commenter
believed that CMS should clarify that a resident is entitled to his or
her complete set of medical records, and proposed that the definition
of ``medical records'' include all records concerning the resident
during the period of time the resident was in the nursing facility's
care. Without clarification, the commenter was concerned that nursing
facilities may self-define what records it considers to be ``medical
records'' for the purposes of responding to resident requests to the
exclusion of records related to outside consultations, financial
records, and other records that may be kept outside of the facility
medical records. Allowing nursing facilities this degree of flexibility
may undermine the resident's right to access his or her own records and
allow a nursing facility to conceal any deficient care provided to the
resident.
Some commenters were concerned that 2 working days advance notice
may not be adequate time depending upon the size of the records. One
commenter stated that this should be 30 days, consistent with HIPAA.
Other commenters suggested that there should be a definition of
``working day.'' These commenters suggested we amend proposed Sec.
483.10(f) (3)(ii) to read: ``After receipt of his or her medical
records for inspection, to purchase, a copy of the medical records or
any portions thereof (including in an electronic form or format when
such medical records are maintained electronically) upon request and 2
to 5 working days (working days defined as between 8 a.m. and 6 p.m.,
Monday through Friday) advance notice to the facility. Some commenters
recommended that residents have access to their records 24 hours a day,
7 days a week so that they can review records with family members at
any time, including weekends and holidays.
Response: We thank those commenters who supported our proposals. We
agree that flexibility, contingent upon the resident's ability to
access and understand the information, is important. It is not our
intent to reduce a resident's access to information. Although sections
1819(c)(1)(iv) and 1919(c)(1)(iv) of the Act only require access to
current clinical records, we agree that it is important that LTC
facility residents also have access to certain other records about
themselves that may be held by a long-term care facility, such as their
financial or social records. We have reviewed our proposals and
expanded the language which we are finalizing at Sec. 483.10(g)(2) and
at Sec. 483.10(h) to include both personal and medical records. We
acknowledged in the proposed rule that we were proposing changes
related to facilities providing access to and copies of medical records
in order to ensure consistency with HIPAA. Federal requirements and
expectations related to the privacy and confidentiality of patient
records, especially with regard to protected health information,
changed substantially with the enactment of HIPAA. Thus, aligning with
other statutory requirements that apply to long-term care facilities
was one aspect of updating the requirements for long-term care
facilities.
With regard to medical records, the resident has access to the
medical record itself and the right to access a copy of that record,
not a version of the medical record that has been revised to ensure the
resident's understanding. Summaries of medical records are addressed by
the privacy regulations at 45 CFR 164.524. We retain the access
limitations related to weekends and holidays based on statutory
requirements in section 1819(c)(1)(A)(iv) of the Act. We disagree that
48 hours is not sufficient time to provide a copy of the resident's
record. This is a long-standing standard and we did not propose to
change the time frame. Further, for those facilities using electronic
records, the electronic record may simplify the effort needed to print
or create an electronic copy of the record, depending on the specific
software system used by the facility. We do not mandate that facilities
be able to provide an electronic copy of the medical record, unless the
records are maintained in an electronic format and are readily
producible in that format. We also agree that, while residents or their
representatives may wish to do so, they should not be required to
inspect a record prior to purchasing it. Therefore, we have removed
this requirement at finalized Sec. 483.10(g)(2)(ii).
With regard to our use of the term ``medical record'', please see
our discussion of Sec. 483.70(i). As noted in that discussion, we
regard the terms ``medical record'' and ``clinical record'' as
synonymous. Section 1819(b)(6)(C) of the Act states that clinical
records on all residents include the plans of care and
[[Page 68721]]
the residents' assessments. We further note that for ``covered
entities'' as defined at 45 CFR 160.103, individuals have a right to
access protected health information in a ``designated record set.'' A
``designated record set'' is defined at 45 CFR 164.501 as a group of
records maintained by or for a covered entity that comprises the
medical records and billing records about individuals maintained by or
for a covered health care provider; enrollment, payment, claims
adjudication, and case or medical management record systems maintained
by or for a health plan; or other records that are used, in whole or in
part, by or for the covered entity to make decisions about individuals.
The term ``record'' means any item, collection, or grouping of
information that includes protected health information and is
maintained, collected, used, or disseminated by or for a covered
entity. Thus, individuals have a right to a broad array of health
information about themselves maintained by or for covered entities,
including: Medical records; billing and payment records; insurance
information; clinical laboratory test results; medical images, such as
X-rays; wellness and disease management program files; and clinical
case notes; among other information used to make decisions about
individuals. In responding to a request for access, a covered entity is
not, however, required to create new information, such as explanatory
materials or analyses that does not already exist in the designated
record set. A ``designated record set'' under HIPAA is not synonymous
with ``personal and medical records'' under these requirements.
However, as noted earlier, to the extent that HIPAA provides additional
rights to individuals (that is, residents, in the long-term care
context) beyond what is provided in this final rule, covered entities
and business associates must comply with the requirements in HIPAA to
ensure individuals are afforded these additional rights. As noted in a
separate response under this section, we expect that most, if not all,
long-term care facilities are covered entities who must comply with
HIPAA.
Comment: Some commenters thought that we were requiring facilities
to provide electronic copies of medical records and expressed concern
that this would require the purchase of new equipment and new staff to
manage the task.
Response: Proposed Sec. 483.10(f)(3)(i) specified that the
resident would have a right to receive medical records in the form and
format requested if the requested records are readily producible in
such form and format. We are not requiring facilities to provide
records in an electronic format if the record is not maintained or
readily producible in an electronic format. We are finalizing this
provision at Sec. 483.10(g)(2)(i).
Comment: Several commenters object to our proposed standards for
the fees that facilities may charge for these records. Some oppose the
proposal to move from a community standard to a cost-based standard
under which the fee may include the cost of labor for copying the
requested health information, the supplies for creating the paper copy
or electronic media, and postage, which could be abused and could
inappropriately and unfairly impede a resident's access to his or her
own health records. The commenter recommends, at a minimum, a limit on
fees that can be charged, and to ensure that said fee includes any
labor charges (research fees, clerical fees, handling fees or related
costs). One commenter recommends the establishment of a ``hardship
exemption'' for low-income residents, allowing them to receive copies
of their records at no charge, perhaps upon providing an affidavit of
inability to pay or otherwise demonstrating an inability to pay fees.
Another commenter stated that there are a large number of residents who
use Medicaid who are required to contribute most of their income to
their care and are left with a small personal needs allowance, a
minimum of $25 per month, who cannot afford these larger amounts to get
copies of their records. The commenter suggests we restore the existing
regulatory language and include parallel language as a resident's
right. Commenters are concerned that the costs CMS proposes to allow,
specifically labor costs, in this section create an opportunity for a
nursing facility to create a financial burden and barrier to a
resident's right to receive a copy of their own medical record. Some
commenters recommend that facilities provide a copy of the medical
record on an annual basis at no charge to the resident, and otherwise,
costs should be limited to supplies and postage.
Response: We thank the commenters for their concern. Prior to
development of the proposed rule, we received input regarding the
definition of ``community standard'' and concern about exorbitant
charges for medical records. Commenters to the proposed rule have
suggested the community standard be set at the amount charged by a
local library, Post Office, or commercial copy center, or a set fee. We
considered these options. However, the cost that providers who are
subject to HIPAA (``covered entities'') may charge for medical records
is established by the HIPAA Privacy Rule at 45 CFR 164.524(c)(4). Our
proposal is consistent with that standard, which states that a facility
may charge a reasonable, cost-based fee that can include only cost of
copying, including supplies and labor, and postage, if the patient
requests that the copy be mailed. The fee may not include costs
associated with reviewing the request, searching for and retrieving the
requested records, and segregating or otherwise preparing the record
that is responsive to the request for copying. Given that long-term
care facilities are generally likely to be subject to HIPAA and we
require in Sec. 483.70 that facilities comply with other HHS
regulations, we believe that our policy here should be consistent with
the HIPAA Privacy rule at 45 CFR 164.524(c)(4). Therefore, we will
finalize our proposal at Sec. 483.10(g)(2)(ii) without change. We
again refer readers to recently released HHS guidance on individuals'
right under HIPAA to access their health information http://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html).
Comment: One commenter stated that they are pleased that CMS is
proposing to require facilities to make reports related to surveys,
certifications, complaint investigations, and plans of correction
available for individuals to review, and to post a notice of this
information's availability. Other information the commenter recommends
be made available to residents includes:
Results from independent resident/family caregiver
experience surveys (resident and family)--such as the Consumer
Assessment of Healthcare Providers and Systems (CAHPS) Nursing Home
Surveys;
Whether or not the facility provides special care services
and if so, the kinds of services provided;
Policies of the facility. For example, whether it has
family groups, allows pets, etc.; and
Information available in other languages, as appropriate.
CMS may wish to consider, where appropriate, whether the existing
standards that apply to medical records--that they be made available
within 24 hours and upon oral and written request should be extended to
the other types of information that are required to be made available
under proposed Sec. 483.11(e).
Response: We thank the commenter for their support. We considered
but are not, at this time, expanding the information which must be
provided to every resident. We note that facilities are required at
finalized Sec. 483.10(g)(16)
[[Page 68722]]
to provide a notice of rights and services to the resident prior to or
upon admission and are generally required at finalized Sec.
483.10(g)(3) to ensure that information is provided in a form and
manner that a resident can understand. As a result of comments
concerned that our proposal limited the information about themselves
that residents have access to, we have expanded our provisions relating
to medical records to include personal records, to the extent
applicable.
Comment: One commenter requested that we clarify in the regulations
that ``readily accessible'' means not having to ask a staff person for
access in order to review survey reports or plans of correction.
Another commenter stated that it was unreasonable to require the
availability of 3 years of reports.
Response: Section 1919(c)(8) of the Act requires that a nursing
facility must post in a place readily accessible to residents, and
family members and legal representatives of residents, the results of
the most recent survey of the facility. This requirement is not
premised upon a request. In contrast, section 1819(c)(1)(A)(ix) of the
Act imposes this same requirement premised upon a ``reasonable
request.'' We note that we generally deem all requests to be reasonable
unless the requestor demands unreasonable deadlines or more information
than is contained in the document. We have revised Sec. 483.10(g)(11)
to reflect the stricter standard imposed by the statutory language in
section 1919(c)(8) of the Act, which does not require a request. With
regard to 3 years of survey, certification, complaint investigation
reports, both sections 1819(d) and 1919(d) of the Act states that these
must be available ``upon request.'' We have revised this language, with
the addition of availability of any plan of correction in effect with
respect to the facility, as we proposed, to better reflect the
statutory requirements, including the requirements that the notice of
availability of such reports are prominent and accessible to the public
and shall not make available identifying information about complainants
or residents.
Comment: One commenter stated that providing every survey,
certification, and complaint report available ``in a form
understandable by residents'' is excessive and incomprehensively
burdensome.
Response: We understand that these reports are in specific formats
and may be lengthy, and that an unaltered copy of the report is the
expected document. Therefore, in finalized Sec. 483.10(g)(11) we have
eliminated the phrase as recommended, as well as added these reports to
the documents excepted from the requirement at finalized Sec.
483.10(g)(3) that the facility must ensure that information is provided
to each resident in a form and manner the resident can access and
understand, including in an alternative format or in a language that
the resident can understand.
Comment: One commenter supported many of the provisions in proposed
Sec. 483.11(e)(7) requiring that facilities immediately notify the
resident, consult with the resident's physician and notify the
resident's representative when there is a change in the resident's
condition, when treatment needs to be altered in a significant way, or
when the resident is to be transferred or discharged. One commenter
stated that physicians should be involved in managing significant
injures, and that it is reasonable to allow facilities to notify
physicians when the injury is significant enough to require a medical
assessment and/or intervention. The commenter suggested that each
facility have and use a protocol for physician notification and that
the staff make a preliminary assessment and then monitor for delayed
complications. Another commenter suggested that we add ``or change'' to
the provision ``a need to alter treatment significantly (that is, a
need to discontinue an existing form of treatment due to adverse
consequences, or to commence a new form of treatment).'' One commenter
was concerned that this requirement must be consistent with resident
representative state law, or the authority granted by the court in
instances of a resident who has been adjudged incompetent, or the
authority granted to the individual with the durable power of attorney
and another was concerned about the number of notifications that could
be required. Another commenter was concerned that the term
``immediately'' was not defined and an expectation on the part of CMS
that multiple individuals be notified simultaneously is unreasonable.
Response: We thank the commenters for their support. As suggested,
we have added ``or change'' to the parenthetical in finalized Sec.
483.10(g)(14)(i)(C). We believe that a protocol, as suggested by the
commenter, could be consistent with our proposal. As written, the
requirement is that a facility immediately inform the physician when
there is an accident that involves injury that has the potential to
require the physician's intervention. A protocol, as suggested, would
be a useful tool to help a facility objectively and consistently
determine when an injury has the potential to require physician
intervention. We noted in the preamble to the proposed rule that
effective communication among caregivers is helpful in improving
outcomes and quality of care. In addition, with have added ``consistent
with his or her authority'' in reference to notifying a resident
representative. With regard to the term ``immediately,'' we note that
this requirement is not new. We would expect facilities to make such
notifications without delay, and, in the case of a resident's death, in
accordance with state law.
Comment: A commenter supports proposed changes to information that
must be provided to residents, but states that there are differences
between proposed Sec. 483.10 and proposed Sec. 483.11 and recommends
that we add `exploitation' consistent with the incorporation of this
concept in other areas addressing abuse and neglect.
Response: In response to other comments we have combined Sec.
483.10 and Sec. 483.11. The information in question is now located in
Sec. 483.10(g)(4). We have also incorporated `exploitation' into that
provision, as suggested. Information includes both information that
must be included in the written description of legal rights and other
information of importance to the resident. For example, the written
description of legal rights must include a statement that the resident
may file a complaint with the State Survey Agency concerning any
suspected violation of state or federal nursing facility regulations,
including but not limited to resident abuse, neglect, exploitation,
misappropriation of resident property in the facility, non-compliance
with the advance directives requirements and requests for information
regarding returning to the community. In addition, the resident has a
right to receive, information and contact information for filing
grievances or complaints and the facility must post similar
information, in a form and manner accessible and understandable to
residents, and resident representatives.
Comment: One commenter notes that the term ``support person'' is
not defined and appears nowhere else in the proposed regulations.
Response: A patient's ``support person'' does not necessarily have
to be the resident's representative who is legally responsible for
making medical decisions on the resident's behalf. A support person
could be a family member, friend, or other individual who is there to
support the resident during the course of the stay. We refer readers to
our discussion of the meaning of
[[Page 68723]]
``support person'' in the preamble to the final rule, ``Medicare and
Medicaid Programs: Changes to the Hospital and Critical Access Hospital
Conditions of Participation To Ensure Visitation Rights for All
Patients'' (75 FR 70833, November 19, 2010).
Comment: Commenters recommended that the prohibition regarding
admission contracts conflicting with regulatory requirements apply to
all admission contracts, whether required by the facility or not.
Response: We agree and have modified final Sec. 483.10(g)(18)(v)
to refer to all admission contracts. We emphasize that no language in a
contract may permissibly require LTC facility residents or prospective
residents to waive any of the rights set out in this provision, and
that review of admissions contacts may be part of our facility surveys.
Comment: One commenter recommended that we require the facility to
post a list of the names, titles, dates of service and addresses
(mailing and email), and telephone number of the members of the
facility's governing body, the administrator, and the director of
nursing, stating that this would implement section 6106 of the
Affordable Care Act.
Response: We thank the commenter for their suggestion. Section 6106
of the ACA added section 1128I(g) to the Act, Affordable Care Act.
Section 1128I(g) pertains to the submission of staffing data by LTC
facilities, and specifies that the Secretary, after consulting with
certain stakeholders, require a facility to electronically submit to
the Secretary direct care staffing information based on payroll and
other verifiable and auditable data in a uniform format according to
specifications established by the Secretary in consultation with such
programs, groups, and parties. CMS finalized requirements implementing
section 6106 of the ACA on August 4, 2015 in the final rule ``Medicare
Program; Prospective Payment System and Consolidated Billing for
Skilled Nursing Facilities (SNFs) for FY 2016, SNF Value-Based
Purchasing Program, SNF Quality Reporting Program, and Staffing Data
Collection'' (80 FR 46390). That rule added a new Sec. 483.75(u)
``Mandatory submission of staffing information based on payroll data in
a uniform format''. Section 6106 of the ACA does not include reporting
requirements for management/ownership information.
Privacy and Confidentiality
Comment: Some commenters support our proposed changes to this
section.
Response: We thank the commenters for their support. This section
now includes language accommodating electronic communications, among
other changes. We believe this changes are important in updating the
requirements of participation for long-term care facilities.
Comment: One commenter recommended that CMS limit representatives
of the Office of the State Long-Term Care Ombudsman access to resident
records based on requirements established at 45 CFR 1327.11.
Response: We thank the comment for their suggestion. We note that
the Administration for Community Living (ACL) published a final rule
amending its regulations to reflect the creation of ACL in 2012 and
consolidate all of its regulations under a single subchapter (see 81 FR
35645, 35646, June 3, 2016). As a result, the regulations that the
commenter referred to are now found at 45 CFR 1324.11. We have reviewed
the language at 45 CFR 1324.11(e)(2), which sets forth requirements for
the State Long-Term Care Ombudsman or the State agency to establish
policies and procedures for timely access to facilities, residents, and
appropriate records. Proposed Sec. 483.10(f)(2) does not conflict with
the requirements at 45 CFR 1324.11(e)(2) and reflects the statutory
language found in sections 1819(c)(3)(C) and 1919(c)(3)(C) of the Act.
Therefore, proposed Sec. 483.10(f)(2) is finalized at Sec.
483.10(h)(3)(ii) without change.
Safe Environment
Comment: Some commenters supported our proposed changes to this
section.
Response: We thank the commenters for their support.
Comment: With respect to the resident's right to a safe, clean,
comfortable, homelike, environment, one commenter recommended amending
the requirement to state that the resident has a right to an equitable
balance of a safe, clean, comfortable, homelike environment, and a
right to receive treatment safely, as no one right should outweigh nor
compromise another right. Some commenters felt that we should use
language more reflective of the fact that the long-term care facility
is home for many residents. Some commenters recommended avoiding
institutional language and changing ``. . . homelike'' environment to
``. . . home''
Response: We thank the commenters for their suggestions. As noted
in the preamble to the proposed rule, long-term care facilities are
likely to serve multiple populations. Throughout this rule, CMS has
tried to maintain an appropriate balance reflecting these multiple
populations. While for many residents, the LTC facility is a home and
we have striven to make sure this fact is reflected in the regulations,
for others, the LTC facility is a temporary stay as they regain the
physical capacity to return to their home. Both of these populations
deserve high quality care in a safe, clean, comfortable, and homelike
environment. We agree that no single right outweighs another right and
sometimes this requires balance; however, we believe that residents can
and should live in a safe, clean, comfortable, and homelike environment
that is also provides safe treatment.
Comment: Some commenters expressed concern that residents could
receive contraband or harmful items through the mail and wanted to know
what rights the facility has with regard to monitoring for such items.
Response: The right of residents to receive unopened mail is not
new. We would expect facilities to already be in compliance with this
requirement and have processes in place to address situations where
resident rights and resident safety are of concern.
Comment: One commenter requested that we clarify under ``safe
environment'' that the physical layout of the facility should maximize
resident independence.
Response: We thank the commenter for their suggestion and have
revised the requirement, finalized at Sec. 483.10(i)(1)(i) to include
``resident independence.''
Comment: One commenter agreed that facility temperatures should not
be extreme, but suggested that CMS add a qualifier to the regulations
that would require Medicare and Medicaid-participating facilities to
adjust temperatures in different areas of the facility based on
resident needs and comfort and/or scientific evidence.
Response: We thank the commenter for their suggestion. We would
expect facilities to make adjustments, as suggested, within the
permissible range of 71 to 81 degrees Fahrenheit. We note that this is
a long-standing requirement on which we received very few comments. We
would want to seek specific public input on a specific proposal to
change this requirement before making such a change.
Grievances
Comment: Some commenters supported our proposals related to
grievances. One commenter commended CMS for significantly enhancing
residents' rights to voice grievances, stating that this emphasizes the
importance and seriousness of resident concerns. Another commenter
stated
[[Page 68724]]
that the ability to make a grievance and to have it taken seriously by
the facility is an important right and protection for residents. One
commenter was pleased to see that facilities must create a grievance
policy and appoint a grievance official. Another commenter stated that
they are pleased to see that this right has been expanded to give
residents the right to voice grievances without fear of discrimination
or reprisal. One commenter was pleased to see that CMS is proposing
that grievances be investigated and written decisions issued to
residents and urges CMS to include this information about grievances in
the Resident's Rights section as well. Another commenter was pleased
that CMS proposed that the official issue written grievance decisions,
and supports the proposed content of the decisions. One commenter
stated that it is very helpful to have a person specifically tasked
with handling grievances from beginning to end who is required to take
immediate action to prevent further potential violations, although this
should include any violations of state and federal requirements, not
just resident rights.
Some commenters recommended revisions to our proposal. Some
suggested we establish timeframes for resolution. One commenter
recommended that CMS delete all language from proposed Sec. 483.11(h)
regarding the grievance policy and incorporate the policy requirements
into Sec. 483.75, QAPI. Some commenters objected to the requirement
for a grievance official, stating this this is unnecessary and
burdensome. One commenter suggested that designating one individual
could hinder timely resolution.
Some commenters were concerned about the scope of actionable
grievances. Some commenters feel we have limited the scope of
grievances. One commenter stated that the proposed rules omits current
language ``including those with respect to the behavior of other
residents'' from resident rights, noting it is included in proposed
Sec. 483.11(h)(2) and recommends that CMS restore the full language of
Sec. 483.10(f)(2).'' Other commenters suggested that we broaden the
scope of actionable grievances. One commenter is concerned that the
proposed language does not state that the resident can file grievances
with the State Survey Agency and another recommends we add adult
protective services to the list of independent entities with which
grievances may be filed. Some commenters recommended that the
subsection be revised to require that facilities make information on
how to file a grievance available to the resident upon admission and
upon request and also give a copy of the grievance policy to every
resident. Some commenters suggested that there are other formats more
useful to a resident than a copy of the policy, such as a question and
answer document. One commenter suggested that the grievance official
should be responsible for protecting the complainant from retaliation,
since many residents will not speak up because they fear reprisal. One
commenter recommended that residents be given the room number in the
facility if the official is housed within the facility and a toll free
number if not, and be provided with information about where they can
turn within the facility organization if they are not satisfied with
the decision. The commenter also suggested that CMS require that the
grievance decision be provided to each resident in a form and manner
the resident can access and understand and that the grievance official
take corrective action in conjunction with the administrator and other
appropriate staff. One commenter suggested that the grievance policy
include the establishment of a grievance committee that would consist,
at a minimum, of the administrator of the facility or his or her
designee, a resident selected by the resident population of the
facility, the facility social worker, and the grievance official. The
commenter further suggested that the work of the grievance official
would be reviewed by the full committee so he or she is not operating
in a vacuum and there would be resident involvement in the process.
Some commenters were concerned about maintaining evidence related
to grievances for 3 years and felt that creating and maintaining such
files would be burdensome. Others were concerned about the potential
for these requirements to negatively influence surveyors and asked if
every complaint would be deemed a grievance. Another commenter
suggested that we specifically require that facilities maintain all
investigative documentation related to the grievance for three years.
This commenter also suggested that, with regard to reporting, we
reference federal law. Several commenters offered other specific
recommendations for regulatory language.
Response: We thank commenters for their support and their
suggestions. We agree that resident concerns should be taken seriously
and that the ability to voice a grievance is an important right and
protection for residents. The timeframes required to resolve a
grievance may depend largely on the issue associated with the grievance
and other situation-specific factors. We are not, at this time,
requiring prescriptive timeframes, and defer to guidance to suggest
what constitutes timely. The purpose of requiring the facility to have
a grievance official is to ensure that there is an individual who has
both the responsibility and authority for ensuring, through direct
action or coordination with others, that grievances are appropriately
managed and resolved. This person would be a resource for residents,
staff, and oversight entities. We expect that most facilities already
have a person or persons who serve this function, if not with the
specific title, and that the work of a grievance official would be
coordinated with the LTC facility administrator and the director of
nursing. It is not our expectation that every facility hire a new,
full-time individual to perform this function, but, instead, that every
facility have a designated individual to serve this function,
consistent with the needs of that facility. We do not agree that this
would hinder timely resolution of grievances.
Evidence demonstrating the results of all grievances for a period
of no less than 3 years provides a record of this work and can serve as
a valuable information resource for facilities. However, we do not
agree it is necessary to explicitly require that all investigation
documentation be retained for 3 years. Further, such evidence may be
maintained electronically, rather than utilizing physical storage
space. We defer additional specificity to sub-regulatory guidance.
Grievances may provide valuable input to a facilities QAPI program.
In fact, grievances are one likely source of data and feedback from
residents and resident representatives; however, we do not believe that
addressing grievances should be relegated solely to the QAPI program.
Depending on the size of the facility and the number or grievances
received, duties associated with grievances may only consume a small
portion of the individual's time. In very large facilities, or in
facilities with many grievances, more time may be required. Either way,
we maintain that it is important that all facilities have a designated
point of contact for grievances. While we agree that a grievance
official cannot and should not resolve grievances in a vacuum, we are
concerned that a grievance committee is not feasible for every
facility, and therefore are not requiring such a committee at this
time.
With regard to the scope of grievances, we have revised our
[[Page 68725]]
proposed requirement, finalizing it at Sec. 483.10(j), to state that
grievances include those with respect to care and treatment which has
been furnished as well as that which has not been furnished, the
behavior of staff and of other residents; and other concerns regarding
their LTC facility stay. We will finalize proposed requirements
regarding notifying resident individually or through postings in
prominent locations throughout the facility of the right to file
grievances orally (meaning spoken) or in writing; the right to file
grievances anonymously; the contact information of the grievance
official with whom a grievance can be filed, that is, his or her name,
business address (mailing and email) and business phone number; a
reasonable expected time frame for completing the review of the
grievance; the right to obtain a written decision regarding his or her
grievance; and the contact information of independent entities with
whom grievances may be filed, that is, the pertinent State agency,
Quality Improvement Organization, State Survey Agency and State Long-
Term Care Ombudsman program or protection and advocacy system. We also
finalize the requirement to provide a copy of the grievance policy to
the resident upon request. We agree that other formats may be useful to
the resident and could be used to provide information on how to file a
grievance available to the resident, but if the resident requests a
copy of the facility policy, it must be provided. The facility is
required, at final Sec. 483.10(g)(16) to provide a notice of rights
and services to the resident prior to or upon admission and during the
resident's stay; this includes the right to file a grievance. We have
added ``federal'' to Sec. 483.10(j)((4)(iv) so that it reads
``immediately reporting all alleged violations involving neglect,
abuse, including injuries of unknown source, and/or misappropriate of
resident property, by anyone furnishing services on behalf of the
provider; and as required by federal or state law.'' Requirements for
reporting suspicion of a crime are separately addressed in Sec.
483.12(b). We defer additional detailed information relating to
grievances to sub-regulatory guidance.
Contact With External Entity
Comment: One commenter felt that the requirement stating that
facilities must not prohibit or discourage a resident from
communicating with state and federal representatives was unnecessary.
Response: We disagree. It is imperative that residents and their
representatives feel free to discuss concerns, particularly safety and
quality of care concerns, with representatives of the state and federal
government, surveyors, ombudsmen, and representatives of the protection
and advocacy system.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
We have consolidated proposed Sec. 483.10 and proposed
Sec. 483.11 into a single section, Sec. 483.10, ``Resident rights''
and removed or updated all cross-references as appropriate.
We have replaced the term ``verbal'' with ``oral''
throughout this section.
Introductory language from proposed Sec. 483.10 and
proposed Sec. 482.11, as well as proposed Sec. 483.11(a)(2) are now
finalized in Sec. 483.10(a) ``Resident rights.''
Proposed Sec. 483.10(a)(1) through (5), and proposed
Sec. 483.11(a)(1), and (a)(3) through (5) have been consolidated into
final Sec. 483.10(b), ``Exercise of rights.''
We have revised proposed Sec. 483.10(a)(3), finalizing it
at Sec. 483.10(b)(3) and incorporating previously existing language
clarifying that the provision applies to residents who have not been
adjudged incompetent by a state court.
We have revised language from proposed Sec. 483.11(a)(4),
as consolidated in finalized Sec. 483.10(b)(7)(i), to clarify that, in
the case of a limited guardianship, a facility does not defer all
decision making to a guardian, when a court's determination does not
require it.
We have consolidated proposed Sec. 483.10(b) and proposed
Sec. 483.11(b) into Sec. 483.10(c), ``Planning and implementing
care.''
We have changed the term ``disciplines'' in proposed Sec.
483.10(b)(2) to ``the type of care giver or professional,'' finalizing
it at Sec. 483.10(c)(4).
We have revised proposed Sec. 483.10(b)(5)(v) to state
``the right to sign after significant changes to the plan of care,''
finalizing it at Sec. 483.10(c)(2)(v).
We have clarified in Sec. 483.10(c)(5) that the physician
or other practitioner or professional informs the resident of the risks
and benefits of proposed care, of treatment and treatment alternatives
or treatment options.
We have consolidated Sec. 483.10(b)(6) and Sec.
483.11(b)(2), finalizing these requirements at Sec. 483.10(c)(7) which
now states ``The right to self-administer medications if the
interdisciplinary team, as defined by Sec. 483.21(b)(2)(ii), has
determined that this practice is clinically appropriate.''
We have withdrawn proposed Sec. 483.10(c)(2) to require
that physician's meet facility credentialing requirements and
consolidated proposed Sec. 483.10(c)(1) and (3), and proposed Sec.
483.11(c)(1) through (3), finalizing these provisions at Sec.
483.10(d).
We have re-designated proposed Sec. 483.10(d) at Sec.
483.10(e), revised finalized paragraph (e)(6) to specify that the
resident has a right to receive written notice, including the reason
for the change when the resident's room or roommate in the facility is
change and added a new, final (e)(7)(iii) to clarify that a room change
cannot be solely for the convenience of staff.
We have consolidated proposed Sec. 483.10(e) and proposed
Sec. 483.11(d), finalizing these provisions at Sec. 483.10(f), Self-
determination.
We have added ``and other applicable provisions of this
Part'' to proposed Sec. 483.10(e)(1) and finalize this provision at
Sec. 483.10(f)(1).
We have consolidated proposed Sec. 483.10(e)(3) and
proposed Sec. 483.11(d)(1), finalizing these provisions at Sec.
483.10(f)(4), and clarifying that: (1) The resident's right to deny
visitation is ``when applicable;'' (2) a facility must have written
policies and procedures for visitation that includes restrictions, when
such limitation may apply consistent with the requirements of this
subpart, that the facility may need to place on such rights and the
reasons for the clinical or safety restriction or limitation; and (3)
the facility must inform each resident not only of any limitation, but
also to whom the restrictions apply.
We have added a new Sec. 483.10(f)(5)(i) to specify that
a facility must take reasonable steps, with the approval of the group,
to make residents and family members aware of upcoming meetings in a
timely manner.
We have added ``or other guests'' to the list of
individuals who may only attend a resident or family group meeting at
the group's invitation at finalized Sec. 483.10(f)(5)(ii).
We have consolidated proposed Sec. 483.10(e)(8) and
proposed Sec. 483.11(d)(4) into finalized Sec. 483.10(f)(9).
We have consolidated proposed Sec. 483.10(e)(9) and
proposed Sec. 483.11(d)(5) into finalized Sec. 483.10(f)(10).
We have changed ``may'' to ``must'' in finalized Sec.
483.10(f)(11)(i).
We have changed ``health care provider'' to ``physician,
physician assistant, nurse practitioner, or clinical nurse specialist''
in finalized Sec. 483.10(f)(11)(ii)(L)(1).
[[Page 68726]]
We have consolidated proposed Sec. 483.10(f) and (h) and
proposed Sec. 483.11(e) into finalized Sec. 483.10(g).
We revised proposed Sec. 483.10(f)(3) to include both
personal and medical records and finalized it at Sec. 483.10(g)(2).
We revised proposed Sec. 483.10(g)(3)(ii) to remove the
requirement that a resident must inspect a medical record prior to
requesting to purchase a copy and finalized it at Sec.
483.10(g)(2)(ii).
We updated the cross-reference to Sec. 483.11(e)(2) in
proposed Sec. 483.11(e)(1), to cross-reference Sec. 483.10(g)(2) and
(g)(11) to reflect that we do not require facilities to translate or
summarize personal and medical records and survey reports. Proposed
Sec. 483.11(e)(1) is finalized at Sec. 483.10(g)(3).
We added ``State Survey Agency'' to proposed Sec.
483.10(f)(2), finalized Sec. 483.10(g)(4)(ii), and added ``any
suspected violation of state or federal nursing facility regulations''
to proposed Sec. 483.10(f)(2)(vi), finalized at (g)(4)(vi).
We added ``requests for information regarding returning to
the community'' to proposed Sec. 483.11(e)(4), finalized at Sec.
483.10(g)(5)(ii).
We require at finalized Sec. 483.10(g)(9)(iii) that
electronic communications under this section must comply with state and
federal law.
We have revised proposed Sec. 483.11(e)(3), finalized at
Sec. 483.10(g)(11), to reflect the stricter standard imposed by the
section 1919(c)(8) of the Act, statutory language and to better reflect
both sections 1819(d) and 1919(d) of the Act, retaining the addition of
availability of any plan of correction in effect with respect to
facility, as proposed, and including the requirements that the notice
of availability of such reports are prominent and accessible to the
public and shall not make available identifying information about
complainants or residents.
We have revised proposed Sec. 483.11(e)(11)(v), finalized
at Sec. 483.10(g)(18)(v), to specify that any admission contract,
whether the facility requires it or not, must not conflict with the
requirements of these regulations.
We have consolidated proposed Sec. 483.10(g) and proposed
Sec. 483.11(f), finalized at Sec. 483.10(h), consolidating
duplicative language in proposed Sec. 483.10(g)(2) and proposed Sec.
483.11(f)(1)(ii) at finalized Sec. 483.10(h)(1), consolidating
proposed Sec. 483.11(f)(1) and (f)(1)(i), finalized at Sec.
483.10(h)(2), and deleting proposed Sec. 483.11(f)(2) as an
unnecessary cross-reference.
We have consolidated proposed Sec. 483.10(i) and proposed
Sec. 483.11(g), ``Safe environment'', finalized at Sec. 483.10(i).
We have added a new Sec. 483.10(i)(1)(ii) to require that
the facility exercise reasonable care for the protection of the
resident's property from loss or theft.
We have consolidated proposed Sec. 483.10(j) and proposed
Sec. 483.11(h), ``Grievances'' at finalized Sec. 483.10(j).
We have revised proposed Sec. 483.10(j)(1) by adding
``the behavior of staff and of other residents; and other concerns
regarding their LTC facility stay'' to the statement regarding what
grievances may include.
We finalize, as proposed, Sec. 483.11(i) at Sec.
483.10(k).
G. Freedom From Abuse, Neglect, and Exploitation (Sec. 483.12)
Currently, Sec. 483.13 is titled ``Resident Behavior and Facility
Practices.'' We proposed to re-designate and revise this section as
Sec. 483.12, ``Freedom from Abuse, Neglect and Exploitation,'' to more
accurately reflect the contents and intent.
Currently, paragraph Sec. 483.13(a) addresses the use of
restraints. We proposed to address restraints in both the introductory
paragraph to proposed Sec. 483.12 and in proposed Sec. 483.25(d)(1).
In the introductory paragraph to proposed Sec. 483.12, we maintained
the prohibition of the inappropriate use of restraints. We proposed to
further address restraints in proposed section Sec. 483.25(d)(1) on
Quality of Care and Quality of Life.
We proposed that existing paragraph Sec. 483.13(b) also be
included in the new introductory paragraph to revised Sec. 483.12. We
proposed to re-designate existing Sec. 483.13(c)(1) as Sec.
483.12(a)(2) and modify the language to clarify that a facility must
not employ or otherwise engage individuals who have been found guilty
of abuse, neglect, or mistreatment of residents by a court of law; had
a finding of abuse, neglect, mistreatment of resident or
misappropriation of property reported into a state nurse aide registry,
or had a disciplinary action taken against a professional license by a
state licensure body as a result of a finding of abuse, neglect, or
mistreatment of residents or a finding of misappropriation of property.
Currently, the regulations require that a facility must not employ
an individual who has had a finding entered against them into a state
nurse aide registry concerning abuse, neglect, mistreatment of
residents or misappropriation of property. We proposed to add a new
Sec. 483.12(a)(2)(iii) to expand this employment prohibition to
include licensed professionals who have had a disciplinary action taken
against them by a state licensure body as a result of a finding of
abuse, neglect, mistreatment of residents or misappropriation of
resident property.
We proposed to re-designate existing Sec. 483.13(c) as Sec.
483.12(b) and to revise it to also require that the facility develop
and implement written policies and procedures that prohibit and prevent
abuse, neglect, exploitation of residents and misappropriation of
resident property. We proposed to add a new Sec. 483.12(b)(2) to
require that the facility establish policies and procedures to
investigate any allegations of abuse, neglect, exploitation, or
misappropriation of property. We also proposed to add a new Sec.
483.12(b)(3) to require that the policies and procedures include
training as required by proposed Sec. 483.95. Finally, we proposed a
new Sec. 483.12(b)(5) to require that facilities establish policies
and procedures to ensure reporting of crimes in accordance with section
1150B of the Act. The policies and procedures have to include, at a
minimum, annual notification of covered individuals, posting a
conspicuous notice of employee rights, and prohibiting and preventing
retaliation.
Annual notification of covered individuals, as defined at section
1150B(a)(3) of the Act, includes notification of that individual's
obligation, as specified at section 1150B(b)(1) of the Act, to report
to the State Agency and one or more law enforcement entities for the
political subdivision in which the facility is located any reasonable
suspicion of a crime against any individual who is a resident of, or is
receiving care from, the facility. Reporting to the State Agency
fulfills the statutory directive to report to the Secretary. In
accordance with section 1150B(b)(2) of the Act, the reporting required
by 1150B(b)(1) must occur immediately, but not later than 2 hours after
forming the suspicion, if the events that cause the suspicion result in
serious bodily injury, or not later than 24 hours if the events that
cause the suspicion do not result in serious bodily injury.
We proposed to re-designate existing Sec. 483.13(c)(1)(iii) as
proposed Sec. 483.12(a)(3) and revise existing Sec. 483.13(c)(2), (3)
and (4) as proposed Sec. 483.12(c)(1), (2), (3) and (4). Specifically,
we proposed to add the term ``exploitation'' in paragraph (c)(1) and
add adult protective services where state law provides for jurisdiction
in long-term care facilities to the list of officials who must be
notified in accordance with state law; otherwise the
[[Page 68727]]
language would be unchanged from Sec. 483.12(c)(2). We proposed to
divide existing Sec. 483.13(c)(3) into two paragraphs, Sec.
483.12(c)(2) and (3), making the investigation of alleged violations
distinct from the facility's obligation to prevent further abuse of the
allegedly abused resident or other residents while the investigation is
in progress.
Comment: One commenter expressed concern that we had moved Sec.
483.13 into Sec. 483.10, ``Resident rights,'' stating that downplayed
the seriousness of alleged or confirmed acts of abuse neglect,
misappropriation or mistreatment of residents by staff, visitors,
family and other residents. The commenter suggested that it should
remain its own section.
Response: The provisions of Sec. 483.13 are maintained, with
revision, in proposed Sec. 483.12, under a new title ``Freedom from
abuse, neglect and exploitation.'' We believed this new title
highlights, rather than downplays, the need to ensure that residents of
long-term care facilities are free from to abuse, neglect, or
exploitation.
Comment: One commenter is concerned that CMS did not address the
use of resident alarms (bed alarms, tabs alarms, etc.) in the section
addressing restraints. The commenter supports CMS including language to
eliminate the use of resident alarms in light of the absence of any
documented evidence that alarms are effective in reducing resident
falls. In fact, alarms are often used to in place of facility staff to
ensure that residents are provided with adequate care and supervision.
Response: We did not address the use of alarms in the proposed rule
and would seek additional input prior to considering banning or
specifically regulating the use of alarms. We would expect the use of a
position alarm to be addressed in a resident's comprehensive care plan.
If an alarm is used as a restraint, it is subject to our provisions
relating to restraints. We understand that some alarms may have a
limited use for diagnostic purposes and a useful role in the assessment
process, as facility staff are learning about an individual. In
addition, we recognize that there is a clear distinction between
position change alarms and door alarms. We will continue to evaluate
this issue, address it in sub-regulatory guidance, and consider it for
future rule-making.
Comment: A number of commenters supported the addition of this
section to emphasize the protection of residents from abuse, neglect
and exploitation. Commenters specifically appreciated the reference to
chemical and physical restraints, and the inclusion of language that
complies with the Affordable Care Act regarding the reporting of
crimes. Some commenters also stated that they supported the inclusion
of violations in this section in the definition of ``substandard
quality of care.''
Response: We thank the commenters for their support. Ensuring that
residents of long-term care facilities are protected is an important
purpose of these requirements.
Comment: One commenter suggested that we add ``exploitation'' to
paragraphs (a)(2)(i) and (a)(2)(ii).
Response: Thank you. We have added ``exploitation'' to proposed
paragraphs (a)(2)(i), (ii), and (iii), as finalized at Sec.
483.12(a)(3)(i), (ii), and (iii), since we believe that the comment was
intended to apply to all the situations described in what we have now
re-designated as Sec. 483.12(a)(3).
Comment: One commenter urges CMS to carefully describe the
consequences for violations of the proposed provisions relating to
prohibiting certain hiring and urged that they be implemented
consistent with the HHS Office of Inspector General's statutory
provision related to hiring or retaining people who have been excluded
from participating in federally funded health care programs, including
but not limited to civil monetary penalties. By increasing the severity
of adverse consequences for hiring staff that could potentially harm
residents, CMS will properly encourage facilities' compliance with
these requirements.
Response: Enforcement is outside the scope of these regulations. We
will take this matter under consideration and share this suggestion
with the HHS OIG.
Comment: Some commenters supported our proposed revisions at Sec.
483.12(a)(2) to prohibit facilities not only from employing certain
individuals, but also from engaging these individuals through other
mechanisms and for expanding the prohibition on employment to
individuals who have had a disciplinary action taken against their
professional license by a state licensure body as a result of a finding
of abuse, neglect or mistreatment of residents or misappropriation of
resident property. Some commenters expressed concern about the impact
of (a)(2) on volunteers and one commenter asked we clarify its
application to volunteers or to employees of contracted services such
as when a facility hires a contractor to perform renovations. One
commenter strongly recommended that subsections (a)(2)(ii) and
(a)(2)(iii) be broadened to apply to abuse, neglect, exploitation, or
misappropriation of property of any persons serving as nurse aides or
other direct care workers and that this requirement be expanded to
include all staff employed by the LTC facility.
Response: We thank the commenters for their suggestions and
support. Our primary concern is to protect the health and safety of
residents. We are not, at this time, requiring criminal background
checks on volunteers, but would expect facilities to exercise
reasonable care consistent with the volunteers' expected roles and not
knowingly engage volunteers who have been found guilty of abuse,
neglect, exploitation, misappropriation of property, or mistreatment by
a court of law. With regard to the employees of contractors such as
those performing renovations, who would not be providing care to or
interacting directly with residents, we would expect the facility to
exercise reasonable care in selecting the contractor. We defer
additional discussion to subregulatory guidance. We are not further
expanding the prohibition at this time, but will evaluate the issue and
consider it for future rule-making.
Comment: Some commenters expressed concern that these employment
prohibitions could involve the application of long-resolved findings
against a person. A potential employee might be able to demonstrate
extenuating circumstances or rehabilitation after time has passed. The
commenters noted that these prohibitions could disqualify a person for
life, even if the previous findings were unrelated to their care of LTC
facility patients. One commenter asked if the regulations can address a
process by which nurse aides and licensed personnel can show successful
rehabilitation and be eligible to work in an LTC setting again. Another
suggested that it would be appropriate to look at the circumstances and
details of each situation, and not exclude all individuals, as
proposed. One commenter suggested that the prohibition on employment be
based only on felony convictions related to care or services for an
individual. Another commenter suggested that CMS consider issuing
guidance that would urge states to extend the due process requirements
that govern the National Background Check Program, including those
requiring an independent process for appealing or disputing the
accuracy of the information obtained, and for consideration of the
passage of time, extenuating circumstances, demonstration of
rehabilitation, and relevancy of the particular disqualifying
information with respect to the current employment of the individual.
[[Page 68728]]
Response: In response to these comments, we have modified proposed
Sec. 483.12(a)(2)(iii) relating to licensed personnel to prohibit
employment based on disciplinary action for those actions currently in
effect, which we will finalize as Sec. 483.12(a)(3)(iii). This
provision, as finalized, will prohibit facilities from employing
certain individuals who have a disciplinary action in effect against a
professional license. We believe that this provides facilities some
flexibility to exercise discretion with regard to previous disciplinary
actions. Where a facility is aware of previous disciplinary actions
against a professional license, but those actions have been resolved,
the facility makes their own hiring decisions based on the specific
nature and circumstances of those previous disciplinary actions and in
keeping with their responsibility to protect the health and safety of
residents.
Proposed Sec. 483.12(a)(2)(i) and (ii), which we will finalize as
Sec. 483.12(a)(3)(i) and (ii), prohibit facilities from employing or
otherwise engaging individuals who have been found guilty of abusing,
neglecting or mistreating residents by a court of law, or who have had
a finding entered into the State nurse aide registry concerning abuse,
neglect, mistreatment of residents or misappropriation of their
property. We believe additional consideration and research is necessary
before we propose to further modify these provisions. Any additional
changes would be proposed in future rule-making.
With regard to the suggestion that CMS consider issuing guidance
that would urge states to extend the due process requirements that
govern the National Background Check Program, including those requiring
an independent process for appealing or disputing the accuracy of the
information obtained, and for consideration of the passage of time,
extenuating circumstances, demonstration of rehabilitation, and
relevancy of the particular disqualifying information with respect to
the current employment of the individual, we will consider this for
future action.
Comment: One commenter stated that, without a centralized registry
for actions against an individual's state licensure, it is impossible
for a facility to check with all 50 states for disciplinary action
against a professional license. One commenter recommended we delete the
language at Sec. 483.12(a)(2)(iii). Another stated that without a
centralized registry, it was unreasonable to expect a facility to check
for disciplinary action against a professional license and raised the
question of what would constitute a disciplinary action. The commenter
further stated that his state does not indicate when disciplinary
action has been taken against an individual.
Response: We agree that a facility is not expected to query 50
states for information on each licensed individual. We would expect the
facility to check with the state in which the facility is located and
care is delivered and potentially bordering states or other states that
the individual is known to have been licensed in, based on the
individuals resume or other employment information available to the
facility. We checked the Web site for state nursing board for the state
mentioned and found that it does indicate the status of the license
(active, revoked, probation, etc.). We would expect facilities to
exercise reasonable efforts to determine if a state licensing board has
taken disciplinary action against a professional license, based on the
licensing board's definition of disciplinary action. We have revised
the provision to state ``. . . a disciplinary action in effect against
his or her professional license by a state licensure body as a result
of a finding of abuse, neglect, mistreatment of residents or
misappropriation of resident property.'' We defer additional discussion
the sub-regulatory guidance.
Comment: One commenter recommended that we clarify here or in the
definition section what is meant by ``unfitness for service'' and
discuss what the State Survey Agency would do with this information
once reported as required under Sec. 483.12(a)(4).
Response: Section 483.12(a)(4) requires that the facility report to
the State nurse aide registry or licensing authorities any knowledge it
has of actions by a court of law which would indicate unfitness for
services as a nurse aide or facility staff. Sub-regulatory guidance
provides additional information to assist facilities and surveyors in
implementing this provision. If a facility determined that action by a
court of law against an employee are such that they indicate that the
individual is unsuited to work in a LTC facility, or ``unfit for
service'', (for example, felony conviction of child abuse, sexual
assault, or assault with a deadly weapon), we would expect the facility
to report that individual to the nurse aide registry (if a nurse aide)
or to the state licensing authorities (if a licensed staff member).
Facility reporting to the state nurse aide registry or licensing
authorities is not limited to mistreatment, neglect and abuse of
residents and misappropriation of their property, but to any treatment
of residents or others inside or outside the facility which the
facility determines to be such that the individual should not work in a
LTC facility environment. Federal requirements related to the state
administration of the nurse aide registry, including information
disclosure requirements and State Survey Agency responsibilities, are
set forth at 42 CFR 483.156 and 488.335.
Comment: One commenter notes that provisions relating to reporting
of a crime have already been incorporated into the current survey
process and therefore these provisions could be implemented one year
following adoption of a final rule.
Response: We deliberately established regulatory requirements based
on existing expectations of facilities based on the statutory language.
We would expect that all facilities are currently in compliance with
the Act.
Comment: A commenter recommends that in Sec. 483.12(b)(4), we say
``coordinate'' instead of ``establish coordination.''
Response: We agree and have made this change.
Comment: Several commenters asked that we harmonize the reporting
requirements for reporting a reasonable suspicion of a crime in Sec.
483.12(b) and the requirements for reporting allegations of abuse,
neglect, and exploitation to the LTC facility administrator in Sec.
483.12(c). Commenters state that the two provisions should use the same
timeframes.
Response: We generally agree and have revised Sec. 483.12(c)(1) to
require that all allegations of abuse be reported immediately, but not
later than 2 hours after allegation is made, and allegations of neglect
or exploitation to be reported to the administrator of the facility
immediately, but not later than 2 hours after forming the suspicion, if
the events that cause the suspicion result in serious bodily injury, or
not later than 24 hours if the events that cause the suspicion do not
result in serious bodily injury. We note that all allegations of abuse,
with or without injury, fall into the immediate reporting category, as
we believe it is imprudent to allow delay reporting of any abuse.
Furthermore, we note that the 2-hour and 24-hour time frames represent
maximums and we would expect that most reports would occur more
quickly. In all cases, we would expect prompt action to protect
individuals and address concerns, and delays in reporting, even within
the allowable time frames, must be reasonable and not be related to
attempts to obscure events or evade responsibility.
[[Page 68729]]
Comment: Several commenters are concerned about the inclusion of
the resident representative in proposed Sec. 483.12(c)(4). A few
commenters suggested that this was a technical error and should have
referred to the administrator's designee.
Response: The commenters are correct that the reference in this
paragraph was intended to be to the LTC facility administrator's
designee or designated representative. We have corrected the provision.
Comment: One commenter suggests that we add ``as required by state
law'' at the end of Sec. 483.12(b)(5).
Response: While facilities are expected to comply with state law,
this provision is specific to compliance with section 1150B of the Act.
We are not revising at this time.
Comment: One commenter stated that giving covered individuals up to
2 hours to report to law enforcement and the state agency in cases of
serious bodily injury is unacceptable.
Response: We revised Sec. 483.12(b)(5)(i)(B) to state ``. . .
shall report immediately, but not later than 2 hours . . .'' in
accordance with 1150B of the Act.
Comment: One commenter stated that individuals living in the
community would immediately call the police if they had reason to
believe items had been stolen from their home and the same expectations
should apply in a LTC facility, where theft of resident personal
possessions continues to be a serious problem. Reporting suspected
theft as a crime could serve as a deterrent and send a message that
stealing will not be tolerated. The commenter recommends that CMS
clarify in guidelines that suspicion of theft of resident property is
considered a reportable crime.
Response: This regulation does not preclude a covered individual
from reporting theft immediately. However, covered individuals must
report suspicion of crimes not resulting in harm no later than 24
hours. Crimes are defined by laws of the applicable political
subdivision where the facility is located, therefore, we will defer
further discussion of reportable crimes to sub-regulatory guidance.
Comment: One commenter suggests that current CMS sub-regulatory
guidelines related to subsection (b) be put into regulation to ensure
resident safety, with additional language to specify the rights of
staff during investigations, since far too often staff members are
inappropriately terminated without a substantiated investigation.
Response: We will review the sub-regulatory guidance and evaluate
the appropriateness of incorporating it into regulations in future
rulemaking.
Comment: One commenter recommended adding an express prohibition of
all forms of discrimination against residents.
Response: We did not propose such a prohibition; however,
facilities are expressly required by Sec. 483.70(b) to operate in
compliance with all applicable Federal, State, and local laws,
regulations, and codes. This includes, for example, the Americans with
Disabilities Act and section 504 of the Rehabilitation Act. In
addition, Sec. 483.70(c) explicitly requires compliance with other HHS
regulations. This would include but not be limited to those regulations
pertaining to non-discrimination on the basis of race, color, or
national origin (45 CFR part 80); nondiscrimination on the basis of
disability (45 CFR part 84); nondiscrimination on the basis of age (45
CFR part 91); protection of human subjects of research (45 CFR part
46); and fraud and abuse (42 CFR part 455) and protection of
individually identifiable health information (45 CFR parts 160 and
164). We note that 45 CFR part 92, non-discrimination on the basis of
race, color, national origin, sex, age, or disability, was finalized
after the issuance of our proposed rule. Based on this comment, we have
added it to the list of regulations at Sec. 483.70(c). We will
consider an express prohibition in future rule-making.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
We revised paragraphs (a)(2)(i),(ii), and (iii) to include
``exploitation.''
We revised paragraph (a)(2)(iii) to read ``. . . Have a
disciplinary action in effect against his or her professional license
by a state licensure body as a result of a finding of abuse, . . .''
We revised paragraph (b)(5)(i)(B) to read ``Each covered
individual shall report immediately, but not later than 2 hours . . .''
We revised paragraph (c)(1) to require that allegations of
abuse, neglect, or exploitation to be reported to the administrator of
the facility immediately, but not later than 2 hours after forming the
suspicion, if the events that cause the suspicion involve abuse or
result in serious bodily injury, or not later than 24 hours if the
events that cause the suspicion do not involve abuse and do not result
in serious bodily injury.
We corrected paragraph (c)(4) to read ``Report the results
of all investigations to the administrator or his designated
representative and . . .''
H. Admission, Transfer, and Discharge Rights (Sec. 483.15)
We proposed to re-designate current Sec. 483.12 ``Admission,
transfer, and discharge rights'' as new Sec. 483.15, and revised the
general title to ``Transitions of care'' in order to reflect current
terminology that applies to all instances where care of a resident is
transitioned between care settings.
In new Sec. 482.15(a) we proposed to include requirements for
admissions policies and moved these requirements to the beginning of
the section to reflect chronological order. We proposed a new paragraph
(a)(1) to require that the facility establish an admissions policy.
Additionally, we proposed to re-designate current Sec.
483.12(d)(1) as Sec. 483.15(a)(2) to state that facilities cannot
request or require residents or potential residents to waive their
rights to Medicare or Medicaid benefits or to any rights conferred by
applicable state, federal and local licensing or certification laws. We
proposed to add a new paragraph (a)(2)(iii) to prohibit facilities from
requesting or requiring residents or potential residents to waive any
potential facility liability for losses of personal property. We
further proposed to add a new paragraph (a)(6) to specify that a
nursing facility must disclose and provide to a resident or potential
resident, prior to time of admission, notice of any special
characteristics or service limitations of the facility.
We also proposed to relocate existing Sec. 483.10(b)(12) to new
Sec. 483.15(a)(7). This section addresses admission disclosure
requirements for composite distinct part nursing facility, and is more
appropriately located in the section on admissions.
We proposed to re-designate Sec. 483.12(a) as proposed Sec.
483.15(b) and address transfers and discharges. We proposed at Sec.
483.15(b)(1)(ii)(C) to revise existing Sec. 483.12(a)(2)(iii) and
clarify that a resident could be discharged when the safety of other
individuals is endangered due to the clinical or behavioral status of
that resident. In Sec. 483.15(b)(1)(ii)(E), we proposed to revise
existing Sec. 483.12(a)(2)(v) and clarify that provisions for
discharge as a result of non-payment of facility charges would not
apply unless the resident did not submit the necessary paperwork for
third party payment or until the third party, including Medicare or
Medicaid, denied the claim and the resident refused to pay for his or
her stay. Finally, we proposed a new Sec. 483.15(b)(1)(iii) to specify
that the facility may not transfer or discharge the
[[Page 68730]]
resident while the appeal is pending, pursuant to 42 CFR 431.230 when a
resident exercises his or her right to appeal a transfer or discharge
notice from the facility pursuant to 42 CFR 431.220(a)(3).
In the proposed revision to paragraph Sec. 483.15(b)(2), we made a
number of revisions based on the importance of effective communication
between providers during transitions of care. First, we proposed to
clarify that the transfer or discharge would be documented in the
resident's clinical record and that appropriate information would be
communicated to the receiving setting. In addition, we proposed to
require that, when a facility transfers or discharges a resident
because the transfer or discharge is necessary for the resident's
safety and welfare, the facility would include in its documentation the
specific resident needs that it cannot meet, facility attempts to meet
the resident needs, and the service(s) available at the receiving
facility that will meet the resident's needs.
We proposed to add a new requirement at Sec. 483.15(b)(2)(i) that
the transferring facility provide necessary information to the
resident's receiving provider, whether it is an acute care hospital, a
LTC hospital, a psychiatric facility, another LTC facility, a hospice,
home health agency, or another community-based provider or
practitioner. We did not propose a specific form, format, or
methodology for this communication. Instead, we proposed specific data
elements or a set of information that must be communicated during the
transfer process. This includes demographic information, including but
not limited to name, sex, date of birth, race, ethnicity, and preferred
language, resident representative information including contact
information, advanced directive information, history of present
illness/reason for transfer, including primary care team contact
information, past medical/surgical history, including procedures,
active diagnoses/current problem list, laboratory tests and the results
of pertinent laboratory and other diagnostic testing, functional
status, psychosocial assessment including cognitive status, social
supports, behavioral health issues, medications, allergies including
medication allergies, immunizations, smoking status, vital signs,
unique identifier(s) for a resident's implantable device(s), if any,
comprehensive care plan including health concerns, assessment and plan,
goals, resident preferences, other interventions, efforts to meet
resident needs, and resident status. We did not establish a time frame
for this communication, as this may vary based on the circumstances
surrounding the transfer; however, in the proposed rule we indicated
that we expect communication to occur shortly before or as close as
possible to the actual time of transfer and that the facility would
document that communication has occurred.
In paragraph (b)(3)(i), we proposed to update the language
currently in Sec. 483.12(a)(4)(i) to reflect our ``resident
representative'' language and proposed to require that the facility
send a copy of the notice of transfer or discharge to the State Long-
Term Care Ombudsman with the resident's consent. In paragraph
(b)(3)(ii), we proposed a minor revision to the language currently in
Sec. 483.12(a)(4)(ii) to clarify that the facility records the reasons
for the transfer or discharge, in accordance with proposed Sec.
483.15(b)(2).
In Sec. 483.15(b)(5)(iii), we proposed to modify language
currently in Sec. 483.12(a)(6)(iii) by adding the phrase ``expected to
be'' to reflect our understanding that when a notice of transfer or
discharge is issued 30 days prior to transfer, the transfer or
discharge destination may subsequently change. We also proposed in
paragraph (b)(5)(iv) to require that the notice include the name,
address (mailing and email), and telephone number of the state entity
which receives discharge or transfer appeal requests; and information
on how to obtain an appeal form, how to obtain assistance in completing
the form, and how to submit the appeal request. We also proposed to add
a new paragraph Sec. 483.15(b)(6) to require that when information in
the notice changes, the facility must update the recipients of the
notice as soon as practicable with the new information to ensure that
residents are aware of and can respond appropriately to discharge
information. We proposed to re-designate Sec. 483.12(a)(7) as Sec.
483.15(b)(7) and revised it to require that the facility provide to the
resident an orientation regarding his or her transfer or discharge in a
form and manner that the resident can understand. Finally, in Sec.
483.15(b)(9), we proposed to clarify that room changes in a composite
distinct part are subject to the requirements of proposed Sec.
483.10(d)(7).
In paragraph Sec. 483.15(c) we proposed to add language to require
that the facility provide information to the resident that informs the
resident of and distinguishes and explains the difference between the
duration of the state bed-hold policy, if any, as well as the reserve
bed payment policy in the state plan, required under 42 CFR 447.40, if
any. In Sec. 483.15(c)(1)(iv), we proposed to add a new requirement
that a facility's notice of its bed-hold policy and readmission must
also include information on the facility's policy for readmission, as
required under proposed Sec. 483.15(c)(3), for a resident whose
hospitalization or therapeutic leave exceeds the bed-hold period under
the state plan. Finally, we proposed to redesignate existing Sec.
483.12(a)(3) as Sec. 483.15(c)(3) and revised it to add a new
requirement that a resident who is hospitalized or placed on
therapeutic leave with an expectation of returning to the facility must
be notified in writing by the facility when the facility determines
that the resident cannot be readmitted to the facility, the reason the
resident cannot be readmitted to the facility, and the appeal and
contact information specified in Sec. 483.15(b)(5)(iv) through (vii).
Comment: One commenter found the reorganization of this section
confusing.
Response: We thank the commenter for their comment. We have
incorporated many suggestions from commenters and believe that the
resulting provisions are much clearer.
Comment: Some commenters supported our proposal to re-designate
Sec. 483.12 ``Admission, transfer, and discharge rights as new Sec.
483.15 to address all transitions of care. We also received several
comments suggesting that the title change from ``Admission, transfer,
and discharge rights'' to ``Transitions of care'' may make it more
difficult for some readers, particularly residents of LTC facilities
and their representatives, to find information on admissions, transfers
and discharges and that the term ``transitions'' was not easily
understandable and could have unintended implications. In addition,
many commenters were very concerned that the term ``rights'' was
removed from the title and felt this could negatively impact residents.
Several commenters suggested we retain the original title. One
commenter suggested we revise the title to ``Resident's Rights and
Transitions of Care.'' One commenter suggests moving all content
describing resident rights in Sec. 483.15 be moved to Sec. 483.10,
Resident rights.
Response: We acknowledge these concerns. Therefore, we will retain
the original title ``Admission, transfer, and discharge rights''.
Comment: Several commenters suggested specific wording and
punctuation changes throughout this section. This included several
changes to make the language used in the regulation less institutional.
One commenter stated that some person-
[[Page 68731]]
centered language would require a distinction between long-stay and
short-stay residents.
Response: We reviewed and considered each suggested wording and
punctuation change, but do not discuss each one separately below. If we
felt that the suggested change improved clarity, we have incorporated
it. If the suggested change does not improve clarity, we have not
incorporated it. Comments suggesting wording changes that substantively
alter our intended meaning are discussed below.
Comment: Some commenters recommended that we implement similar
requirements for exchanging information for hospitals.
Response: Conditions of participation for hospitals are outside the
scope of this rule. However, we refer commenters to a proposed rule,
``Medicare and Medicaid Programs; Revisions to Requirements for
Discharge Planning for Hospitals, Critical Access Hospitals, and Home
Health Agencies'' published on November, 1, 2015 (80 FR 68126) which
can be viewed at https://www.thefederalregister.org/fdsys/pkg/FR-2015-11-03/pdf/2015-27840.pdf. This rule addresses discharge planning requirements for
hospitals and other post-acute care providers, including requirements
for exchange of information upon transfer.
Comment: Some commenters expressed support for the addition of
``request'' in subsections (a)(2)(i) through (iii) and (3). These
commenters felt this would help prevent attempts to evade current law
by using the term ``request'' to seek what is intended as a
requirement.
Response: We thank the commenter and agree that sometimes the word
``request'' can be used for what is effectively a requirement.
Comment: One commenter suggested that CMS modify the language in
Sec. 483.15(a)(2)(iii) to reflect a relatively recent statutory
provision that allow a continuing care retirement community to require
residents to spend on their care resources declared for the purposes of
admission before such residents can apply for medical assistance.
Response: We thank the commenter for this suggestion. We have
reviewed the Medicaid requirements at section 1919(c)(5)(B)(v) of the
Act. We will develop any necessary regulatory requirements and propose
to incorporate them in future notice and comment rule-making. However,
we note that LTC facility requirements are for purposes of surveying
the facility and the provision applies to a select subset of LTC
facilities.
Comment: One commenter was concerned that the term ``service
limitations'' is not defined. A number of commenters felt that this
provision could allow facilities to improperly discriminate in
admissions, transfers, and discharges. One commenter felt that this
would allow facilities to reduce or eliminate their responsibility for
complying with our requirements. One commenter suggested that it would
be more helpful for a resident to understand the services a facility
provides instead of requiring disclosure of special characteristics or
services limitations. Another commenter suggested we clearly state that
facilities must provide all services required by federal law and
regulation and cannot refuse to provide any services that it is
required by federal law to provide to residents who need such services.
Some commenters recommend we delete this provision in its entirety. One
commenter recommended that if the provision is retained, any disclosure
of special characteristics or service limitations must occur prior to
the time of admission.
Response: We agree that this disclosure should occur prior to
admission and have modified the regulations text accordingly. We
considered deleting this provision or changing it to require that
facilities disclose the services they do provide, however, we believe
that the proposed requirement is the option that is likely to ensure
prospective residents receive information they are not likely to
receive absent a requirement and which can inform decision making. We
do 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.
Comment: One commenter suggested removing ``of the residents'' and
``or other responsible parties'' from subsection (b)(8), as these
phrases are redundant and create confusion.
Response: We thank the commenter and have revised the paragraph,
now (c)(8), as suggested.
Comment: One commenter supported new language at Sec. 483.15(a)(7)
requiring facilities that are a composite distinct part to disclose in
its admission agreement its physical configurations, including the
various locations that comprise the composite distinct part, and must
specify the policies that apply to room changes between its different
locations.
Response: We thank the commenter and agree that this important
information for residents and their representatives.
Comment: Several comments objected to our addition of the phrase
``expected to be'' in proposed Sec. 483.15(b)(5)(iii). The commenters
suggested this will allow a facility to get the resident's agreement to
a transfer and subsequently change the location to a location the
resident objects without giving the resident 30 day notice, taking away
important resident protections. Commenters suggested either not
finalizing the proposal or establishing that the 30 day notice
``resets'' if the notice is changed.
Response: We agree and have removed the phrase ``expected to be''
from this provision, which we finalize at Sec. 483.15(c)(5)(iii), as
suggested.
Comment: Several commenters appreciated the addition of ``and
implement'' to the statement that facilities must establish an
admissions policy. One commenter was concerned that CMS does not
clarify what is anticipated by this requirement.
Response: We thank the commenters for their support and agree that
implementation of policies at Sec. 483.15(a)(1) is essential to making
requirements effective. Our expectations that a facility ``establish
and implement'' an admissions policy means that a facility must have
such a policy, that the policy must be compliant with the requirements
for participation, and that the facility must follow its policy.
Comment: Commenters supported the proposed provision requiring
facilities to establish, maintain, and implement identical policies and
practices regarding transfer, discharge, and the provision of services
for all individuals regardless of source of payment.
Response: We thank the commenter for support. We have re-designated
this provision as new Sec. 483.15(b)(1).
Comment: Some commenters supported our proposal to revise
``safety'' in paragraph (c)(1)(i)(C) as ``safety due to the clinical or
behavioral status of the resident.'' Some commenters suggested that CMS
require facilities to demonstrate that the resident poses a legitimate
safety concern, what steps it has taken before discharging or
transferring, and how it provided access to mental health services for
the resident. One commenter felt that this language is too broad and
could result in inappropriate discharges of residents whose behavior is
challenging.
Response: We thank the commenters who support this revision.
Currently, the language simply states that a resident can be discharged
if safety of individuals in the facility is endangered. We do not agree
that adding the caveat ``due the clinical or behavioral status of the
resident'' is broader and would
[[Page 68732]]
create greater opportunity for inappropriate discharges. We are
implementing requirements in this rule regarding the information that
must be documented when a resident is transferred or discharged. Those
requirements include the basis for the transfer or discharge. When the
basis for the transfer or discharge is the clinical or behavioral
status of the resident, we expect that status to be part of the
documentation.
Comment: Some commenters suggested that CMS explicitly require that
the discharging facility facilitate a transition to another facility.
Response: Facilities are required to provide specific information
to the receiving provider and to provide sufficient preparation and
orientation to the resident for the transfer to ensure safe and orderly
transfer or discharge from the facility. This orientation must be
provided in a form and manner that the resident can understand. These
requirements are intended to facilitate a transition to another
facility.
Comment: One commenter stated that they strongly support improved
approaches to managing behavior, but opposed the proposal to create a
topic called ``behavioral health'' that is not, and cannot be,
adequately defined. The commenter feels behavior issues can be covered
under other sections; for example, psychosocial assessment and
functional status, and underlying causes can be covered under active
diagnoses, history of present illness, and current problem list. The
commenter stated that, ultimately, regardless of the name, the issue to
be conveyed is whether behavior is personally and socially appropriate,
or at least not excessively disruptive or destructive to the individual
and to others.
Response: We disagree. Please see our discussion of Sec. 483.40 in
section L. Behavioral Health of this preamble.
Comment: Some commenters were concerned about charges related to
bed-hold policies. One commenter suggested CMS prohibit facilities from
asking a family member to hold a bed or at least restrict the fee a
nursing facility can charge to no more than the Medicaid per diem
direct rate or no more than the amount the state would pay to hold the
bed. In addition, the commenter suggested that CMS require facilities
to provide information on the current occupancy rate.
Response: We appreciate the commenters' suggestions. We will
evaluate the implications of such a policy and consider it for future
notice and comment rule-making.
Comment: Some commenters objected to the requirement that
facilities not request or require residents or potential residents to
waive potential liability for losses of personal property. Commenters
felt that, while a facility should offer a secure place to store
valuables, it is unreasonable for a facility to be responsible for all
losses of resident's personal property and that other requirements
addressed the issue. One commenter recommended that facilities include
in their admissions policy information on how a resident can safely
store personal items to prevent potential loss of personal property.
Others suggested that facilities only be liable for items included on
an official inventory of the resident's personal items. Several other
commenters supported the proposed provision that prohibits waivers of a
facility's liability for loss of personal property, but felt that the
prohibition should apply to all waivers of liability.
Response: A resident's broad waiver of liability could allow a
facility to avoid liability even when the facility is responsible for a
loss of personal property. This provision does not make the facility
automatically liable for every loss of personal property, nor preclude
the facility from having policies that establish when the facility is
liable. Rather, we would protect the resident from facilities
inappropriately avoiding liability by failing to take reasonable care
in protecting residents' personal property.
Comment: Some commenters were concerned that facilities evade the
prohibition on requiring a third-party to guarantee payment, which we
are finalizing at 483.15(a)(3), by using contracts that require a
resident representative to commit to paying facility charges out of
resident resources and suing the representative for breach of contract
if the resident's bill is unpaid.
Response: We need to further investigate this concern and consider
it for future notice and comment rule-making.
Comment: Several commenters were concerned about provisions
relating to non-payment. Some commenters were concerned about having to
wait for a third-party denial. One commenter felt that residents should
have to demonstrate that they have applied for Medicaid or other third-
party payment under Sec. 483.15(c)(1)(i)(E) within a specified period
of time from the date a facility notifies the resident that Medicare
payment will expire in order to be protected by the prohibition on
discharging a resident who has applied for third party payment. Another
commenter suggested we reword our provision regarding non-payment to
state that non-payment only applies if the resident has submitted the
necessary paperwork for third party payment or after the third party
payor, including Medicare or Medicaid, denies the claim and the
resident refuses to pay for his or her stay. Another commenter
suggested that we clarify that non-payment does not apply if the
resident is in the process of submitting the paperwork for third-party
and that conversion from the private pay rate to payment at the
Medicaid rate does not constitute non-payment.
Response: We thank the commenters for their suggestions. In
addition to the proposed language regarding reasonable and appropriate
notice, we have revised the provision to state that non-payment applies
if the resident does not submit the necessary paperwork for third party
payment or after the third party payor denies the claim and the
resident refuses to pay for his or her stay. We defer additional
discussion to sub-regulatory guidance.
Comment: One commenter stated that equal access to quality of care,
proposed Sec. 483.12(b)(1) does not make sense in its new location and
that equal access to quality of care needs to be its own subsection or
added to an entirely new and independent location such as residents
rights.
Response: We agree with the commenter that this section should have
been its own subsection. We have corrected this and it is now Sec.
483.15(b).
Comment: One commenter was concerned that the prohibition on
discharging a resident while an appeal is pending could result in
forcing a facility to keep a resident whose care the facility is not
able to adequately and safely provide. In addition, the commenter felt
that, if the facility cannot discharge the resident, Medicaid must be
required to pay for the cost of the resident's care while the appeal is
pending. Other commenters supported the prohibition on involuntary
transfer or discharge while an appeal is pending. One commenter
recommended instituting high dollar fines for any facility that
improperly transfers, discharges, or refuses to readmit a resident.
Response: We have clarified that this provision applies unless the
failure to transfer or discharge would endanger the health or safety of
the resident or other individuals in the facility. In the event that
failure to discharge or transfer would endanger the health or safety of
the resident or other individuals in the facility, the facility must
document what danger the failure to transfer would pose. Instituting
fines for improper transfers, discharges, or
[[Page 68733]]
refusals to allow a resident to return to the facility are beyond the
scope of this regulation. However, we will take these comments into
consideration for future rulemaking.
Comment: Generally, all commenters supported efforts to improve
transitions of care. We received comments both supporting and objecting
to the specific pieces of information we proposed to require facilities
to send to a receiving provider when a resident is transferred. Some
commenters want CMS to add additional elements to the list of
information that a facility must include in transfer documentation. For
example, one commenter suggested that we include the name and contact
information of the resident's family member(s). Others suggested a
number of elements related to diet and nutritional needs and status and
another suggest we add behavioral symptoms and triggers to the list of
specific information. Other suggestions included indicating the
resident's assisted technology, durable medical requirement needs, and
communication methods. One commenter felt that transfer information
should include portable orders for scope of treatment, if applicable.
Another commenter suggested the proposed list includes items that may
be irrelevant in many cases and is more extensive than what is required
when a hospital discharges a patient. Some commenters oppose this
requirement as proposed. One commenter stated that this requirement
would be difficult to meet in a timely and accurate manner without
interoperable health information exchange, yet LTC facilities did not
receive incentives for the adoption of health information technology
that would help to enable such exchange. Some commenters suggest that
the federal government should provide meaningful use incentives or
other funding to LTC facilities if we finalize this requirement.
Response: We thank commenters for their support and their
suggestions. We have reviewed our proposed list, concerns about the
applicability of items in the proposed list, and suggestions for
additional items that could be added. While we continue to believe that
much of the information we proposed should be exchanged for residents
to whom it applies, as well as many of the additional suggestions we
received, at this time, we are requiring a more flexible set of
requirements. We understand that the information required may vary
based on the circumstances of an individual's discharge or transfer,
including the urgency of the transfer. We defer to sub-regulatory
guidance for additional discussion of circumstances when a discharge
summary would be expected, as in a discharge to home and community
based services, versus when it would not be appropriate to delay, such
as when a resident requires an emergency transfer. The revised set of
requirements includes the following:
Contact information of the practitioner responsible for
the care of the resident,
resident representative information including contact
information,
advance directive information,
special instructions or precautions for ongoing care,
the resident's comprehensive care plan goals,
all other necessary information, including a copy of the
resident's discharge summary, consistent with Sec. 483.21(c)(2), as
applicable, and any other documentation, as applicable, to ensure a
safe and effective transition of care.
We note that the discharge summary mentioned above must include the
medication reconciliation, as well as a recapitulation of the
resident's stay, a final summary of the resident's status, and the
post-discharge plan of care. Please see our discussion of portable
orders for scope of treatment in section D, in the comments and
responses relating to planning and implementing care.
While we have increased the flexibility in these requirements, we
continue to support alignment discussed in the proposed rule between
this approach and the common clinical data set which providers
participating in the EHR Incentive Program(s) have focused on
electronically exchanging through the use of certified EHR technology
(80 FR 62693). We encourage facilities to identify opportunities to
streamline data collection and exchange by using data they are already
capturing electronically, for instance, as part of the MDS data
collection.
Comment: One commenter suggested that CMS mandate a specific form
and format for the transmission of discharge information.
Response: No specific form or format has been developed at this
time. In addition, some states have their own mandated form. We are not
mandating a specific form at this time, but we will consider this for
future development and rule-making.
Comment: One commenter supported the requirement that the discharge
notice include information on the agency for the protection and
advocacy of individuals with intellectual and developmental
disabilities when individuals discharged have such disabilities and on
the agency for the protection and advocacy of individuals with a mental
disorder when discharged residents have a mental disorder, and
suggested that we extend this to individuals with related disabilities,
such as traumatic or acquired brain injury.
Response: We thank the commenter for their suggestion and have
modified these provisions to include individuals with related
disabilities.
Comment: One commenter suggested that the information required to
be in the discharge notice, as specified as proposed Sec. 483.15(b)(5)
include the name, address, and telephone number of the representative
of the Office of the State Long-Term Care Ombudsman.
Response: In this final rule, we are requiring that this
information be provided to the resident in the written description of
legal rights (Sec. 483.10(g)(4)(ii)), and posted in an accessible
manner (Sec. 483.10(g)(5)). In addition, a copy of the notice must be
sent to the Long-Term Care Ombudsman (Sec. 483.15(c)(3)(i)).
Comment: A number of commenters were concerned that the obligation
at proposed Sec. 483.15(b)(5)(iv) to assist a resident with completing
and submitting an appeal unfairly turns the facility into the
resident's legal representative. Furthermore, the notice of discharge
provides contact information for the Ombudsman, who helps residents get
in touch with legal resources to file hearing requests.
Response: This provision does not make a facility or any of its
employees the legal representative of the resident under state laws;
moreover, a facility cannot engage in the practice of law. The
provision does not require that the facility provide legal advice or
counsel. It does mean that a facility must, as it does in other ways,
physically assist a resident in obtaining access to services, and,
importantly, cannot act as a barrier to a resident exercising a right.
``Assistance with completing'' could be helping the resident to contact
the Ombudsman or helping the resident get a copy of the pertinent form.
``Submitting'' could mean putting a letter in outgoing mail. We defer
further discussion to sub-regulatory guidance.
Comment: Some commenters supported our proposal to require that
discharge notices be sent to a representative of the Office of the
State Long Term Care Ombudsman. Several commenters suggested that
requiring resident agreement for sending the notice to the LTC
Ombudsman was potentially confusing and unnecessary.
[[Page 68734]]
Others suggested that we specify that the notice go to the local
ombudsman. Another requested clarification on the intended effect of
sending the notice and whether or not sending the notice constituted a
request for assistance and if not, what the resident would need to do
to make such a request. One commenter stated that it is unclear why the
ombudsman's office would need notification of every routine discharge
or transfer and that such notification should be reserved for
situations where the transfer or discharge is contested. The commenter
doubted that ombudsman offices have the capacity to receive and act
upon even a small portion of this information.
Response: We have eliminated language requiring resident consent.
We consulted with the Administration for Community Living in the
development of this proposal and believe that sending these notices to
the State Long-Term Care Ombudsman will provide added protection to the
resident and assist the State Long-Term Care Ombudsman to keep informed
of facility activities.
Comment: Some commenters were concerned that our proposed revision
at Sec. 483.15(b)(4)(ii), which changes ``may'' to ``must,'' could
imply that a facility has an obligation to always provide the most
limited notice period possible and recommend that we retain ``may.''
Response: The facility must give notice at least 30 days in advance
unless an exception is met. When an exception is met, the facility must
give the notice as soon as it can. The facility does not have the
discretion to delay as long as possible because an exception applies.
The ``must'' in this provision requires the facility to provide notice
as soon as practicable when it cannot provide notice at least 30 days
in advance of the transfer or discharge. We defer to sub-regulatory
guidance to further explicate this requirement.
Comment: Several commenters supported our proposed requirement that
residents who are being readmitted (following a hospitalization or
other absence) to a facility should be assigned to the same room he or
she was in previously, if such room is available.
Response: We thank the commenters for their support. Particularly
for residents whose home is the facility, returning to the same room is
important.
Comment: One commenter asked, since we do not regulate private-pay
rates, why we include proposed Sec. 483.15(b)(1)(i)(B), which
authorizes facilities to charge ``any amount for services furnished to
non-Medicaid residents . . .'' The commenter was further concerned that
the restriction of state law is too limited if it means solely
statutory or regulatory law specifically addressing payment by private
pay residents.
Response: As with the provision of the Social Security Act which it
tracks, Sec. 483.15(b)(2) is intended as a modifier to Sec.
483.15(b)(1), and is consistent with section 1919(4)(c)(B)(i) of the
Act, which states: ``Nothing prohibiting any charges for non-Medicaid
patients.--Subparagraph (A) [regarding identical policies and practices
regarding transfer, discharge, and the provision of services required
under the state plan for all individuals regardless of source of
payment] shall not be construed as prohibiting a nursing facility from
charging any amount for services furnished, consistent with the notice
in paragraph (1)(B) describing such charges.'' We do not intend to
limit the application of state law and proposed to add ``unless
otherwise limited by state law'' in recognition of the fact that some
states may have regulator or statutory law that addresses limits on
charges to private pay residents, consumer protection statutes that
would prohibit exorbitant charges, or case law that addresses the
concern. The Medicare program has a similar provision with respect to
equal access to care, but no specific provision regarding statutory
construction with respect to private pay residents.
Comment: One commenter suggested that we clarify that documentation
requirements in proposed paragraph (b)(2) only apply in non-emergency
circumstances.
Response: We have revised the documentation requirements at
proposed Sec. 483.15(b)(2)(ii), which we are finalizing at Sec.
483.15(c)(2)(ii), to provide greater flexibility for facilities when
providing information about a transferring resident. However, even in
an emergency, the receiving facility will need information about the
resident.
Comment: One commenter felt that requiring the physician to
directly document the information required for transfers was not
feasible, especially during an urgent transfer. The commenter suggested
we revise this section to state that the documentation must be made by
or based on information from the physician. The commenter stated that
sending the physician's previously documented history and physical,
pertinent progress notes, consultations, and laboratory tests,
supplemented by nursing documentation of the events and rationale
leading to the transfer, should suffice.
Response: We thank the commenter for their suggestion. This comment
is in reference to Sec. 483.15(c)(2)(ii), which specifies the
information that a physician must document in the resident's record
under certain transfer/discharge scenarios. We have clarified that the
physician must document the basis for the transfer, the resident's
needs that cannot be met at the facility, the facility attempts to meet
the resident's needs, and the services available at the receiving
facility to meet the resident's needs. This does not include all of the
information required by Sec. 483.15(c)(2)(iii). We agree that sending
the physician's previously documented history and physical, pertinent
progress notes, consultations, and laboratory tests, supplemented by
nursing documentation of the events and rationale leading to the
transfer is appropriate when addressing the requirements of Sec.
483.15(c)(2)(iii).
Comment: One commenter suggested that the proposed requirement at
proposed Sec. 483.15(b)(2) appeared to ignore the growing presence of
telemedicine, which is often highly effective at managing condition
changes appropriately and preventing hospitalization. Other commenters
more generally recommended that the requirements for LTC facilities
address telemedicine.
Response: We are aware of the growing presence of telemedicine and
agree it may be useful in managing condition changes and preventing
hospitalization. However, when a transfer does occur, it is important
that both the sending and receiving facilities communicate effectively
with each other, including the exchange of pertinent clinical and non-
clinical information. We will consider further addressing telemedicine
in future rule making.
Comment: Some commenters supported our proposal to require
facilities to document their attempts to meet the resident's needs, and
the service available at the receiving facility to meet the need(s).
One commenter suggested that this could result in fewer transfer and
discharge notices.
Response: We thank the commenters. We believe that this requirement
will help ensure that residents are transferred appropriately.
Comment: One commenter suggested we include a cross-reference to
Sec. 483.15(b) in Sec. 483.21(c)(1).
Response: We are finalizing proposed Sec. 483.15(b) at Sec.
483.15(c). We have added a cross-reference to Sec. 483.15(c) at Sec.
483.21(c)(1) based on the commenter's suggestion. Please refer to
section J. Comprehensive Person-Centered Care Planning (Sec. 483.21)
for a more detailed explanation.
[[Page 68735]]
Comment: Some commenters supported our proposal to require
facilities to notify a resident who has been transferred to another
facility, expecting that he/she will return to the facility, in
writing, of the reason the resident cannot be readmitted and the
information required in the notice before transfer. One commenter
believed this may reduce inappropriate discharges or transfers. Some
commenters opposed this proposal. One commenter was concerned that this
language encourages and supports the practice of facility dumping.
Response: At the time a facility determines that a resident cannot
be readmitted to the facility, the resident is effectively discharged
from the facility. We have revised our language to acknowledge this.
Specifically, we use the term ``return'' instead of ``readmit'' and we
require facilities, at the time they determine a resident cannot return
to the facility, to comply with the requirements of paragraph Sec.
483.15(c) as they pertain to discharges.
Comment: Some commenters were concerned that some facilities charge
their private pay rate to hold a bed under the bed-hold requirements
and suggested that we limit this charge to no more than the Medicaid
rate.
Response: We thank the commenters for their suggestion. We need to
further investigate and evaluate this practice. Payment rates for bed-
hold charges are beyond the scope of this rulemaking, but we will
consider addressing it in future notice and comment rule-making.
Comment: One commenter stated that it is not feasible to provide a
bed-hold notice upon transfer. The commenter stated that the focus
should be on the resident's well-being and not money.
Response: This is an existing requirement which we did not propose
to eliminate or substantially modify. We would expect all facilities to
already be in compliance with this requirement. We agree that the
resident's well-being is of utmost importance. However, the information
provided may be very important to the resident or their representative
in order to ensure their ability to return to the facility at an
appropriate time.
Comment: One commenter suggested that we create a new subsection to
address readmission after a state's fair hearing regarding entitlement
to continuing coverage or other issues.
Response: Medicaid's State plan requirements with respect to
Medicaid fair hearing processes for applicants and beneficiaries are
set forth at 42 CFR 431 subpart E. Corrective action is addressed at
Sec. 431.246.
Comment: One commenter recommended adding the specific language at
proposed Sec. 483.15(b)(5) to the definition of ``substandard quality
of care'' at Sec. 488.301.
Response: The provision in question includes information on the
contents of a discharge notice. We agree that it is important that this
information is provided to the resident and that failure to do so
should be addressed, we do not agree that this language should be
included in the definition of ``substandard quality of care''.
Comment: Some commenters requested that CMS clarify that residents
would have an appeal right of a facility's refusal to readmit a
resident after a hospitalization or other therapeutic leave. The
commenters further recommended that the regulation specify that a
facility could only refuse a bed-hold or a readmission right if the
resident's needs could not be met in the facility, the resident's
presence in the facility would endanger others' safety or health, or
the resident's condition would not allow for the facility to follow the
standard notice procedures for involuntary transfers and discharges.
The commenter stated that a hospitalization should not be a means for a
facility to evade the normal procedural requirements applicable to
involuntary transfers and discharges.
Response: As previously noted, our Medicaid State requirements with
respect to state fair hearings for applicants and beneficiaries are set
forth at 42 CFR part 431 subpart E. Provisions regarding when a hearing
is required are set out at Sec. 431.220. Medicare beneficiaries may
have separate appeal rights under Medicare. We have revised paragraph
(c)(3), ``Notice before transfer'' to better address concerns that, as
proposed, it would allow patient dumping.
Comment: One commenter suggests that at proposed paragraph (b)(8),
we require that the administrator also be required to notify staff
members of the impending closure.
Response: We thank the commenter for their suggestion. In the event
of an impending closure, facilities are required to ensure the safe and
orderly transfer, discharge and adequate relocation of all residents.
As a part of the process, the facility must have closure plans and
procedures. The plans and procedures should include, among other items,
notification of all facility staff, vendors, contractors, and unions,
as appropriate. However, we cannot require notice to staff unless such
notice is related to the health and safety of residents.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
We have withdrawn our proposal to rename proposed section
Sec. 483.15, ``Transitions of Care'' and add introductory language,
and retain the current title ``Admission, transfer, and discharge
rights.''
We corrected references to ``clinical record'' to
``medical record.''
We eliminated the introductory language which defined
transitions of care, as the term is no longer used.
We revised paragraph (a)(6) to require that a facility
disclose to a resident or potential resident, prior to admission,
notice of special characteristics or service limitations of the
facility. We redesignated proposed (b)(1) as paragraph (b), and added a
cross-reference to the definition of transfer and discharge in Sec.
483.5 and a cross-reference to resident rights at Sec. 483.10(a)(2).
We redesignated proposed (b) Transfer and discharge, as
(c), and renumbered paragraphs (ii) through (iii) to (i) through (ii).
In paragraph (c)(1)(i)(E), we have revised the provision
to state that non-payment applies if the resident does not submit the
necessary paperwork for third party payment or after the third party
payor denies the claim and the resident refuses to pay for his or her
stay.
We have clarified that paragraph (c)(1)(ii) applies unless
the failure to transfer or discharge would endanger the health or
safety of the resident or other individuals in the facility. In the
event that failure to discharge or transfer would endanger the health
or safety of the resident or other individuals in the facility, the
facility must document what danger the failure to transfer would pose.
We revised paragraph (c)(2)(ii) to clarify that the term
``documentation'' refers to the documentation specified in paragraph
(2)(i).
We revised paragraph (c)(2)(iii), documentation, to
reflect a more flexible list of elements to be documented in the
resident's medical record and communicated to the receiving health care
institution or provider. The documentation must include: Contact
information of the practitioner responsible for the care of the
resident, resident representative information including contact
information, advance directive information, all special instructions or
precautions for ongoing care, as appropriate, the resident's
comprehensive care plan goals, all other necessary information,
including a copy
[[Page 68736]]
of the residents discharge summary, consistent with Sec. 483.21(c)(2),
as applicable, and any other documentation, as applicable, to ensure a
safe and effective transition of care.
We removed the requirement for resident consent in
paragraph (c)(3).
We revised paragraph (c)(5)(iii) to remove the phrase
``expected to be.''
We revised paragraph (c)(5)(iv) to require the discharge
notice to include a statement of the resident's appeal rights,
including the name, address (mailing and email), and telephone number
of the entity which receives such requests; and information on how to
obtain an appeal form and assistance in completing the form and
submitting the appeal hearing request; and expanded paragraphs (vi) and
(vii) to include individuals with related disabilities.
We revised paragraph (c)(8) by removing ``of the residents
or other responsible parties.''
We revised ``readmissions'' to ``returns'' in paragraphs
(d) and (e).
We revised proposed paragraph (c)(3) as paragraph (e).
Paragraph (e)(1) is revised to state that ``a facility must establish .
. .'' and (e)(1)(i)(B) is revised to read ``Is eligible for Medicare
skilled nursing facility services or Medicaid nursing facility
services'' and revised proposed paragraph (c)(3)(ii) as (e)(2)(ii) to
state that if the facility that 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 the requirements
of paragraph (c) as they apply to discharges.
I. Resident Assessment (Sec. 483.20)
Current regulations at Sec. 483.20 require that a facility must
initially and periodically conduct a comprehensive, accurate,
standardized, reproducible assessment of each resident's functional
capacity and sets forth the requirements a facility must meet to be in
compliance. As part of the restructuring of subpart B, we proposed to
remove and re-designate current Sec. 483.20(k) and Sec. 483.20(l),
which set forth requirements for care plans and discharge planning, to
Sec. 483.21(b) and Sec. 483.21(c), respectively. Similarly, we
proposed to re-designate Sec. 483.20(m) as Sec. 483.20(k). The
removal and re-designation of paragraphs (k) and (l) are discussed
below in the section entitled, ``Sec. 483.21 Comprehensive Person-
Centered Care Planning.''
Existing Sec. 483.20(b) sets forth the information that must be
included in a resident's comprehensive assessment using the resident
assessment instrument. We proposed to revise this section to clarify
that the assessment is not merely for the purpose of understanding a
resident needs, but also to understand their strengths, goals, life
history, and preferences. We also proposed to revise the regulations to
specify that CMS (not the State) prescribes the resident assessment
instrument. At Sec. 483.20(b)(1)(xvi) we proposed to revise the text
from ``discharge potential'' to read, ``discharge planning'' in an
effort to encourage facilities to move the discussion of possible
discharge away from a facility's judgment and towards a resident's
preference and expectation.
Existing regulations at Sec. 483.20(e) require facilities to
coordinate assessments with the PASARR program under Medicaid in part
483, subpart C to the maximum extent practicable to avoid duplicative
testing and efforts. We proposed to add new Sec. 483.20(e)(1) and
Sec. 483.20(e)(2). In new Sec. 483.20(e)(1), we proposed to clarify
that coordination with PASARR includes incorporating the
recommendations from the PASARR level II determination and the PASARR
evaluation report into a resident's assessment, care planning, and
transitions of care. In new Sec. 483.20(e)(2), we proposed to clarify
that PASARR coordination also includes referring all level II residents
and all residents with newly evident or possible serious a mental
disorder, intellectual disability, or related conditions for level II
resident review upon a significant change in status assessment (that
is, a decline or improvement in a resident's status).
As mentioned earlier in this section, we are proposed to re-
designate existing Sec. 483.20(m) as Sec. 483.20(k). In addition, we
proposed to make a few technical corrections at proposed Sec.
483.20(k). First, we proposed to re-designate existing Sec.
483.20(k)(2) as (k)(3), and add a new paragraph (k)(2). Sections
1919(e)(7)(A)(ii) and (iii) of the Act provide exceptions to the
preadmission screening for individuals with a mental disorder and
individuals with intellectual disability for admittance into a nursing
facility. We proposed at Sec. 483.20(k)(2) to add these statutory
exceptions that were inadvertently omitted when this regulation was
initially written. Second, we proposed to add a new paragraph at Sec.
482.20(k)(4). Section 1919(e)(7)(B)(iii) of the Act requires a NF to
notify the state mental health authority or state intellectual
disability authority when there has been a significant change in the
resident's physical or mental condition so that a resident review can
be conducted. We proposed at Sec. 483.20(k)(4) to add this statutory
requirement that was inadvertently omitted when CMS first implemented
sections 1819 and 1919 of the Act). Lastly, we proposed to replace
``mental retardation'' with the term ``intellectual disability''
throughout Sec. 483.20(k), as appropriate.
Comment: Commenters supported CMS' revisions to clarify that the
comprehensive assessment of each resident extends to assessing
residents' strengths, goals, life history, and preferences. Commenters
indicated that such changes are instrumental to providing person-
centered care and engaging residents as partners in their care. One
commenter noted that information, such as life history and preferences,
may not be possible to obtain and this factor should be noted in the
regulation. Another commenter indicated that the MDS does not include
information such as resident's strengths and life history, so the
addition of this requirement is not useful.
Response: We appreciate the feedback from commenters. We agree that
information such as a resident's life history may not be readily
available; however we believe that facilities have an obligation to
make their best attempts to obtain this information because the
information could prove to be valuable to the resident's care. While
the MDS is not completely structured around a resident's life history,
the MDS does have a person-centered focus and contains questions that
ask about preferences (see Section F for activity preferences), life
history in terms of socioeconomic status, marital status, and prior
care. In addition, new Section GG of the MDS addresses a resident's
goals related to function and has a person-centered focus on items such
as pain. We understand that the MDS is an evolving assessment tool, and
we will consider the feedback from commenters for possible efforts to
improve the assessment in the future.
Comment: Commenters also asked whether the proposed changes related
to coordinating assessments with the preadmission screening and
resident review (PASARR) program under Medicaid in subpart C of part
483 will add any meaningful benefit to residents. Commenters noted that
the current PASARR reporting process is flawed and many residents are
admitted into facilities with incorrect or missing diagnoses, confusing
medication regiments, and barely controlled symptoms. Commenters
further questioned the efficacy of PASARR and whether PASARR continues
to serve a purpose for nursing home residents. Another commenter noted
that the regulation uses the acronym ``PASARR'', which is inconsistent
with the acronym that is used on the Medicaid.gov Web site.
[[Page 68737]]
Response: The regulations for LTC facilities found in subpart B
include some PASARR regulations that apply strictly to nursing
facilities. The July 2015 proposed rule provided updates to the
regulations for clarity, but did not change the PASARR program or
procedures in any state. The requirements specific to the PASARR
program are found in subpart C of part 483, which pertain to all
entities and includes the responsibilities of various state agencies.
The PASARR Technical Assistance Center (PTAC) at www.PASRRassist.org is
a useful resource for finding answers to questions regarding the PASARR
program and for providing feedback regarding how the program can be
improved. We are aware that the acronym varies between what is used in
the Code of Federal Regulations (CFR) and what is used on the Medicaid
Web site. For consistency we are continuing to use the acronym PASARR
for purposes of the CFR. We may revise the term in future rulemaking.
Comment: Several commenters requested clarification regarding the
meaning of ``direct care/direct access staff members'' as used at Sec.
483.20(b)(1)(xviii) and suggested that the term ``direct access staff''
be defined in the ``Definitions'' section. One commenter suggested that
the phrase be replaced with ``staff members of all shifts who provide
services directly to the resident.'' Another commenter indicated that
the phrase should include housekeeping and maintenance staff, as they
often have contact and interaction with residents and may be able to
provide valuable information regarding a resident's preferences and
needs.
Response: On August 4, 2015 we published a final rule entitled,
``Medicare Program; Prospective Payment System and Consolidated Billing
for Skilled Nursing Facilities (SNFs) for FY 2016, SNF Value-Based
Purchasing Program, SNF Quality Reporting Program, and Staffing Data
Collection'' (80 FR 46389), which established a definition of ``direct
care staff'' in 42 CFR part 483. When we use the term ``direct care/
direct access staff'' we are referring to those individuals who,
through interpersonal contact with residents or resident care
management, provide care and services to allow residents to attain or
maintain the highest practicable physical, mental, and psychosocial
well-being. We were not referring to individuals whose primary duty is
maintaining the physical environment of the long term care facility
(for example, housekeeping). For clarity we have removed the reference
to ``direct access staff'' at Sec. 483.20(b)(1)(xvii) and elsewhere
throughout the regulatory text as appropriate.
Comment: One commenter provided comment regarding the language at
Sec. 483.20(k)(2)(ii)(C) which indicates that the state may choose to
not apply the preadmission screening program for individuals with a
mental disorder if it is anticipated by a physician that the individual
will be in a nursing facility for less than 30 days. The commenter
noted that if it is discovered that the individual requires more than a
30 day stay, they are not protected against transfer. The commenter
suggested that CMS add language ensuring that residents affected by
this section be given the same protections as other residents with
regard to the transfer/eviction process.
Response: We appreciate the commenters' feedback. However, we
believe that the intention of the policy was to limit the program to
those with an expectation of staying 30 days or more.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following revision:
Remove the reference to ``direct access staff'' at Sec.
483.20(b)(1)(xviii).
J. Comprehensive Person-Centered Care Planning (Sec. 483.21)
In accordance with the proposed reorganization of part 483, subpart
B, we proposed to add a new Sec. 483.21 ``Comprehensive Person-
Centered Care Planning''. We proposed to retain in this section certain
existing provisions of current Sec. 483.20 as well as other additions
and revisions discussed in detail below. Currently, the requirements
for care plans and discharge planning are set out at Sec. 483.20 along
with the requirements for conducting an assessment of each resident's
health and completing the MDS. We proposed to remove the requirements
for care plans from current Sec. 483.20(k) and discharge planning in
current Sec. 483.20(l) (collectively referred to here as care
planning) and relocate them to a new Sec. 483.21. In addition to
relocating existing provisions, we also proposed to add new
requirements as discussed in detail below.
Proposed Sec. 483.21(a)
We proposed to add a new Sec. 483.21(a)(1) to the current care
planning regulations and require that facilities complete a baseline
interim care plan for each resident upon their admission to the
facility. We proposed to require that the baseline care plan be
completed within 48 hours of a resident's admission. At Sec.
483.21(a)(1)(ii), we proposed to list the information that would, at a
minimum, be necessary for inclusion in a baseline care plan, but would
not limit the contents of the care plan to only this information. In
the proposed rule, we indicated that information such as initial goals
based on admission orders, physician orders, dietary orders, therapy
services, social services, and PASARR recommendations as appropriate
would be the type of information that would be necessary to provide
appropriate immediate care for a resident. However, since care plans
are developed specifically for each resident, a facility could decide
to include additional information as appropriate.
At Sec. 483.21(a)(2), we proposed to allow facilities to complete
a comprehensive care plan instead of completing both a baseline care
plan and then a comprehensive care plan. In this circumstance, the
comprehensive care plan would be completed within 48 hours of admission
and comply with the requirements for a comprehensive care plan at
proposed Sec. 483.21(b). We discuss those requirements below.
Proposed Sec. 483.21(b)
Current regulations at Sec. 483.20(k) set forth the requirements
for developing a comprehensive care plan. As mentioned above, we
proposed to re-designate this section as a new Sec. 483.21(b). In
addition, we also proposed to add a new Sec. 483.21(b)(1)(iii),
requiring that any specialized services or specialized rehabilitation
services that a nursing facility provided pursuant to a PASARR
recommendation be included in the resident's care plan.
We also proposed to add a new Sec. 483.21(b)(1)(iv)(B) to require
that discharge assessment and planning to be a part of developing the
comprehensive care plan. We proposed to require facilities to assess a
resident's potential for future discharge, as appropriate, as early as
upon admission, to ensure that residents are given every opportunity to
attain their highest quality of life. We proposed to require at Sec.
483.21(b)(1)(iv) that facilities document whether a resident's desire
for information regarding returning to the community is assessed and
any referrals that are made for this purpose.
The IDT is responsible for developing a comprehensive care plan for
each resident at proposed Sec. 483.21(b)(2)(ii). Under current Sec.
483.20(k)(2)(ii), the attending physician, a registered nurse with
responsibility for the resident, other appropriate staff in disciplines
as determined by the resident's needs, and to the extent possible the
resident or the
[[Page 68738]]
resident's family/legal representative are all required to participate
in the IDT. We proposed to add the term ``other appropriate staff'',
which should be determined based on the specific needs of the resident
or at the request of the resident. We proposed to also explicitly
require a NA with responsibility for the resident, an appropriate
member of the food and nutrition services staff, and a social worker to
be a part of the IDT. Additionally, we proposed to revise Sec.
483.21(b)(2)(ii)(F), to provide that to the extent practicable, the IDT
must include the participation of the resident and the resident
representatives. Further, at Sec. 483.21(b)(2)(ii)(F) we proposed to
add the requirement that an explanation must be included in a
resident's medical record if the IDT decides not to include the
resident and/or their resident representative in the development of the
resident's care plan or if a resident or their representative chooses
not to participate.
Lastly, we proposed to add a new requirement at Sec.
483.21(b)(3)(iii) to require that the services provided or arranged by
the facility be culturally-competent and trauma-informed.
Proposed Sec. 483.21(c)
Current regulations at Sec. 483.20(l) set forth the requirements
for a discharge summary. As mentioned above, we proposed to re-
designate this section as a new Sec. 483.21(c). At Sec. 483.21(c)(1)
we proposed to improve the discharge planning for LTC facilities by
adding a requirement that facilities must develop and implement an
effective discharge planning process. In the proposed rule, we
indicated that the facility's discharge planning process must ensure
that the discharge goals and needs of each resident are identified.
This process should also result in the development of a discharge plan
for each resident and any referrals to local contact agencies or other
appropriate entities, should the resident have a desire to receive
information about returning to the community. We note that in
compliance with the Supreme Court Olmstead decision (Olmstead v. L.C ex
rel. Zimring, 527 U.S. 581, 119 S. Ct. 2176 (1999)), we encourage
facilities and their community partners to strive to serve individuals
in their preferred settings, when feasible. In addition, we proposed to
require that the facility's discharge planning process require the
regular re-evaluation of residents to identify changes that require
modification of the discharge plan. We proposed that the discharge plan
must also be updated, as needed, to reflect these changes. We also
proposed to require that the IDT responsible for the developing a
resident's comprehensive care plan be involved in the ongoing process
of developing the discharge plan.
Furthermore, we proposed to require that the facility consider
caregiver/support person availability, and the resident's or caregiver
support persons' capacity and capability to perform the required care,
as part of the identification of discharge needs. We also proposed to
require that the discharge plan address the resident's goals of care
and treatment preferences. In the proposed rule, we indicated that
facilities have to document in the discharge plan that a resident has
been asked about their interest in receiving information regarding
returning to the community. If the resident indicates interest in
returning to the community, the facility must document any referrals to
local contact agencies or other appropriate entities made for this
purpose and update a resident's comprehensive care plan and discharge
plan in response to information received from such referrals. Likewise,
if discharge to the community were determined to not be feasible, the
facility must document who made the determination and why. We note that
on May 20, 2016 the HHS Office for Civil Rights' issued a report
entitled ``Guidance and Resources for Long Term Care Facilities: Using
the Minimum Data Set to Facilitate Opportunities to Live in the Most
Integrated Setting'' (see http://www.pasrrassist.org/events/webinar/ocr-guidance-and-resources-long-term-care-facilities-using-minimum-data-set). We encourage facilities to review this guidance for
information to assist facilities in complying with civil rights
obligations by administering the Minimum Data Set (MDS) appropriately
so that their residents receive services in the most integrated setting
appropriate to their needs. In addition, the IMPACT Act amended title
XVIII of the Act by adding Section 1899B to require that post-acute
care (PAC) providers, home health agencies (HHAs), SNFs, inpatient
rehabilitation facilities (IRFs), and long-term care hospitals (LTCHs)
report standardized patient assessment data, data on quality measures,
and data on resource use and other measures. The IMPACT Act also
requires that this data be standardized and interoperable to allow for
the exchange of data among PAC providers and other providers. The
IMPACT Act requires the modification of PAC assessment instruments to
allow for the submission of standardized patient assessment data and
enable comparison of this assessment data across providers.
Additionally, the IMPACT Act requires that standardized patient data,
quality measures, and resource use measures, along with patient
treatment goals and preferences, be taken into account in discharge
planning.
As required under section 1899B(i)(1) of the Act, to help inform
the discharge planning process, we proposed to require LTC facilities
to take into account, consistent with the applicable reporting
provisions, standardized patient assessment data, quality measures and
resource use measures that pertain to the IMPACT Act domains, as well
as other relevant measures specified by the Secretary. For those
residents who are transferred to another LTC facility or who are
discharged to a HHA, IRF, or LTCH, we proposed at Sec.
483.21(c)(1)(viii) to require that the facility assist residents and
their resident representatives in selecting a post-acute care provider
by using data that includes, but is not limited to SNF, HHA, IRF, or
LTCH standardized patient assessment data, data on quality measures,
and data on resource use to the extent the data are available. Further,
we proposed that the facility must ensure that the post-acute care
standardized patient assessment data, data on quality measures, and
data on resource use are relevant and applicable to the resident's
goals of care and treatment preferences.
Finally, at Sec. 483.21(c)(1)(viii), we proposed that facilities
must document in the discharge plan whether a determination is made by
the resident, resident representative, or interdisciplinary team that
discharge to the community is not feasible. At Sec. 483.21(c)(1)(ix),
we proposed to require that the evaluation of the resident's discharge
needs and discharge plan must be documented, completed on a timely
basis based on the resident's needs, and included in the clinical
record. The results of the evaluation must be discussed with the
resident or resident's representative. Furthermore, all relevant
resident information must be incorporated into the discharge plan to
facilitate its implementation and to avoid unnecessary delays in the
resident's discharge or transfer.
At Sec. 483.21(c)(2), we proposed to set forth the existing
requirements for providing a resident with a discharge summary when
discharge from the facility is anticipated. At Sec. 483.21(c)(2)(i) we
proposed to revise the current requirements for the post-discharge plan
of care to specify that a recapitulation of a resident's stay include,
but not be limited to,
[[Page 68739]]
diagnoses, course of illness/treatment or therapy, and pertinent lab,
radiology, and consultation results. We also proposed to explicitly
include a requirement for facilities to include what arrangements have
been made with other providers for the resident's follow-up care and
any post-discharge medical and non-medical services as needed. These
arrangements include any community care options, resources, and
available supports and services presented and arranged by the community
care provider as needed.
At Sec. 483.21(c)(2)(iii), we proposed to add a new requirement to
require facilities to reconcile all pre-discharge medications both
prescribed and non-prescription, with the resident's post discharge
medications. We proposed that this medication reconciliation be
included as part of the discharge summary. Lastly, we also proposed at
Sec. 483.21(c)(2)(iv) to require that the post-discharge plan be
developed along with the participation of the resident and, with the
resident's consent, his or her resident representative.
Comment: Commenters supported the recognition of the need to plan
for person-centered care and the incorporation of person-centered care
into the care planning process. One commenter did not support
specifying that a resident's care plan be person-centered. The
commenter noted that the Institute of Medicine (IOM) has identified
several major quality attributes including safety, effectiveness,
efficiency, timeliness, patient-centeredness, and equitability. The
commenter suggests that the regulations should recognize all elements
of quality and not just selected ones.
Response: We appreciate the commenters' feedback. The intent of
creating a section devoted to person-centered care planning was not to
diminish the necessity of other quality attributes. We received insight
and recommendations from the OIG ((OEI-02-09-00201), https://oig.hhs.gov/oei/reports/oei-02-09-00201.asp), internal workgroups, and
stakeholders regarding the lack of resident involvement in the care
planning process. In response, we determined that it is necessary to
highlight the importance of focusing on the resident as the locus of
control when developing care plans. The regulation as a whole focuses
on the additional quality attributes mentioned by commenters; safety,
effectiveness, efficiency, timeliness, and equitability. Some of the
proposals that focus on these attributes include the addition of the
QAPI requirements, strengthening the rights of residents, and the
overall promotion of resident choice.
Comment: Commenters also supported the need to include discharge
planning as part of the comprehensive care plan. Commenters insisted
that discharge planning, including referrals for community transition,
be initiated as early in the admission process as possible to prevent
any unnecessary period of institutionalization.
Response: We agree that discharge planning should be initiated as
early as possible in the admission process. In addition to requiring
discharge assessment and planning to be a part of developing the
comprehensive care plan, we also proposed at Sec. 483.21(b)(1)(iv)(B)
that facilities document whether the facility assessed a resident's
desire to return the community. We noted in the proposed rule that the
discharge assessment may include referral to a community transition
planning agency to explore community living options, resources, and
available supports and services.
Comment: Multiple commenters questioned whether a qualified mental
health professional and a member of clergy would be required to
participate on the IDT. Commenters indicated that ``qualified mental
health professional'' should be defined and that such a requirement
would be costly, while noting that access to these professionals is
limited. Some commenters indicated that they offer clergy services to
residents and a few noted that many residents may request that their
own religious leaders come into the facility to provide them services.
Response: In the preamble discussion of the proposed rule (see 80
FR 42193) we indicated that we proposed to add the term ``other
appropriate staff'' to the requirement for the individuals who must
participate on a resident's IDT at Sec. 483.21(b)(2)(ii). We provided
examples for ``other appropriate staff'' that may be appropriate for
participation on the IDT and for inclusion in the development of a
resident's care plan. We used the examples of a mental health
professional for a resident who is diagnosed with a mental health
disorder or a chaplain based on a resident's needs. We did not require
that these individuals participate in the IDT. For clarity, we proposed
at Sec. 483.21(b)(2)(ii) that a resident's care plan must be developed
by an IDT that includes but is not limited to the attending physician,
a registered nurse with responsibility for the resident, a nurse aide
with responsibility for the resident, a member of food and nutrition
services staff, a social worker, the resident or the resident's
representative, and other appropriate staff as indicated by the
resident's needs.
Comment: Many commenters supported our proposal to add a
requirement for a baseline care plan. Commenters indicated that the
requirement for a baseline care plan recognizes the planning needed to
meet the immediate, short-term needs of newly admitted patients. One
commenter recommended that the baseline care plan also include
information about the current health condition and diagnosis of a
resident rather than be based on admission orders from another facility
in order to determine if they are still relevant. Another commenter
recommended that the baseline care plan also include information about
a resident's customary routines and preferences. A few commenters
indicated that the proposed 48 hour timeframe for completing the
baseline care plan may be problematic if an individual is admitted on a
Friday afternoon or on a holiday. Another commenter indicated that the
proposed 48 hour timeframe was too long and stated that the plan should
be developed upon admission. One commenter indicated that staff with
specific or specialized training would be required to complete the
baseline care plan and this would have a negative financial impact of
facilities.
Response: We expect that a resident's current health status and
diagnosis will be included in the admission orders. Section
483.15(c)(2)(iii) of this final rule requires that certain information
be provided to a receiving provider for a transfer including all
special instructions or precautions for ongoing care and the contact
information of the practitioner responsible for the care of the
resident. If a resident is transferred from another facility, the
requirements at Sec. 483.15(c)(2)(iii) would apply. If the information
provided is missing or unclear, the facility or admitting professional
is not precluded from following up to gain additional information.
Furthermore, we believe the information necessary to complete the
baseline care plan will be readily available or accessible through
discussions and follow-up upon admission. Therefore, we do not agree
with the commenter who indicated that additional staff with specialized
or specific training is necessary to complete the baseline care plan
causing a negative financial impact on facilities. While a resident's
customary routine and preferences provide valuable information
regarding a resident's care, we believe it would be overly burdensome
to include this information in the baseline care plan. The purpose
[[Page 68740]]
of the baseline care plan is to serve as an interim care plan within
the initial period of residency to avoid poor quality care and reduce
the risk of hospital readmission as a result of missing information.
The comprehensive care plan required at Sec. 483.21(b) is a more
detailed and exhaustive plan of care for each resident that is person-
centered and includes a resident's needs and preferences.
In addition, we understand that admissions to a facility can take
place on a weekend or over a holiday, however we expect that quality
care will still be provided including the need to formulate a plan of
care for the resident. Furthermore, regulations at Sec. 483.35(b)(1)
require the facility to use the services of a registered nurse for at
least 8 consecutive hours a day, 7 days a week. Therefore, we expect,
at a minimum, that a registered nurse will be available to develop a
baseline care plan regardless of whether it is a holiday or a weekend.
Finally, we expect that facilities will begin developing the baseline
care plan upon admission in order to meet the 48 hour timeframe. The 48
hour timeframe serves as a deadline for having the plan completed and
does not preclude facilities from completing the plan sooner. We
believe that 48 hours is an appropriate timeframe as it will allow the
facility sufficient time to obtain necessary information to complete
the baseline care plan while also addressing the need for continuity of
care during transition, a high-risk period when residents are
particularly vulnerable to adverse health events.
Comment: One commenter recommended that the language at Sec.
483.21(a) be revised to clearly state that facilities must not only
develop a baseline care plan, but must also implement the plan. The
proposed language only stated that the plan must be developed and
implied that it must also be implemented. The commenter request that
CMS clearly state that the plan must be also be implemented.
Response: We agree and have revised the language at Sec. 483.21(a)
to indicate that facilities must both develop and implement a baseline
care plan. Similarly, the proposed language only stated that the
comprehensive person-centered care plan must be ``developed.''
Therefore, for consistency, we have also revised the language at Sec.
483.21(b) to indicate that facilities must both develop and implement a
comprehensive person-centered care plan.
Comment: One commenter recommended that we consider the care plan
requirements in regard to short-stay vs long-stay residents due to the
significant variation in their treatment regimens. The commenter
suggests that residents receive a short-term interim care plan for a
period of up to 100 days from admission. Once a resident is no longer
``short-stay'' then the requirement for a comprehensive assessment and
care plan to be completed with 14 days of the change could then be
completed.
Response: We disagree with the commenter. We believe that a
comprehensive person-centered care plan should be developed for all
residents regardless of length of stay. The need for an assessment and
a plan of care is not dependent on the length of time an individual
spends in a facility. Rather comprehensive assessments and care
planning is necessary to provide all residents with the proper care and
services that will help them to attain or maintain their highest
practicable physical, mental, and psychosocial well-being.
Comment: One commenter recommended revising the language at Sec.
483.21(b)(1) by replacing the term ``timetables'' with ``timeframe'' as
they are not the same. The commenter notes that timetables are rigid
and predictable unlike timeframes. Another commenter requested that
Sec. 483.21(b)(1) be revised to also address a resident's goals not
just their needs.
Response: We have replaced the term ``timetables'' and revised the
language at Sec. 483.21(b)(1) to ``the facility must develop and
implement a comprehensive person-centered care plan for each resident,
consistent with Sec. 483.10(c)(2) and Sec. 483.10(c)(3), that
includes measurable objectives and timeframes to meet a resident's
medical, nursing, and mental and psychosocial needs that are identified
in the comprehensive assessment.''
Comment: One commenter suggested that medications or pharmacy
services should be added to the list of information necessary for
completing the baseline care plan. Another commenter suggested that the
terms ``prescriptions'' or ``recommendations'' be used in place of
``orders''. The commenter indicated that the term ``order'' is used in
the military which reinforces a resident's feelings that they are
``inmates'' at the LTC facility.
Response: Regulations at Sec. 483.21(a)(1)(ii)(B) require that the
baseline care plan include the physicians orders. We expect that the
physician orders will include any initial medications and pharmacy
services that are needed for the resident. We do not agree that the
term ``orders'' as used in ``admission orders'', ``physician orders'',
and ``dietary orders'' should be removed. The term ``orders'' is a
widely used term throughout the medical field and understood by medical
professionals of all specialties and skills.
Comment: A few commenters were against requiring that a nursing
assistant with responsibility for the resident and a member of dietary
services to be a part of the IDT, while some commenters indicated
support for the proposal. Overall commenters supported the intent of
the requirement; however commenters opposing the proposal stated that
participating on the IDT would require a significant amount of time and
would reduce the amount of time that the nursing assistant would be
available to provide direct care to residents. Commenters also noted
shortages in the number of dietary staff and their limited availability
to participate in meetings. Commenters recommended that each facility
have the flexibility to determine how best to obtain input from direct-
care staff in a manner that is more cost effective and less disruptive
to resident care. One commenter noted that they do not hire nursing
assistants to provide primary care to their Medicare Part A rehab
patients, but rather uses Licensed Practical Nurses (LPNs) and RNs to
provide care.
Response: We continue to believe that it is most appropriate for a
nursing assistant with responsibility for the resident to be a part of
the IDT. Nursing assistants spend much of their time interacting
directly with residents providing them day-to day care. In addition,
their knowledge of a resident's care plan and medical needs directly
relates to how well they can care for a resident and including them on
the IDT may also contribute to improved outcomes. For those facilities
that do not hire nursing assistants, as indicated by the commenter, we
note that the regulation at Sec. 483.21(b)(ii) also requires a RN with
responsibility of the resident to participate on the IDT as well. We
expect that these facilities will meet these additional requirements
for IDT members and be able to demonstrate their lack of nursing
assistants on staff. Likewise, we also believe that nutrition is a
fundamental part of a resident's overall health and well-being and that
a member of nutrition services will provide invaluable information to
the IDT. We do not require that any of the members of the IDT
participate in person. Facilities have the flexibility to determine how
to hold IDT meetings whether in person or by conference call. The
facility may determine that participation by the nursing assistant or
[[Page 68741]]
any member, may be best met through email participation or written
notes. We believe that this added flexibility will help to alleviate
concerns of shortage and availability.
Comment: One commenter requested that we provide an explanation for
how we expect the social worker to participate on the IDT when
facilities with 120 or fewer beds are not mandated to have a social
worker and those with more than 120 are only required to have one
social worker.
Response: We appreciate the feedback from the commenter. After
further consideration, we are removing our proposal that requires the
social worker to participate on the IDT. We agree that the proposal
would not be appropriate given that all facilities are not required to
employ a social worker. However, we strongly encourage facilities to
leverage the many valuable assets that social workers can provide to
LTC residents and their families. Often social workers can serve as a
critical link between the facility and families of the residents,
including arranging post-discharge services and addressing mental and
behavioral health care needs. In addition, social services can be used
by the facilities to promote resident choices and enhance the
individualized quality of care and life specific to each resident.
Comment: One commenter recommended that a pharmacist should also be
required to participate on the IDT to highlight the importance of
medication therapy as part of the care plan. Another commenter
suggested that an activity professional should also be required to
participate in the IDT and that many activity professionals are already
a part of the resident assessment and the IDT.
Response: We considered requiring the pharmacist to participate on
the IDT and determined that it would be overly burdensome. However, the
pharmacist is not precluded from participating in the IDT if it is
determined to be necessary for a particular resident. In addition, we
believe that the proposed requirements at Sec. 483.45 strengthen the
involvement of the pharmacist in a resident's care including the need
for a pharmacist to review the drug regimen of each resident at least
once a month and the need to review a resident's medical chart every 6
months (Sec. 483.45(c)(1) and (2)). Similarly, the activity
professional is not precluded from participating on the IDT if it is
determined to be necessary for a particular resident, even though they
are not specifically listed at Sec. 483.21(2)(ii). Those facilities
that currently involve the activity professional may continue to
include these individuals.
Comment: One commenter recommended that members of the IDT be
required to provide explanation in the resident's medical record if
they are unable to attend IDT meeting that discuss the resident.
Response: Given the diversity of long term care providers, we have
attempted to develop health and safety standards that can be applied
across all types. We want to allow facilities the flexibility to
determine how to ensure that the necessary professionals are involved
in the development of each resident's care plan. We believe that adding
a requirement for each member of the IDT to provide explanation in the
resident's medical record of when they miss a meeting would be too
burdensome.
Comment: One commenter noted that a cost is associated with having
additional individuals participate on the IDT and that CMS did not
adequately identify the costs. To reduce the cost, the commenter
suggested that instead the additional individuals could be interviewed
prior to the meeting to obtain their valuable information.
Response: In the regulatory impact analysis section of the proposed
rule we indicated that we estimated that it will cost all long-term
facilities $97,911,840 to have the additional individuals participate
on the IDT (see FR 80 42237). We envision that these staff members are
already regularly discussing resident's needs and their plans of care.
In addition, we did not specify the type of communication the IDT must
use for their meetings. In the proposed rule, we noted that to reduce
cost, the IDT members may use electronic communication to participate
in the IDT meetings. Facilities have the flexibility to determine how
to conduct the IDT meetings and incorporate the staff who have been
added to participate.
Comment: One commenter indicated that the proposed rule does not
reflect the expectation that a comprehensive person-centered care plan
must include the participation of the resident or their representative.
The commenter notes that the regulation includes the participation ``to
the extent practicable.'' The commenter noted the failure of facilities
to include resident's in the development of the care plan sited in the
July 2012 OIG report, ``Nursing Facility Assessments and Care Plans for
Residents Receiving Atypical Antipsychotic Drugs'' ((OEI-07-08-00151),
https://oig.hhs.gov/oei/reports/oei-07-08-00151.asp). The commenter
further notes that the OIG report references different types of
resident representatives including the resident's family or legal
representative.
Response: Our proposed regulations at Sec. 483.21(b)(2)(ii)(F)
would require that to the extent possible the resident and/or their
representative(s) must participate on the IDT that develops the
resident's care plan. For clarity, one example of when it may not be
practical for a resident to participate in the development of their
care plan may be in the case of a resident whose ability to make
decisions about care and treatment is impaired, or a resident who has
been formally declared incompetent by a court. We would expect that to
the extent practicable these residents would be kept informed and
consulted on personal preferences regarding their care.
In the preamble of the proposed rule (see 80 FR 42192) we noted the
gaps in care planning revealed by the July 2012 OIG report referenced
by the commenter as well as another OIG report, ``Skilled Nursing
Facilities Often Fail to Meet Care Planning and Discharge Planning
Requirements'' ((OEI-02-09-00201), https://oig.hhs.gov/oei/reports/oei-02-09-00201.asp), conducted in February of 2013. In response to these
reports and the gaps revealed, we also proposed at Sec.
483.21(b)(2)(ii)(F) that the facility must provide an explanation in
the resident's medical record if the participation of the resident and
their representative is determined not practicable for the development
of the resident's care plan. We note that the definition of ``resident
representative'' includes individuals of the resident's choice (which
may include family members) and individuals with legal standing.
Comment: One commenter recommended that the requirement for a
written explanation be provided when a resident or their representative
does not participate in the development of their care plan be removed
from the regulations and discussed in the interpretive guidance.
Response: We disagree with the commenter. The July 2012 OIG report
discussed previously and in the proposed rule (see 80 FR 42192)
revealed that 91 percent of the care plans reviewed in the study did
not contain evidence that the resident or a representative participated
in the care planning process. Given this evidence and feedback from
stakeholders, we continue to believe that residents should be involved
in making decisions about their care and that it is appropriate for
facilities to be held accountable for whether or not they actively
include the resident and their representatives in the development of
their care plan.
Comment: One commenter indicated that the resident or their
representative
[[Page 68742]]
should be invited to participate in the review or revision of their
care plan in order for it to truly be person-centered.
Response: Regulations at Sec. 483.21(b)(2)(ii)(E) require that the
resident and/or their resident representative participate on the IDT
that develops their care plan. In addition, regulations at Sec.
483.21(b)(2)(iii) require that the care plan be reviewed and revised by
the IDT. Therefore, the resident and/or their representative have the
right to participate in the review or revision of their care plan under
our proposal.
Comment: Several commenters recommended that the regulations
require a resident's participation in developing their care plan be
strengthened by adding that the facility must provide advance written
notice of the date and time of the care plan meeting, make reasonable
accommodation of the schedules of the resident and any resident
representatives invited to participate, and arrange for conference
calls or video conferencing if necessary to enable resident
participation.
Response: Regulations at Sec. 483.10(c)(2) set forth the rights a
resident has regarding their participation in the development and
implementation of their plan of care which includes, among other
rights, the right to request meetings, request revisions to their care
plan, and the right to be informed, in advance, of changes to their
plan of care. Regulations at Sec. 483.10(c)(3) provide that the
facility has a responsibility to inform the resident of their right to
participate in his or her treatment and support the resident in this
right. Therefore, we believe that the regulations address the
commenters' concerns and revisions are not necessary.
Comment: A few commenter asked that ``trauma-informed care'' be
defined as used at Sec. 483.21(b)(3)(iii) and added to the definitions
section. One commenter noted that it is reasonable to tailor
interventions to cultural preferences and difference, but indicated
that this is different from requiring facilities to adhere to concepts
such as ``culturally competent'' or ``trauma-informed''. The commenter
indicated concern for surveyors to consistently and fairly identify
whether a facility's efforts are sufficient. The commenter suggested
instead requiring that facilities be mindful of and tailor services
outlined by a resident's care plan to cultural differences and
preferences. Another commenter noted that staff would need to be
trained on trauma-informed care and that additional implementation time
should be provided to allow for such training.
Response: Culturally-competent and trauma-informed care are
approaches that help to minimize triggers and re-traumatization. Care
that addresses the unique needs of Holocaust survivors and survivors of
war, disasters, and other profound trauma are an important aspect of
person-centered care for these individuals. We noted in the proposed
rule that person-centered care that reflects the principles set forth
in SAMSHA's Concept of Trauma and Guidance for a Trauma-Informed
Approach (HHS Publication No. (SMA) 14-4884, available at http://store.samhsa.gov/shin/content/SMA14-4884/SMA14-4884.pdf, would help
advance the quality of care that a resident receives and, in turn, can
substantially improve a resident's quality of life. We do not believe
that a definition of trauma-informed care should be added to the
definitions section, but note that the interpretative guidelines and
the resource noted previously will provide further information
regarding culturally-competent and trauma-informed care. In addition,
as with all of our requirements, surveyors will use uniform sub-
regulatory guidance and surveyor training will be provided to promote
consistent enforcement. In addition, we note that the requirement
related to trauma-informed care at Sec. 483.21(b)(3)(iii) has a
delayed implementation deadline that is 3 years following the effective
date of this final rule. For more detailed information regarding the
implementation timeframe of this final rule, readers may refer to
Section II.B., ``Implementation Date''.
Comment: One commenter provided resources for facilities to refer
to for information and material addressing culturally competent and
trauma-informed care. The resources include The Council on Social Work
Education, NASW's standards and indicators for cultural competence
(available at http://www.socialworkers.org/practice/standards/index.asp), and The National Standards for Culturally and
Linguistically appropriate Services in Health and Health Care
(developed by the Office of Minority Health in HHS).
Response: We appreciate the commenter's feedback and encourage
readers to refer to these resources for information.
Comment: One commenter recommended that the final rule make a
better connection between care planning and a resident's quality of
life. The commenter suggested that facilities should be encouraged to
develop and share care planning documents that highlight resident
goals. The commenter notes that a care plan that includes a wheelchair
dependent resident's desire to gain strength to walk or a resident's
food preference would be more beneficial to a activities director and
member of food and nutrition services.
Response: Regulations at Sec. 483.21(b)(1)(iv)(A) require that a
resident's comprehensive care plan describe a resident's goals for
admission and desired outcomes. In addition, we expect that any person
who is involved in the implementation of a resident's plan of care will
have access to their care plan. In order to fulfil a resident's plan of
care it is necessary for facilities to share information with the
appropriate members of a resident's care team. We expect that
facilities are already doing this.
Comment: One commenter suggested that facilities be required to
provide copies of the care plan to residents when the plan is revised
and require facilities to ensure that the plan is written in a manner
that is understandable to the resident, not in medical jargon.
Response: Since the comprehensive care plan is intended to be a
working document that is constantly being reviewed and updated based on
the needs of the resident, we believe that it would be overly
burdensome to require facilities to make copies of the comprehensive
care plan every time it is updated. However, we note that regulations
at Sec. 483.10(c)(2)(iii) indicate that a resident has the right to be
informed, in advance, of changes made to their plan of care and
regulations at Sec. 483.10(c)(2)(v) indicate that the resident has the
right to see their care plan including the right to sign after
significant changes are made to their plan of care.
In addition, we note that as discussed previously we received
comments requesting that the right to receive a copy of the care plan
be added to the list of resident rights discussed in Sec. 483.10. In
response to these comments we have added a provision at Sec.
483.21(a)(3) that requires facilities to provide residents and their
resident representatives with a summary of their baseline care plan.
This summary must include, but is not limited to, the initial goals of
the resident, a summary of the resident's medications and dietary
instructions, any services and treatments to be administered by the
facility and personnel acting on behalf of the facility, and any
updated information based on the details of the comprehensive care
plan, as necessary. Note that this summary is subject to the provisions
at Sec. 483.10(g)(3) and must be
[[Page 68743]]
provided in a form and manner the resident can access and understand,
including in an alternative format or in a language that the resident
can understand.
Furthermore, we believe that the comprehensive care plan should
serve as an important tool for delivering patient-centered care and
encourage facilities to explore ways to allow residents, families, and
other representatives to access the care plan on a routine basis as
appropriate, for instance, using technology solutions that enable real-
time access for authorized users and dynamic updating by members of the
care team.
Comment: One commenter recommended that a new subsection be added
to the care planning regulations to require facilities to engage in an
ongoing process of advance care planning that may include the
completion of advance directives, education on the National Physician
Orders for Life-Sustaining Treatment (POLST) Paradigm, and education
regarding do-not-resuscitate and similar state-specific forms. This
process should include assisting residents and their representatives to
complete any related forms if desired.
Response: We thank the commenter for their recommendations but
decline to add additional requirements regarding advance directives and
physician orders for life-sustaining treatment at this time. We note
that advance directives are currently included in the requirements for
participation and we proposed revisions that were primarily to improve
clarity and readability (See our discussion of Sec. 483.10 Resident
Rights). We recognize that the tools and education recommended by
commenters may serve a function beyond advance directives and several
of our requirements are also intended to facilitate shared, informed
decision making and communication between health care professionals and
residents with serious, progressive illness or frailty. We would expect
that the issues that are addressed by physician orders for life-
sustaining treatment would be raised in the context of advance
directives as well in ongoing discussions related to care planning and
keeping in mind residents' goals of care and treatment preferences. To
the extent applicable, such concerns should also be reflected in
resident's discharge plan and discharge summary. All physician orders
are documented in a residents' care plans. We note that a few states
have developed POLST programs, a few states do not have such a program,
and many states are in the process of developing such programs.
Consistent with State law, it would be appropriate for facilities to
inform residents about POLST, as those tools are referenced and
recognized within the state. We note that current requirements already
require a facility to provide written information to residents that
includes a description of the facilities policies with respect to
advance directives and applicable State law.
Discharge Planning
Comment: Several commenters supported the addition of the Discharge
Planning section. Commenters noted support for involving the IDT in the
ongoing process of developing the discharge plan. Commenters also noted
that the proposed requirements are superior to existing regulations and
will help protect residents from the dangerous consequences of
unexpected discharges. A few commenters indicated that discharge
planning starts on the day of admission and is therefore a very time
consuming and lengthy process.
Response: We appreciate the commenters' feedback. We believe that
the proposed requirements help to highlight the importance of safe
transitions across care settings and support the need to safely reduce
hospital readmissions and unnecessary hospitalizations.
Comment: One commenter indicated that the discharge planning
requirements should be revised to include transfer and discharge
rights. The commenter noted that the proposed requirements may be
misconstrued to authorize facilitates to discharge residents who still
need LTC facility care after their Medicare coverage ends.
Response: Facilities are required to adhere to all of the
requirements for participation set forth in subpart B. Therefore, while
meeting the discharge planning requirements at Sec. 483.21(c),
facilities are also responsible for adhering to the requirements set
forth in Sec. 483.15 regarding admission, transfer, and discharge
rights and the requirements set forth at Sec. 483.10 regarding the
rights of a resident and a facility's responsibility to support those
rights. However, to avoid any confusion, we have added to the stem
statement of Sec. 483.21(c)(1) a cross-reference to the regulations at
Sec. 483.15 which sets forth the requirements related to transitions
of care and requires facilities to establish, maintain, and implement
identical policies and practices regarding transfer, discharge, and the
provision of services for all individuals regardless of source of
payment. Specifically, we have added language to indicate that a
facility must develop and implement a discharge planning process that
is consistent with the discharge rights set forth at Sec. 483.15(b) as
applicable.
Comment: One commenter requested that Sec. 483.21(c)(1)(i) require
that the discharge planning process address a resident's goals not just
their needs. The commenter indicated that the revision would be
consistent with Section Q of the Resident Assessment Instrument Minimum
Data Set (MDS 3.0) which focuses on residents' ability and desire to
return to the community.
Response: Regulations at Sec. 483.21(c)(1)(vi) require that the
facility's discharge planning process must also address the resident's
goals of care and treatment preferences.
Comment: Commenters supported the need to consider the availability
of family caregivers, and support persons, during the discharge
planning process since these individuals are often involved in a
resident's care following discharge from a facility. Commenters
suggested that the regulation also require that facilities note whether
an individual has a caregiver and their contact information, whether
the family caregiver has voluntarily agreed to provide assistance, and
whether the caregiver was provided with supports.
Response: We appreciate the commenters' feedback and agree that the
availability of a support system is crucial following discharge from a
facility. We believe that the requirement at Sec. 483.21(c)(1)(iv) for
a facility to consider caregiver/support person availability and the
resident's or caregiver's/support person(s) capacity and capability to
perform required care, as part of the identification of discharge
needs, reflects the concerns raised by the commenter. The
interpretative guidelines for this final rule would be the appropriate
place to discuss specific questions/discussions that can be used to
engage with the resident and their caregiver during the discharge
process.
Comment: Most commenters supported strengthening the requirements
for the discharge summary and the proposal for facilities to reconcile
all pre-discharge medications with residents' post discharge
medications and to include this information as part of the discharge
summary. The majority of commenters noted that strengthening the
discharge summary will help to avoid unnecessary medication, prevent
adverse drug interactions, and assist individuals and their caregivers
post-discharge. One commenter questioned whether the requirement to
reconcile all pre-discharge medications with a residents' post-
discharge medication would be
[[Page 68744]]
necessary in a LTC facility, given that many individuals are there for
long periods of time. The commenter suggested that this requirement
would be more appropriate for a hospital. Also, one commenter noted
that often ``pre-hospitalization medication'' is often inaccurate or
not shared with the facility. Another commenter recommended that
facilities include a rationale for all the medications that a resident
is receiving in the discharge summary. The commenter notes that pre-
discharge medications are often not needed and hospitals do not
reconsider the need for continuing medications after discharge or
advise the next facility that certain medications could potentially be
stopped, reduced, or changed. Similarly, another commenter recommended
that the discharge summary should also include the rationale for
interventions, not just the diagnosis for interventions that a resident
received. The commenter indicated that providing the rationale provides
a basis for the diagnosis and not just the conclusion. Another
commenter recommended that facilities be required to provide the
discharge summary in a written manner that is understandable by the
resident.
Response: We appreciate the feedback from commenters and agree that
strengthening the discharge summary requirements will lead to better
outcomes for residents post-discharge. We note that the discharge
summary is intended to be a recapitulation of a resident's stay and
final summary of the resident's status. We believe that including a
rationale for the medications that a resident is receiving and the
services that they received for care would be overly burdensome and
unnecessary since this information is included in a resident's medical
record and available upon request. In addition, regulations at Sec.
483.10(g) of this final rule discuss the extensive requirements that
facilities must meet related to providing residents with information.
Specifically, the regulations require the facility to ensure that
information is provided to each resident in a form and manner that the
resident can access and understand, including in an alternative format
or in a language that the resident can understand. These requirements
would have to be met by the facility in regards to the discharge
summary; therefore we believe the need to provide the discharge summary
in a written manner that is understandable by the resident is already
covered in the regulations.
We note that while some residents may reside in the facility for
lengthy periods, that is not always the case. Our regulations are
developed in an effort to address the varying services provided by a
LTC facility and the different individuals that may reside in the
facility. We have not required facilities to reconcile ``pre-
hospitalization medication'' but rather those medications a resident
was prescribed prior to being discharged from the facility to those
they are prescribed when leaving the facility. We expect that this
information is readily available and is maintained as a standard
practice by a facility in order to provide sufficient care.
Comment: One commenter indicated discontent with the requirements
added by the IMPACT Act, stating that the requirement is problematic
and unenforceable. Also the commenter noted that it would not be
practical or pertinent to use the data mandated by the IMPACT Act. The
commenter noted further that the most pertinent information to provide
to residents and families about facilities they are being transferred
to should include actual experience with care provided, such as case
reviews of individuals sent to the facility. The commenter also
questioned whether there could be a conflict of interest in requiring
facilities to recommend others. Furthermore, the commenter questioned
how facilities should use the data to inform residents and how
surveyors should judge whether facilities have done so adequately.
Response: We appreciate the feedback from the commenter and agree
that additional information may prove to be valuable to residents and
their families for purposes of effectively transitioning from one care
setting to another. However, we have proposed the requirements
specifically mandated by the IMPACT Act. Facilities have the
flexibility to present residents with additional information as long as
the statutory requirements are met. Once the requirements of the IMPACT
Act are implemented we may consider additional ways to improve the
information that residents receive. We expect that facilities will not
use the data to recommend facilities, but rather present the data to
residents and their families in order to assist them in making an
informed decision regarding the selection of a post-acute care
provider. We note that the data presented must be based on the
individual goals and preferences of the resident. In addition, we
expect that facilities will demonstrate compliance with this
requirement by showing evidence that the relevant data was presented to
a resident and their family for consideration. As with any regulation,
this final rule will also have sub-regulatory guidance that provides
additional resources for how these requirements can be met by
facilities.
Comment: A few commenters questioned whether the IMPACT Act
requirements at proposed Sec. 483.21(c)(1)(viii) apply to SNFs only or
both Medicare certified SNFs and Medicaid certified NFs. Another
commenter recommend that the statement at proposed Sec. 483.21(c)(1),
``transition of the resident from SNF to post-SNF care'', be revised to
include NFs also.
Response: The IMPACT Act specifically refers to requirements for
SNFs and at this time we are aligning our regulations with the statute.
Following the implementation of the IMPACT Act we may consider how
these requirements may also be applied to NFs. We note that the all of
the requirements in Sec. 483.21(c) apply to both SNFs and NFs with the
exception of those requirements related specifically to the IMPACT Act
at Sec. 483.21(c)(1)(viii). Therefore, to improve clarity, we have
revised the text at Sec. 483.21(c)(1) by removing the reference to
``post-SNF care''. We believe that this revision clarifies that the
discharge planning process must focus on all residents.
Comment: One commenter indicated that facilities should be required
to assist, if requested, with tasks necessary for relocation, such as
making phone calls, packing, and obtaining prescriptions.
Response: As part of the discharge summary, regulations at Sec.
483.21(c)(2)(iv) require that resident's receive a post-discharge plan
of care that is developed with the resident, which will assist the
resident to adjust to his or her new living environment. The post-
discharge plan of care must indicate where the resident plans to
reside, any arrangements that have been made for the resident's follow
up care and any post-discharge medical and non-medical services. We
believe that it would be overly burdensome for facilities to also be
required to assist residents with relocation tasks such as packing. In
addition, we do not consider packing and other relocation tasks to be
``health services'' within the meaning of the Act and therefore these
tasks would not be covered under Medicare and Medicaid.
Comment: One commenter indicated that residents should be provided
with copies of their discharge plans and the evaluation of the
resident's discharge needs.
Response: Existing regulations provide residents with the right to
[[Page 68745]]
obtain copies of their medical records, which would include their
discharge plan. Specifically, the regulations at Sec. 483.10(g)
discuss the extensive requirements that facilities must meet related to
providing residents with information. In this final rule the
regulations require facilities to allow the resident to obtain a copy
of their medical records or any portions thereof (including in an
electronic form or format when such medical records are maintained
electronically) upon request and 2 working days advance notice to the
facility. In addition, while we are not requiring the facility provide
the resident with a copy of the discharge plan, existing provisions
require the facility to provide the resident with a discharge summary
when discharge is anticipated, including the post-discharge plan of
care (see Sec. 483.21(c)(2) of this final rule).
Comment: One commenter indicated that Sec. 483.21(c)(2)(iv) should
be revised to not limit the additional individuals that may be included
in the development of the post-discharge plan of care to just a
resident's family. The commenter suggests revising the language to
state that a resident's representative or family (as defined by the
resident) should be involved.
Response: We have removed the language ``his or her family.'' The
text Sec. 483.21(c)(2)(iv) is revised to ``a post-discharge plan of
care that is developed with the participation of the resident and, with
the resident's consent, the resident representative (s), which will
assist the resident to adjust to his or her new living environment.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
At Sec. 483.21(a), we have clarified that the facility
must implement the baseline care plan.
At Sec. 483.21(a)(3), we have added a new requirement
that facilities must provide residents and their representatives with a
summary of their baseline care plan.
At Sec. 483.21(b), we have clarified that the facility
must implement the comprehensive person-centered care plan.
At Sec. 483.21(b)(1), we have replaced the word
``timetables'' with ``timeframe.''
At Sec. 483.21(b)(2)(ii)(E), we have removed the
requirement for a social worker to participate on the IDT.
At Sec. 483.21(c)(1), we have added that a facility must
develop and implement a discharge planning process that is consistent
with the discharge rights set forth at Sec. 483.15(b) as applicable.
We have also removed the reference to ``post-SNF care'' to clarify that
the discharge planning process applies to both SNFs and NFs.
At Sec. 483.21(c)(2)(iv), we have removed the language
``his or her family'' and replaced it with ``the resident
representative(s).''
K. Quality of Care and Quality of Life (Sec. 483.25)
Current regulations at Sec. 483.25 establish requirements for
numerous aspects of care and special needs of LTC facility residents
under the general heading of ``Quality of Care.'' Quality of Care and
Quality of Life are two separate and overarching principles in the
delivery of care to residents of LTC facilities. We proposed to
comprehensively revise and re-organize the current Sec. 483.25 to
ensure person-centered, quality care and quality of life for this
vulnerable population.
First, we proposed to retitle this section ``Quality of Care and
Quality of Life'' and revise the introductory paragraph to reiterate
the requirement that each resident must receive and the facility must
provide the necessary care and services to attain or maintain the
highest practicable physical, mental, and psychosocial well-being,
consistent with the resident's comprehensive assessment and plan of
care.
Second, in Sec. 483.25(a), we proposed to address the residents'
ability to perform activities of daily living (ADLs) and establish
that, based on the comprehensive assessment of a resident and
consistent with the resident's needs, choices, and preferences, the
facility must provide the necessary care and services to maintain or
improve, to the extent practicable, the resident's abilities to perform
his or her activities of daily living and to ensure that those
abilities do not diminish unless the diminution is unavoidable as a
result of the individual's clinical condition. We proposed to divide
the requirements of existing Sec. 483.25(a)(1) into proposed Sec.
483.25(a) and (b). We proposed to re-designate existing paragraphs
Sec. 483.25(a)(2) and (a)(3) as Sec. 483.25(a)(1) and (a)(2),
respectively. We proposed to add a new Sec. 483.25(a)(3) to clarify
that a facility must ensure that appropriate personnel provide basic
life support, including cardiopulmonary resuscitation (CPR) to a
resident requiring this emergency care prior to the arrival of
emergency medical personnel and subject to accepted professional
guidelines and the resident's advance directives.
In Sec. 483.25(b), we proposed to establish those activities that
we include as ADLs. These activities are currently listed in Sec.
483.25(a)(1)(i) through (v). We proposed to update the language of that
list, although the underlying activities remain unchanged. We proposed
to establish as ADLs: (1) Hygiene, such as bathing, dressing, grooming,
and oral care; (2) mobility, which includes transfers and ambulation;
(3) toileting and use of the bathroom; (4) dining, including eating
meals and snacks; and (5) communication, including speech, language and
other functional communication systems.
In Sec. 483.25(c), we proposed to relocate the current
requirements related to an activities program as required in existing
Sec. 483.15(f). We proposed to revise the language to include a
required consideration of the comprehensive assessment, care plan and
the preferences of the resident as well as potential for independence
and ability to interact with the community.
We also proposed a new Sec. 483.25(d), ``Special Care Issues,''
which we revised, re-located, and added requirements for specific
special concerns, including restraints; bed rails; vision and hearing;
skin integrity; mobility; incontinence; colostomy, ureterostomy, or
ileostomy; assisted nutrition and hydration; parenteral fluids,
accidents, respiratory care, prostheses, pain management, dialysis, and
trauma-informed care. As many of the concerns in this section were
previously included in Sec. 483.25, we discuss here only the
provisions we proposed to add or modify.
Specifically, we proposed to re-designate and revise Sec.
483.13(a), ``Restraints,'' as Sec. 483.25(d)(1). In the proposed rule,
we indicated that while we prohibit the use of any physical or chemical
restraint not required to treat the resident's medical symptoms in the
introductory language to proposed Sec. 483.12, in proposed Sec.
483.25(d)(1), we require that the facility ensure that residents are
free from restraints that are imposed for purposes of discipline or
convenience, in addition to ensuring that residents are free from
restraints not required to treat the resident's medical symptoms. In
addition, we proposed to add new requirements to specify that, if used,
restraints must be the least restrictive alternative for the least
amount of time. Further, documentation of ongoing evaluation of the
need for the restraints is required.
We proposed a new Sec. 483.25(d)(2) to establish specific
requirements when a facility uses bed rails on a resident's bed.
Specifically, we proposed to require that the facility ensure correct
installation, use and maintenance of bed rails, including attempting to
use alternatives prior to installing a side or
[[Page 68746]]
bed rail, assessing the resident for risk of entrapment from bed rails
prior to installation, reviewing the risks and benefits of bed rails
with the resident and obtaining informed consent prior to installation,
ensuring that the resident's size and weight are appropriate for the
bed's dimensions, and following the manufacturers' recommendations and
specifications for installing and maintaining bed rails.
We also proposed to revise existing language at Sec. 483.25(c) and
Sec. 483.25(k)(7) and re-designate them under a new Sec.
483.25(d)(4), ``Skin Integrity.'' In this section, we proposed to
revise the language to include a statement that care must be consistent
with professional standards of practice and to clarify that foot care
includes care to prevent complications from the resident's medical
conditions such as diabetes, peripheral vascular disease, or
immobility, and also includes assistance in making and keeping
necessary appointments with qualified healthcare providers such as
podiatrists.
In Sec. 483.25(d)(5), we proposed to address mobility both range
of motion and other limitations of mobility. We proposed to retain,
unchanged, the provisions related to range of motion, but to add a new
provision to require that residents with limited mobility receive
appropriate services and equipment to maintain or improve mobility
unless reduced mobility is unavoidable based on the resident's clinical
condition.
In Sec. 483.25(d)(6), we proposed to retain existing provisions on
urinary incontinence, add a new Sec. 483.25(d)(5)(B) to address
residents who are admitted with an indwelling urinary catheter, and add
a new Sec. 483.25(d)(6)(iii) to require that residents with fecal
incontinence receive the appropriate treatment and services to restore
as much normal bowel function as possible. We proposed to retain,
unchanged, colostomy, ureterostomy, and ileostomy care in Sec.
483.25(d)(7). In Sec. 483.25(d)(8), we proposed to modify existing
provisions on nasogastric tubes to reflect current clinical practice
and to include enteral fluids. Other methods of providing assisted
nutrition are now common practice. Therefore, we proposed to include
gastrostomy tubes with nasogastric tubes, both percutaneous endoscopic
gastrostomy and percutaneous endoscopic jejunostomy. We also proposed
to include in this paragraph requirements regarding both assisted
nutrition and hydration and specify that the facility must ensure that
the resident maintains acceptable parameters of nutritional status,
such as usual body weight or desirable body weight range and protein
levels, unless the resident's clinical condition demonstrates that this
is not possible and that the resident receives sufficient fluid intake
to maintain proper hydration and health. Additionally, we proposed to
modify the requirement for a therapeutic diet to require that the
resident is offered a therapeutic diet when appropriate, recognizing
that the resident has a right to choose to eat a therapeutic diet or
not. Finally, we proposed to specify that based on the comprehensive
assessment of a resident, the facility must ensure that a resident who
has been able to eat enough on his or her own or with assistance is not
fed by enteral methods unless the resident's clinical condition
demonstrates that enteral feeding was clinically indicated and
consented to by the resident; and a resident who is fed by enteral
means receives the appropriate treatment and services to restore, if
possible, oral eating skills and to prevent complications of enteral
feeding.
In Sec. 483.25(d)(9), we proposed to address only parenteral
fluids. We included enteral fluids in Sec. 483.25(d)(8), our proposed
provisions on assisted nutrition and hydration, as discussed earlier.
We proposed to add a new Sec. 483.25(d)(13) to ensure that
residents receive necessary and appropriate pain management. We
proposed that the facility, based on the resident's comprehensive
assessment and choices, must ensure that residents receive treatment
and care for pain management in accordance with professional standards
of practice.
We also proposed to add a new Sec. 483.25(d)(14) to ensure that
residents who require dialysis receive those services in accordance
with professional standards of practice and the residents choices.
We further proposed to add a new Sec. 483.25(d)(15) to ensure that
trauma survivors, including Holocaust survivors, survivors of abuse,
military veterans with post-traumatic stress disorder, and survivors of
other trauma receive care that addresses the special needs of trauma
survivors. Specifically, we proposed to require that facilities ensure
that residents who are trauma survivors receive care and treatment that
is trauma-informed, takes into consideration the resident's experiences
and preferences in order to avoid triggers that may cause re-
traumatization, and meet professional standards of practice.
Finally, we proposed to revise and relocate to Sec. 483.45,
``Pharmacy services'', the provisions related to unnecessary drugs,
antipsychotic drugs, medication errors, and influenza and pneumococcal
immunizations. These provisions are further discussed later in our
section on pharmacy services.
Comment: Some commenters support our proposed changes to Sec.
483.25, particularly requiring facilities to take into account a
resident's comprehensive assessment, their preferences and choices in
activities program and to provide activities that are designed to
encourage independence and interaction in the community; and including
oral care as a component of a basic hygiene activity of daily living
(ADL). One commenter particularly supports proposed regulatory
revisions related to nasogastric tubes and assisted nutrition and
hydration and notes the importance of nutritional assessment, nutrition
and hydration, and eating assistance to the physical and emotional
well-being of residents. The commenter further supports sufficient
regulatory flexibility to enable incorporation of new theories and
emerging research into practice. One commenter recommended more
specificity related to the use of nasogastric tubes. Other commenters
support the addition of CPR, oral care, fecal incontinence, foot care,
mobility, pain-management and/or trauma informed care.
Response: We thank the commenters for their support. In our
proposal, we added requirements that support person-centered care as
well as those that support the resident in attaining or maintaining his
or her highest practicable well-being.
Comment: Many commenters objected to our restructuring of this
section and felt that it was very important that quality of life be
recognized in its own regulatory section. One commenter strongly
opposed combining Quality of Life and Quality of Care into a single
requirement, believing that it would distort and erase the focus on
quality of life intended by the Nursing Home Reform Law. One commenter
suggested we restore Quality of Life as its own section that includes
language from the beginning of proposed rule Sec. 483.11; (treat each
resident with respect and dignity, etc.); self-determination language
from proposed rule Sec. 483.11(e); social services provisions
(proposed rule Sec. 483.40(d)); and safe environment language
(proposed rule Sec. 483.11(g), in addition to the language in the
proposed rule about activities. One commenter believed that the
proposed rules diluted the strength and power of the current quality of
care regulations and recommends we keep totally intact the quality of
care regulations as a separate
[[Page 68747]]
requirement. Another commenter stated that deleting quality of life
sends a strong message that quality of life is not essential. Some
commenters stated that they are troubled by the fact that CMS has
scattered the provisions included in the current Quality of Life
section throughout the proposed regulations and the only provision
remaining in the proposed Quality of Care and Quality of Life section
is proposed Sec. 483.25(c), ``Activities''. These commenters object
to, for example, moving requirements about unnecessary drugs to the
section on pharmacy services. These commenters recommend that Quality
of Life be restored as its own section that includes language from
self-determination (proposed Sec. 483.11(e)), social services
(proposed Sec. 483.40(d)), and safe environment (proposed Sec.
483.11(g)).
Response: We have retained our proposed restructuring that moves
the statements of resident rights previously contained in the Quality
of Life section to the Resident rights section, Sec. 483.10. This
section now also includes all of the provisions in proposed Sec.
483.11, Facility responsibilities. However, we have separated quality
of life and quality of care by establishing a new Sec. 483.24, Quality
of life, which will establish quality of life as a separate overarching
principle in the delivery of care to residents of LTC facilities.
Section 483.24 contains proposed Sec. 483.35(a), (b), and (c), which
addresses requirements related to activities of daily living, basic
life support, and activities programs. Proposed Sec. 483.25(d),
special care issues, is retained in Sec. 483.25, ``Quality of care''.
With regard to other specific sections, please also see our discussions
at sections N. ``Behavioral health services'' (Sec. 483.40) and O.
``Pharmacy services'' (Sec. 483.45) of this preamble.
Comment: Some commenters suggested CMS require additional training
topics related to quality of care and quality of life for facility
staff. One commenter also recommended that facilities be required to
use a standardized care needs assessment tool that the public has an
opportunity to comment on prior to adoption. The commenter recommends
that this tool should include a specific space for facility staff to
document why the loss of functioning was ``demonstrably unavoidable'';
and facility should set up an internal review process that reviews this
section to determine if more training is needed on conditions that
could have been improved or maintained with current standards or
assistive technology or mental health services and supports.
Response: Please see our discussion of Sec. 483.95 in section Z.
of this preamble for comments and responses related to training,
including recommendations for additional training topics.
Comment: A number of commenters felt that CMS should further
address staffing. One commenter stated that residents cannot maintain
or improve their highest level of well-being without good staffing
practices and stated that CMS should reinforce the need for strong
staffing practices in the proposed rule. Commenters suggest that good
staffing practices include adequate numbers of competent, consistently
assigned staff working well with the whole care team. Some commenters
suggested mandating consistent or dedicated staffing. One commenter
suggested regulatory language requiring staffing practices that
maximize competency, continuity, and coordination of care.
Response: Please see section K. ``Nursing services'', for our
discussion of staffing.
Comment: Some commenters recommend wording changes to make the
language less institutional.
Response: We have reviewed and considered each suggested wording
change, but do not address each one individually. Where we felt the
wording change improved clarity, we have accepted it. In one case, we
added the term ``walking'' in addition to the word ``ambulation''
rather than as a replacement because, while ``walking'' is a less
institutional term and therefore may be preferable, ``ambulation'' has
other meanings, such as in reference to a resident in a wheelchair,
where it means the ability to move around.
Comment: One commenter expresses concerns about ``odd
terminology'', stating that CMS gives ``titles'' to activities of daily
living (ADLs), proposed Sec. 483.25(b)--for example, ``hygiene'' to
refer to bathing, dressing, grooming, and oral care. The commenter
stated that the term ``hygiene'' does not provide further explanation
of the requirements and interferes with ease of reading and
understanding. The commenter further suggests that the new modifiers
for activities of daily living are unnecessary and should be deleted.
Response: We believe the titles are useful to group similar
activities and have retained them as proposed.
Comment: One commenter stated that moving ``activities'' at
proposed Sec. 483.25(b) from ``quality of life'', Sec. 483.15(f), to
this new section, with its broader language, is not objectionable, but
listing professional credentials in this regulation is odd. The
commenter stated that all requirements for staff credentials should be
located in a single section and recommended that we retain proposed
Sec. 483.25(b)(1), but move proposed Sec. 483.25(b)(2) to a new
section addressing staff credentials. Another commenter supported
language added to this section regarding an ongoing program to support
residents in their choice of activities, both group and individual, and
the requirement for a facility to encourage independence and
interaction in the community.
Response: We often list credentials for specific staff in the
sections that address the care the staff provide. For example, we do
this for Food and Nutrition Services, Infection Control, and for
certified nursing assistants under Nursing Services. We believe it is
appropriate to include the credentials for an Activities Director in
the section where the activities program is addressed. However, we will
evaluate the suggestion for a single section to address all staff
credentials and consider it for future rule-making.
Comment: Many commenters recommended that we add board certified
music therapist to the list of qualified professions who could serve as
an activities program director. These commenters stated that the
educational requirements for a music therapist prepare them to become
excellent activities directors. Others suggested that an individual
with a Master's degree in gerontology or aging studies, or other
degree-based qualifications, be added to the list of qualified
professionals who could serve as an activities program director. Some
commenters did not want us to change the requirements, fearing that
this would eliminate qualified candidates. Some commenters wanted to
ensure that we did not change the requirements to specify a specific
recognized accrediting body, while others suggested specifying a
specific recognized accrediting body. Additional suggestions and
options were offered as well.
Response: We thank all the commenters for responding to our
solicitation of comments regarding whether the requirements for the
director of the activities program remain appropriate and what should
serve as minimum requirements for this position. We have reviewed all
of the comments and believe we need additional time to further evaluate
the many suggestions we received. We are not making any changes at this
time.
Comment: A commenter felt that the section on ADLs needed an
introductory statement as to the expectations for the facility related
to the ADL list.
Response: We have added introductory language to state that the
[[Page 68748]]
facility must provide care and services in accordance with paragraph
(a) for the listed activities of daily living
Comment: One commenter stated that in proposed Sec. 483.25(d) CMS
has gathered an odd collection of care concerns and labeled them as
``special care issues,'' some of which are issues common to most
residents while other issues are truly ``special,'' in the sense of
less common. The commenter recommends that care requirements common to
all or most residents should be separately identified, without the
modifier of ``special care needs'' and the term ``special care issues''
should be restricted to issues that are truly special, in the sense of
uncommon. The commenter suggests that the subsections under the
``Quality of Care'' requirement should be retained in the order that
they are in current Sec. 483.25 and language in proposed Sec.
483.25(a) should be incorporated into the preliminary language of the
regulation so that the current order can be retained.
Response: In order to more clearly express our intention, we have
eliminated the modifier ``special care needs'' and revised this section
in consideration of this and other comments.
Comment: Some commenters felt that CMS should provide more
information/clarification related to colostomy, ureteostomy, or
ilesostomy; parenteral fluids; prosthesis; pain management; and
dialysis. In addition, two commenters stated that ``urostomy'' is the
correct terminology and should be used instead of ureterostomy.
Response: We thank the commenter for their suggestion. We have
changed ``ureterostomy'' to ``urostomy.'' We have also added language
to final sections (f) ``Colostomy, urostomy, or ileostomy care,'' (h)
``Parenteral fluids,'' (j) ``Prostheses,'' (k) ``Pain management,'' and
(l) ``Dialysis.'' For each section, we have specified that care must be
provided consistent with professional standards of practice applicable
to that care. We defer to sub-regulatory guidance for additional
detailed discussion.
Comment: Some commenter suggested CMS add other documents besides
advance directives to the requirements relating to providing basic life
support.
Response: We have added related physician orders to paragraph
(a)(3). We defer to sub-regulatory guidance for additional discussion.
Comment: One commenter requested that CMS clarify that, where CMS
proposes that a resident receive care that is consistent with
professional standards of practice, a standard of care that is
``consistent with professional standards of practice'' is not to be
interpreted as a maximum standard or to limit care options for
residents with complex conditions or unique needs. The commenter urged
CMS to clarify that when providing care that is consistent with
professional standards of practice, the care also take into account
individual residents' needs and complexity of individual residents'
conditions.
Response: The requirement that that care be provided in accordance
with professional standards of practice is neither a maximum standard
nor a limitation on care options. We would expect the resident and/or
his or her representative to be informed about care and treatment as
required by Sec. 483.10(c), as contained in the comprehensive care
plan. The care and services provided to the resident must be provided
in a manner that meets the professional standards and principles that
apply to such care and services and to the professionals that provide
those services.
Comment: One commenter stated that some provisions are already
incorporated into the current survey process and can be implemented one
year following adoption of the final rule, including proposed Sec.
483.25(a)(3), and (d)(13).
Response: We deliberately included a number of provisions in the
regulations that were previously in sub-regulatory guidance as we felt
that doing so strengthens the requirements for some very important
issues. Please refer to our discussion in Section B, Implementation,
for additional information.
Comment: Some commenters expressed concern that facilities would
have to hire additional staff in order to meet proposed requirements
that residents be assisted to make appointments and to arrange for
transportation to appointments.
Response: While we have revised and reorganized this section, the
requirement to provide residents with assistance in making appointments
and arranging transportation is an existing obligation. Similarly,
while prior regulations did not explicitly require that facilities
assist individuals to make podiatric appointments, facilities were
already required to ensure that residents received proper treatment and
foot care. Furthermore, we understand that some facilities have
arrangements to provide these services on site, providing added comfort
and convenience for residents while negating the need for at least some
work to make transportation arrangements. We do not agree that our
revised requirements impose a significant new burden.
Comment: Several commenters commented on our proposed requirements
regarding bed rails. One commenter stated that proposed Sec.
483.25(d)(2), as written, declares that the existence of a side or bed
rail is a deficient practice and recommends we amend the provision to
read ``engaging'' a side or bed rail rather than ``installing'' a side
or bed rail. The commenter stated that deficient practice is reflected
by not implementing/attempting alternatives prior to the use or
engagement of a side or bed rails. Another commenter was concerned that
this provision lacks adequate qualifiers to all for various real-life
situations and puts the facility in violation of the requirement when
no viable alternative exists and suggests specific revisions to the
regulatory language. Other commenters recommended extensive provisions
addressing bed rails as restraints and the criteria to use bed rails
when not used as a restraints. Some commenters objected to our
including requirements related to bed rails. One stated that there was
no clinically justifiable reason to use bed rails. Others stated that
few LTC facilities use bed rails. Other commenters stated that some
beds have quarter rails to house the bed and TV controls and it would
be burdensome to take these on and off as residents are admitted and
discharged. Many commenters supported the requirement that facilities
try alternatives to bed rails.
Response: We thank the commenters for their suggestions and
support. Proposed paragraph (2) sets out several requirements to be met
before the bed or side rail is installed. We believe these requirements
are important for resident safety before installation can create an
expectation of use. We have re-designated this as paragraph (n) and,
based on a combination of commenter suggestions, revised it to require
that the facility must attempt to use appropriate alternatives prior to
installing a side or bed rail, then to require that if a side or be
rail is used, such use must meet specific requirements. In addition, we
have reworded the provision so that the bed's dimension is appropriate
for the resident's size and weight rather than the resident's size and
weight being consistent with the bed's dimension, as recommended by a
commenter. We defer additional discussion to sub-regulatory guidance.
We expect that surveyors will conduct a fair and consistent review of
these situations based on the facts of each case.
[[Page 68749]]
Comment: One commenter objected to the addition to proposed Sec.
483.25(d)(8)(i) of ``or resident preferences indicated otherwise'' and
recommended we delete it. The commenter was concerned that a facility
could use this as a means to not meet a resident's nutritional needs.
The commenter stated that the facility would need to demonstrate that
it served nutritious and appetizing food; identified the resident's
food preferences; offered appropriate alternative foods to the
resident; had sufficient numbers of trained staff to assist the
resident in eating; maintained a pleasant environment for meals;
provided assistive devices, as needed; addressed the resident's mental
health needs; had received a medical determination from the resident's
physician that the resident's medical condition indicated that weight
loss was unavoidable; and took other necessary steps before it could
justify not meeting a resident's nutritional needs.
Response: This provision addresses assisted nutrition and
hydration, and, like all treatments, residents have the right to accept
or refuse. Accepting a resident's refusal, or deferring to their
documented preferences, does not absolve a facility of its
responsibilities to provide adequate nutrition or permit the facility
not to meet a resident's nutritional needs. It does recognize that a
competent resident has the right to make choices about assisted
nutrition and hydration and that there are circumstances where failure
to maintain acceptable parameters of nutritional status are not a
reflection of failure(s) of care.
Comment: Several commenters supported our proposal to add trauma-
informed care at Sec. 483.25(d)(15). Some commenters suggested
additional related requirements, including adopting trauma informed
care approaches, and requiring facilities to provide training regarding
trauma informed care to all staff at all levels. Some commenters
recommended deleting this provision entirely. One commenter stated that
providing ``trauma-informed care'' is prudent and extremely important
for those individuals who have experienced trauma in their lives and
continue to live with residual effects from these experiences, but had
several concerns about the requirement. The commenter noted that the
link to the SAMHSA guidance does not work, and furthermore, SAMHSA's
mission is focused on recovery and resilience. In addition, the
reference to utilizing ``professional standards of care'' does not
provide specific professional standards of care for individuals who are
trauma survivors. Without specific identification of recognized and
acceptable standards, determining compliance with this requirement will
be varied and subjective. Furthermore, there was no clear definition
provided for the term ``culturally competent care.'' Another commenter
stated that there are other issues and concerns that are equally or
more important to other individuals with other conditions that are not
specified in regulation or mentioned in guidance.
Response: Culturally-competent and trauma-informed care are
approaches that help to minimize triggers and re-traumatization,
including care that addresses the unique needs of Holocaust survivors
and survivors of war, disasters, and other profound trauma are an
important aspect of person-centered care for these individuals. We
noted in the proposed rule that person-centered care that reflects the
principles set forth in SAMSHA's Concept of Trauma and Guidance for a
Trauma-Informed Approach, HHS Publication No. (SMA) 14-4884, available
at http://store.samhsa.gov/shin/content/SMA14-4884/SMA14-4884.pdf,
would help advance the quality of care that a resident receives and, in
turn, can substantially improve a resident's quality of life. We were
able to access this document via the link provided; alternatively, it
is available through the SAMSHA.gov Web site by clicking on
``publications'' on the upper right and searching for SMA 14-4884. As
discussed in our comments and responses section H, ``Comprehensive Care
Planning,'' we do not believe that a definition of trauma-informed care
should be added to the ``Definitions'' section, but note that the
interpretative guidelines and the resource noted previously will
provide further information regarding culturally-competent and trauma-
informed care. In addition, as with all of our requirements, surveyors
will use uniform sub regulatory guidance and surveyor training will be
provided to promote consistent enforcement. Please see our discussion
of trauma-informed care in section J. ``Comprehensive care planning.''
We note in the comments and response for that section that one
commenter provided resources for facilities to refer to for information
and material addressing culturally competent and trauma-informed care.
The resources include The Council on Social Work Education (see http://www.cswe.org), NASW's standards and indicators for cultural competence
available at http://www.socialworkers.org/practice/standards/index.asp,
and The National Standards for Culturally and Linguistically
appropriate Services in Health and Health Care developed by the Office
of Minority Health in HHS (see https://www.thinkculturalhealth.hhs.gov/index.asp).
Comment: One commenter recommended we amend the requirement to
provide trauma-informed care, Sec. 483.25(d)(15), to say ``When a
facility is aware that a resident/patient is a trauma survivor, the
facility must ensure these residents/patients receive care that takes
into account the residents' experiences and preferences in order to
eliminate or mitigate triggers that may cause re-traumatization of the
resident.''
Response: We do not agree with adding the qualifier ``when a
facility is aware'' nor do we agree with deleting reference to
culturally competent, trauma-informed care in accordance with
professional standards of practice. Please see our earlier discussion
in this section as well as the discussion in section J, ``Comprehensive
Care Planning.''
Comment: One commenter suggested that any requirements related to
trauma-informed care have a 5-year phase in period.
Response: Please see our discussion of implementation deadlines in
section II.B, ``Implementation.''
Comment: One commenter stated that the current regulation, at Sec.
483.25(c)(1), begins with the statement that the resident who enters
the facility without pressure ulcers should not develop them unless the
resident's clinical condition demonstrated that they were unavoidable,
but the proposed Sec. 483.25(d)(4)(i)(A) omits that language entirely,
beginning with the requirement that the facility provide care to
prevent development of pressure ulcers. The commenter stated that
current language should be restored as a new (A) with the proposed
subsections (A) and (B) moved to (B) and (C), respectively.
Response: The commenter is correct that the proposed language omits
the statement ``the resident who enters the facility without a pressure
ulcer.'' The remaining language is included in the proposed provision.
Any resident at any time who does not have a pressure ulcer, even if
the resident had one upon admission and it has resolved, must receive
care and services to prevent the formation of pressure ulcers unless
the resident's clinical condition demonstrates that the development of
pressure ulcers was unavoidable. Similarly, any resident who has a
[[Page 68750]]
pressure ulcer, no matter when or why it developed, must receive care
and services to promote healing, prevent infection, and prevent new
ulcers from developing.
Comment: One commenter stated that proposed paragraph (d)(5)
mobility should be correctly title ``range of motion'' as in the
current rule.
Response: We disagree. Range of motion, defined as the full
movement potential of a joint, is important to mobility, but it does
not encompass the full extent of the proposed provision. Proposed
paragraph (d)(5) includes in (i) and (ii) requirements to ensure that a
resident does not lose range of motion and, if the resident has a
limited range of motion, receives services to, at a minimum, maintain
existing range of motion and, if feasible, to improve range of motion.
The proposed provision goes on to address mobility, defined as the
ability to move, and to require that residents with limited mobility
receive appropriate services to maintain or improve his or her
mobility. Each of the three provisions is about a resident's ability to
move, thus we have included them together is a provision about
mobility.
Comment: A number of commenters expressed concern about our
provisions related to the use of restraints in facilities. One
commenter stated that although new language about using the least
restrictive alternative for the least amount of time and documenting
ongoing evaluation of the need for the physical and chemical restraints
was helpful, the proposed regulation does not adequately protect
residents. Several commenters suggested a separate section specifically
addressing restraints. Some commenters recommended additional
requirements such as reporting any death which may have resulted from
the use of a restraint; an environmental assessment; an in-person
evaluation by a physician; informed consent; an in-person evaluation by
the resident's physician; one-on-one monitoring; or release and
monitoring when the use of restraints is indicated. Some commenters
noted that there are more extensive requirements for other provider
types (community mental health centers, hospitals). Some commenters
requested that we explicitly include bed rails as restraints and
strengthen our provisions related to bed rails. Some commenters
suggested we only allow the use of bed rails if the resident requests
them for mobility or other assistance and any time a bed rail is
considered, a safety assessment be conducted using protocols that
require an evaluation of residents and bed systems by an
interdisciplinary team that includes specific professional staff. Some
commenters requested that regulations more explicitly address chemical
restraints and that we specifically address the use of wheelchairs as a
restraint. One commenter suggested we relocate requirements related to
restraints and bed rails to the section on facility responsibilities
because inclusion here could imply they were a special treatment or
care. The commenter also recommended addressing bed rails as restraints
because not doing so implies that bed rails are not restraints. One
commenter stated that restraint should be a requirement separate from
quality of care because restraints are not an appropriate method for
providing care. Other commenters discuss restraints in the context of
trauma-informed care.
Response: We acknowledge the commenter's concern that including
restraints in this section could create an impression that the use of
restraints is acceptable. We have relocated this provision to Sec.
483.12(a) and added a cross reference to Sec. 483.12(a)(2) in Sec.
483.10(e)(1) to ensure that the resident's right to be free of
restraints is considered in the context of the requirement now in Sec.
483.12(a)(2). We will continue to review our provisions related to
restraints and will consider adding additional, more prescriptive
requirements through future notice and comment rule-making.
We considered similarly relocating our provision regarding bed
rails, but do not believe that these requirements as clearly belong in
Sec. 483.12. Therefore, we have retained this provision as Sec.
483.25(n).
Comment: One commenter suggested we retain assisted nutrition and
hydration, prostheses, dialysis, and trauma-informed care as special
care issues and move the rest of the issues to another part of the
section.
Response: We thank the commenter for their suggestion. We have
modified this section based on other comments, however, believe it is
appropriate to retain all of the proposed requirements in the section.
Comment: One commenter recommended adding a separate section on
honoring sleep.
Response: We thank the commenter for their suggestion. We currently
address sleep and wake times at Sec. 483.10(f)(1). We defer additional
discussion to sub-regulatory guidance.
Comment: Commenters supported the added specificity of proposed
requirements regarding skin integrity, foot care, incontinence, and
enteral feeding.
Response: We thank the commenter for their support. We believe the
proposed additions will assist in ensuring that LTC facility residents
receive necessary care.
Comment: One commenter suggested that in proposed paragraph (d)(4)
we clarify that the standard is professional current clinical standards
of practice.
Response: We do not agree that this clarification is necessary. The
statement ``professional standards of practice'' applies whether or not
the issue is clinical, as in direct care delivery, or non-clinical,
such as some administrative or physical plant concerns might be
considered. In addition, ``professional standards of practice''
inherently means the professional standards that apply at the time that
the care or service is delivered.
Comment: Some commenters supported our proposed provision (d)(6)
regarding incontinence. One commenter stated that the urinary tract
includes more than just the bladder (that is, kidneys, ureters,
urethra, prostate) and that various conditions and factors (for
example, delirium, metabolic disorders, functional impairments,
diuretic use) may affect continence. The commenter suggested that
proposed (d)(6)(ii)(C) be revised to more accurately reflect that the
goal is to try to improve continence by stating that the resident who
is incontinent of bladder receives appropriate treatment and services
to prevent urinary tract infections and to restore continence to the
extent possible. Another commenter suggested we require that if a
resident becomes incontinent, a determination regarding why be made. A
different commenter recommended requiring that a resident's bathroom
needs be anticipated and met to reduce the development of incontinence
on because the resident did not get the help she or he needed to get to
the bathroom on time.
Response: We thank the commenters for their suggestions. We have
modified proposed Sec. 483.25(d)(6)(ii)(C), finalized at paragraph
Sec. 483.25(e)(2)(iii), to focus on continence as suggested. We
require that a resident who is continent of bladder receives services
and assistance to maintain continence unless his or her clinical
condition is or becomes such that continence is not possible to
maintain. We believe that in order to meet this requirement, both
assistance to use the bathroom to prevent incontinence in a continent
resident and an assessment of the cause of new incontinence would be
necessary. We defer additional discussion to interpretive guidance.
Comment: One commenter noted that nutrition status is complex and
[[Page 68751]]
recommended revising paragraph (d)(8) to include total parenteral
nutrition, to eliminate protein levels as a parameter of nutritional
status based on recent research, to add electrolyte balance as a co-
equal concern to hydration, and to add the qualifier ``unless the
resident's clinical condition demonstrates that this is not possible or
resident preferences indicate otherwise.'' The commenter stated that
serum protein levels have significant limitations as a parameter of
nutritional status and should not be listed as a measure. The commenter
further stated that hydration maintenance is about more than just
providing fluids, and should consider electrolyte balance as well and
that some dehydration is unavoidable such as occurs with residents on
palliative care who are not eating and drinking. Another commenter
stated that this proposed provision inappropriately combines two
existing sections, mislabeling them, and minimizing the critical
importance of nutrition and hydration for residents. The commenter
stated that CMS should restore the original two separate regulatory
requirements.
Response: We thank the commenters for their suggestions and agree
that nutrition status is complex. We have eliminated the requirement
for protein levels and added electrolyte balance. We believe it is
appropriate to address parenteral fluids separately, as this involves
the intravenous infusion of fluids. We also believe the requirements,
as proposed, acknowledge the potential for unavoidable variations and
recognize the resident's right to refuse treatment. We defer any
additional discussion to sub-regulatory guidance. We disagree that
nutrition and hydration should be two separate sections. Fluids are a
source of nutrition and food is a source of hydration.
Comment: One commenter stated that the proposed change in Sec.
483.25(j) from providing sufficient fluids to offering sufficient
fluids is objectionable.
Response: This change was proposed in response to anecdotal
accounts of fluids being placed in a resident room without ensuring
that the resident was actually able to drink them. While residents'
have the right to refuse to drink the fluids, it is not enough for a
facility to simply place fluids in a resident room. We would expect
that the fluids actually be offered to the resident and assistance
provided so that the resident can drink, if they so desire.
Comment: One commenter recommended that proposed Sec. 483.25(c) be
amended to read: ``Based on the comprehensive assessment and care plan
and the preferences of each resident, the home/community must provide
ongoing opportunities for engagement with life or meaningful engagement
via group, individual and independent opportunities designed to meet
the interests of and support the physical, mental, and psychosocial
well-being of each resident, encouraging both independence and
interaction in the community.'' This change in language would remind
everyone that individual resident preferences for engagement in
meaningful ways should be identified and followed.
Response: We agree and thank the commenter for their support. We
have incorporated the commenter's suggestion and are finalizing this
provision at Sec. 483.24(c)(1).
Comment: One commenter suggested addressing the use of personal
bed, chair, floor mat and laser alarms as devices with restraint
qualities.
Response: We discuss alarms in section E of this preamble. As noted
there, if such devices are used as restraints, their use must comply
with our requirements related to restraints.
Comment: One commenter requested that we clarify that a new
intervention is not required after each fall or incident, but that a
root cause analysis should be conducted.
Response: We agree that the response to a fall or incident should
be episode specific, that a new intervention may not always be
necessary, and that frequently a root cause analysis will be necessary.
We defer to sub-regulatory guidance for additional discussion.
Comment: One commenter supported our proposed change that a
resident be offered a therapeutic diet instead of mandating a
therapeutic diet.
Response: We thank the commenter for their support and note that
this change is consistent with our person-centered approach.
Comment: Some commenters suggested that CMS address wheelchair use,
including need, premature use, a plan of care for maintaining strength
and mobility, and other concerns.
Response: We thank the commenter for these suggestions. We believe
that these issues should be addressed in the person-centered plan of
care. However, we will further evaluate these concerns and consider
them for inclusion in future notice and comment rule-making.
Comment: Some commenters requested that we add a new section to
special care issue to address dementia care. Others suggested that
requirements for dementia care be added to the quality of care
requirements. Commenters offered suggestions for such a section,
including current language from sub-regulatory guidance.
Response: We thank the commenters for these suggestions. We
considered, but did not propose dementia-specific provisions for this
rule. We agree that residents with dementia have specific needs as a
result of their disease. Resident rights, person-centered care
planning, and other provisions of this subpart work together to require
that the individual's needs be met. Even among residents who have this
diagnosis in common, needs may differ significantly. Residents with
different diagnoses may benefit from similar care. We expect all
residents to receive care to meet their needs, based on a
comprehensive, person-centered care plan that reflects the resident's
needs, goals, and preferences. We believe that the person-centered
approach to care reflected throughout these regulations will best serve
individual residents based on individualized diagnosis and needs. We
will continue to evaluate this issue and may consider it for inclusion
in future notice and comment rule-making.
Comment: One commenter discussed the importance of a culture of
safety and recommended that we incorporate a new section to address
worker and resident safety issues, including safe resident handling and
lifting, hazard protections, workplace violence, and other safety
issues.
Response: We thank the commenter for their suggestions. A culture
of safety and worker safety are important issues. However, many of the
suggestions provided are outside the scope of this regulation and many
are already regulated by the Occupational Safety and Health
Administration. Moreover, our statutory authority is limited to
regulations that protect the health and safety of residents; we hope
that our rules also protect the safety and well-being of staff and
employees, but such results cannot be the basis for our authority. We
will continue to evaluate the best way to identify and incorporate
those elements that may be appropriate for incorporation into
requirements for participation and consider them in future rule-making.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
We have established Sec. 483.24, Quality of life, which
contains proposed Sec. 483.35(a), (b), and (c) re-designated as Sec.
483.24(a), (b), and (c), respectively, and revised the introductory
language to clarify that quality of life applies to all care and
services provided to facility residents.
We have added an introductory statement to new paragraph
Sec. 483.24(b).
[[Page 68752]]
We have added the word ``walking'' in addition to
``ambulation'' at Sec. 483.24(b)(2).
We have revised the title of Sec. 483.25 to read
``Quality of care,'' eliminated the modifier ``special care issues,''
revised the introductory language to clarify that quality of care
applies to all care and services provided by the facility, and re-
designated Sec. 483.25(d)(3) through (15) as Sec. 483.25(a) through
(m), respectively.
We have added ``related physician orders'' to paragraph
Sec. 483.24(a)(3) regarding the provision of basic life support.
In Sec. 483.25, we removed (d)(1) relating to restraints
and relocated it at Sec. 483.12(a)(2).
We have re-designated proposed Sec. 483.25(d)(2) Bed
rails as paragraph Sec. 483.25(n), added an appropriateness qualifier
to the regulatory text and reworded the provision about the bed's
dimension for clarity.
We have re-designated Sec. 483.25(d)(6)(ii)(C) as Sec.
483.25(e)(2)(iii) and revised it to state ``restore continence to the
extent possible.''
We have added language to Sec. 483.25(f), (h), (i), (j),
(k), and (l) to require that care be provided consistent with
professional standards of practice applicable to that care as well as
the comprehensive person-centered care plan, and the residents' goals
and preferences.
In Sec. 483.25(g)(1), we have eliminated the reference to
protein levels as a nutritional parameter and add reference to
electrolyte balance.
L. Physician Services (Sec. 483.30)
Under the reorganization discussed earlier, requirements regarding
physician services currently located at Sec. 483.40 were proposed to
be moved to new Sec. 483.30. We proposed to retain the current
requirements but proposed a few additions as discussed below.
We proposed to revise the introductory text of Sec. 483.30 to
specify that, in addition to a physician's recommendation that the
individual be admitted to a facility, a physician, a physician
assistant, a nurse practitioner, or a clinical nurse specialist must
provide orders for the resident's immediate care and needs.
We also proposed to add a new Sec. 483.30(e) to require that a
facility, prior to an unscheduled transfer of a resident to a hospital,
provide or arrange for an in-person evaluation of a resident, to be
conducted expeditiously, by a physician, a physician assistant, nurse
practitioner, or clinical nurse specialist prior to transferring the
resident to a hospital, unless the transfer is emergent and obtaining
the in-person evaluation would endanger the health or safety of the
individual or unreasonably delay the transfer.
At Sec. 483.30(f)(2), we proposed to provide the physician with
the flexibility to delegate to a qualified dietitian or other
clinically qualified nutrition professional the task of writing dietary
orders, to the extent the dietitian or other clinically qualified
nutrition professional is permitted to do so under state law.
Similarly, at Sec. 483.30(f)(3), we proposed to provide the
physician with the flexibility to delegate to a qualified therapist
under proposed Sec. 483.65 below the task of writing therapy orders,
to the extent that the therapist is permitted to do so under state law.
Comment: We received a comment in support of our revision to the
introductory language to Sec. 483.30 allowing a physician, physician
assistant, nurse practitioner, or clinical nurse specialist to write
orders for a resident's immediate care and needs upon admission. The
commenter stated that they believed this would help ensure more
immediate access to care.
Response: We thank the commenter for his support. We understand
that the time period around a transition of care, including admission
to a facility, can pose added risk. We expect that this provision will
help ensure that the resident receives care for his or her specific
needs until a comprehensive assessment and care planning can be
completed.
Comment: We received a significant number of comments on our
proposal to add a new Sec. 483.30(e) to require that a facility, prior
to an unscheduled transfer of a resident to a hospital, provide or
arrange for an in-person evaluation of a resident, to be conducted
expeditiously, by a physician, a physician assistant, nurse
practitioner, or clinical nurse specialist prior to transferring the
resident to a hospital, unless the transfer is emergent and obtaining
the in-person evaluation would endanger the health or safety of the
individual or unreasonably delay the transfer. Although a few
commenters supported the proposal, the majority disagreed with the
proposal, for a variety of reasons. The comments reflected significant
concern about the burden this requirement would place on facilities,
particularly small and rural facilities. Some commenters were concerned
about added expense and suggested this requirement could not be
implemented without payment reform. Beyond the cost issue, many
facilities were concerned about the impact this requirement would have
on their ability to recruit physicians, NPs, PAs, and CNS's to fill
this role. In particular, rural facilities suggested that this
requirement could not be met in areas where there are professional
shortages. Further, some commenters suggested that this requirement
would drive practitioners of all types away from working in LTC
facilities and would ultimately result in reduced access and reduced
quality of care and safety for residents.
In addition, some commenters felt that this proposal would result
in delayed access to care, resulting in harm to patients. Some
commenters also felt that this requirement could conflict with resident
rights, specifically, the resident's or resident representative's right
to request such a transfer. One commenter stated that, in many
circumstances, a practitioner can make an adequate assessment over the
phone and that CMS had shown no reason to adopt this requirement, and
facilities already have incentives to avoid unnecessary hospital
transfers. Many commenters asked what was wrong with the current system
of the nurse and physician speaking about the plan of care over the
phone, stating that this is sufficient. Finally, some commenters stated
that this proposal failed to recognize an appropriate role for
registered nurses, in coordination with a practitioner. Commenters
suggested we allow this requirement to be completed through a
telehealth mechanism or using registered nurses.
Response: The intent of this provision was to encourage the
identification of opportunities to treat residents in their facilities,
reducing the risks associated with the transfer to a hospital. In
August of 2012, CMS launched ``The Initiative to Reduce Avoidable
Hospitalizations Among Nursing Facility Residents'' (see https://www.cms.gov/Medicare-Medicaid-Coordination/Medicare-and-Medicaid-Coordination/Medicare-Medicaid-Coordination-Office/InitiativetoReduceAvoidableHospitalizations/AvoidableHospitalizationsamongNursingFacilityResidents.html). This
effort aims to improve the quality of care for people residing in
nursing facilities by reducing avoidable hospitalizations. Under the
initiative, CMS supports enhanced care & coordination provider
organizations that each partner with a group of nursing facilities to
implement evidence-based clinical and educational interventions that
both improve care and lower costs. The initiative is focused on long-
stay nursing facility residents who are enrolled in both the Medicare
and Medicaid programs, with the goal of reducing potentially avoidable
inpatient hospitalizations. CMS announced a second phase of ``The
Initiative to Reduce Avoidable
[[Page 68753]]
Hospitalizations among Nursing Facility Residents'' on August 27, 2015.
Under the new phase, a new funding opportunity will allow the
organizations currently participating in the initiative to apply to
test whether a new payment model for nursing facilities and
practitioners, together with the clinical and educational interventions
in place under the current initiative, will improve quality of care by
reducing avoidable hospitalizations while also lowering combined
Medicare and Medicaid spending (see https://www.cms.gov/Medicare-Medicaid-Coordination/Medicare-and-Medicaid-Coordination/Medicare-Medicaid-Coordination-Office/InitiativetoReduceAvoidableHospitalizations/AvoidableHospitalizationsamongNursingFacilityResidents.html). After
consideration of the comments and pending the outcome of the second
phase of the initiative discussed above as well as in order to allow
further time to evaluate suggested alternatives, we have decided not to
finalize this requirement at this time. Therefore, we are withdrawing
proposed Sec. 483.30(e) as well as our proposal to redesignate
paragraphs (e) and (f) as (f) and (g).
Comment: A commenter noted that existing Sec. 483.40(f) states
that at the option of the State, any required physician task in a NF
(including tasks which the regulations specify must be performed
personally by the physician) may also be satisfied when performed by a
nurse practitioner, clinical nurse specialist, or physician assistant
who is not an employee of the facility but who is working in
collaboration with a physician. We proposed to re-designate existing
Sec. 483.40(f) as Sec. 483.30(g). The commenter recommended that we
remove the phrase ``who is not an employee of the facility but'' from
the language in Sec. 483.30(g). Another commenter noted that the
provision creates a difference between SNFs and NFs and suggests that
the requirement should apply to both SNFs and NFs.
Response: We proposed to re-designate Sec. 483.40(f) as Sec.
483.30(g) but did not propose any changes to the language contained in
the current requirement. Therefore, we cannot make any changes at this
time, but will evaluate these comments and consider them for future
regulatory proposals. Section 1919(b)(6) of the Act permits States to
give NFs the discretion to allow a nurse practitioner, clinical nurse
specialist, or physician assistant who is ``not an employee of the
facility'' but working in collaboration with a physician to supervise
the provision of healthcare at an NF. We do not have the authority to
modify this.
Comment: We received comments in support of our proposal to allow
physicians to delegate the authority to write dietary orders to
dietitians acting within their scope of practice under state law and
under the supervision of the physician. One commenter noted that these
professionals may actually know the resident better than the attending
physician. Another stated that this would allow better use of
professional's time. One commenter suggested that this authority should
be limited to the attending physician or his or her designee. Another
suggested that a physician, physician assistant, nurse practitioner, or
clinical nurse practitioner should be able to make this delegation.
Response: We appreciate comments in support of this proposal. We
agree that it would be appropriate to limit this authority to the
attending physician, as that individual retains primary responsibility
for the care of the resident. We have modified the regulatory text at
proposed Sec. 483.30(f)(2) and Sec. 483.30(f)(3) accordingly and
finalize these provisions at Sec. 483.30(e)(2) and Sec. 483.30(e)(3).
Comment: We received comments objecting to our proposal to allow
physicians to delegate writing orders to qualified dietitians or other
clinically qualified nutrition professionals and to qualified
therapists for diets and therapy, respectively. One commenter felt that
these proposals were focused on reimbursement concerns or amounted to
condoning violation of current regulations. The commenter goes on to
state that CMS should not authorize the physician to shift all
authority to the therapist and that this would exacerbate the abuse of
therapy. Another commenter suggested that such orders could be written
without adequate consideration of the whole picture.
Response: Our proposal is intended to improve responsiveness to a
resident's needs and is implemented at the discretion of the physician.
It does not allow a physician to shift all authority to either a
dietitian or a therapist, as the qualified professional to whom the
task is delegated must not only be acting within their scope of
practice under state law, they must also be under the supervision of
the physician. Nothing in this provision would permit ordering of
inappropriate or excessive therapy. As professionals acting within
their scope of practice and having more frequent direct contact with
and observation of the resident, therapists may be able to be more
responsive to a resident's needs and to changes in a resident's
condition. This could actually reduce the amount of inappropriate
therapy. Furthermore, as noted above, the resident's care remains under
the supervision of the physician. As one commenter noted, our proposal
provides for both oversight and accountability. Finally, based on other
comments, we have modified this proposal to limit this authority to the
attending physician who is responsible for the care of the resident and
who should be aware of the full spectrum of issues and concerns
regarding the resident.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
We have withdrawn proposed Sec. 483.30(e).
We have removed our proposal to redesignate paragraphs (e)
and (f) as paragraphs (f) and (g).
We have modified the regulatory text at Sec. 483.30(e)(2)
and Sec. 483.30(e)(3), respectively, to specify that it is the
attending physician who has the authority to delegate to a qualified
dietitian or other clinically qualified nutrition professional the task
of writing dietary orders, and to delegate to a qualified therapist the
task of writing therapy orders, to the extent that these professionals
are permitted to perform these tasks under state law.
M. Nursing Services (Sec. 483.35)
Under the proposed reorganization, requirements for nursing
services currently located at Sec. 483.30 were proposed to be
relocated to Sec. 483.35. The current regulations at Sec. 483.30
address certain aspects of LTC facility staffing but leave gaps related
to a number of areas such as the competencies of licensed nurses and
the need to take into account resident acuity.
We proposed a competency-based staffing approach that requires the
facility to evaluate its population and its resources in accordance
with Sec. 483.70(e), including the number and acuity of the residents,
the range of diagnoses and resident needs and the training, experience,
and skill sets of staff, and base staffing plans and assignments on
these assessments. In Sec. 483.35, we proposed to clarify that the
facility must take into account its assessment of all residents as well
as the skill-sets of individual staff when making staffing decisions.
We also proposed revisions to improve the logical order and readability
of these regulatory provisions. In the proposed rule, we included a
robust discussion regarding the long-standing interest in increasing
the required hours of nurse staffing per day and the various
[[Page 68754]]
literature surrounding the issue of minimum nurse staffing standard in
LTC facilities (See 80 FR 42199). We refer readers to the proposed rule
for this background information.
We proposed to clarify at Sec. 483.35(a)(1)(ii) that NAs are
included in the term ``other nursing personnel.'' We proposed to add
Sec. 483.35(a)(3) and (4) to specify that the facility ensure that
licensed nurses have the competencies and skill sets necessary to care
for residents' needs, as identified through resident assessments, and
as described in each resident's individual plan of care. We further
proposed to specify that caring for a resident's needs would include
but not be limited to assessing, evaluating, planning and implementing
resident care plans and responding to each resident's needs.
Consistent with our clarification that NAs are included in the term
``other nursing personnel,'' we proposed to move most of the provisions
relating to NAs previously located in Sec. 483.75 to proposed Sec.
483.35. Specifically, we proposed to re-designate Sec. 483.75(f)
``Proficiency of Nurse Aides'' as Sec. 483.35(c). We proposed to re-
designate Sec. 483.75(e) as Sec. 483.35(d) and re-title the provision
as ``Requirements for facility hiring and use of nursing aides'' to
reflect its contents more accurately. We proposed to re-designate the
regulations at Sec. 483.75(e) to Sec. 483.35(d)(2) and address non-
permanent employees. Non-permanent caregivers are expected to meet
competency, knowledge and skill requirements to the same extent as
permanent personnel. We also proposed to add the term ``minimum'' to
Sec. 483.35(c)(3) to clarify that this paragraph identifies the
minimum requirements for hiring a nurse aide.
Comment: Some commenters agreed that CMS should not impose
mandatory staffing ratios, including the requirement for a 24/7
registered nurse on the premises. These commenters acknowledged the
importance of staffing levels but did not feel that such mandates were
the best way to clarify ``sufficient'' and felt that mandatory staffing
ratios are not supported by empirical evidence. Some commenters felt
that current oversight of staffing was already burdensome. A number of
commenters stated that it was often a daily struggle to ensure that the
appropriate number and level of staff was available while striving to
maintain quality of care and that our proposed requirements would only
makes that struggle more difficult.
Response: We thank these commenters. We concur that staffing is
important. We continue to be concerned that a mandated ratio could
result in unintended consequences, such as staffing to the minimum,
input substitution (hiring for one position by eliminating another),
and task diversion (assigning non-standard tasks to a position), as
well as stifling innovation, and would not result in the improved
quality and person-centered care that we seek in facilities. However,
we continue to believe that our proposed requirement is necessary to
address concerns about inadequate staffing and resulting harm to
residents.
Comment: Some commenters supported CMS's proposed competency-based
staffing approach, but felt that it should be in addition to minimum
staffing standards. One commenter noted that minimum staffing levels
and a competency-based approach are not necessarily mutually exclusive.
For example, a facility may meet minimum staffing levels and further
increase its staffing based on the results of the facility assessment
referenced below. This commenter urged CMS to give further serious
consideration to these issues. One commenter stated that they recognize
the many diverse skills nurses need and the responsibility to have
nursing staff with demonstrated competency to care for residents. Their
skills need to match resident needs and the scope of services they are
expected to provide.
Response: We thank these commenters. We did re-consider our
approach, but, ultimately, returned to our original proposal. We agree
that staff competency, in addition to sufficient numbers of staff, is
critical to quality of care and resident safety. We continue to have
concerns about establishing appropriate minimum standards as well as
concerns that facilities will justify staffing to the minimum standard
even when more are required in the context of a competency based
approach. We further address comments regarding minimum staffing ratios
below.
Comment: Many commenters stated that CMS needs to establish and
require minimum staffing levels and require a registered nurse to be in
the LTC facility 24 hours a day, 7 days a week. One commenter stated
that CMS is fully aware that facilities are understaffed and that
understaffing harms and kills residents and that CMS must do more to
strengthen nurse staffing requirements. The commenter further stated
that CMS's assertion that it needs more accurate payroll-based staffing
data is disingenuous and that CMS's refusal to set nurse staffing
ratios and, as the Institute of Medicine recommended in in 1996 and
again in 2001, to require a registered nurse 24 hours per day, seven
days a week will mean that many residents will continue to receive
inadequate, life-threatening care. Other commenters reviewed the
literature supporting the need for and value of increasing staffing and
RN presence. Several commenters provided examples of instances where
insufficient staffing resulted in harm or where sufficient staffing
prevented harm. Several commenters provided information on the fiscal
impact of insufficient staffing and the cost savings associated with
sufficient staffing. One commenter provided information on the changing
nature of the LTC facility industry and the advent of for-profit LTC
facilities, the purchase of LTC facilities by private equity firms, and
the move towards Medicaid managed long-term services and support, all
of which create incentives to staff at the lowest possible levels.
Several commenters specifically advocated for CMS to require a 24-
hour registered nurse (RN) in every facility. One commenter stated that
the current Requirements of Participation only mandate that facilities
use a RN 8 continuous hours each day, 7 days a week. These 8 hours
would not have to be spent providing care; they could be used to carry
out any type of administrative tasks. Registered nurses by training and
licensure have skills that are essential for timely assessment,
intervention and treatment. The commenter noted that three Institute of
Medicine studies have recommended that at least one RN be on duty at
all times. They state that 24-hour RN coverage is essential because the
acuity level of LTC facility residents has increased dramatically since
the federal law was passed and expert nursing skills are required to
anticipate, identify and respond to changes in condition; ensure
appropriate rehabilitation, and maximize the chances for a safe and
timely discharge home. In addition, a resident's condition can
destabilize or deteriorate at any time. When that occurs, the
individual must be immediately assessed and a determination made about
whether the resident needs to go to the hospital for treatment or
whether he or she can be properly cared for in the LTC facility.
Because physicians do not have to be on-site, registered nurses are
often the only medical personnel in a LTC facility with the education
and licensure to conduct the assessment required. The commenter noted
that substantial evidence that RN staffing is a key element for safe
and effective resident care in U.S. LTC facilities has grown
substantially over the last 2 decades, typically using quality measures
or
[[Page 68755]]
deficient practice from the CMS survey data and that higher levels of
RN time are associated with positive outcomes, such as reduced
unnecessary hospitalizations, lower antipsychotic use and other
improved outcome measures (pressure ulcers, restraint use, cognitive
decline; reduced incidences of catheterizations, urinary tract
infections, and antibiotic use; and less decrease in function and
weight loss). The commenter stated that only 11 percent of nursing
facilities nationwide report to CMS that they do not have enough RNs on
staff for 24-hour RN coverage, therefore it is reasonable to expect the
remainder to do so. The commenter's calculation is based on 2012 CMS
Expected Staffing Data, assuming, in part, that a minimum of four RNs
(A DoN and an RN on each shift) would provide the necessary RN
staffing.
Another commenter who advocated mandating a 24/7 RN stated that, as
a result of SNF Value-based purchasing and because of the effect of RNs
in decreasing unnecessary hospitalizations of LTC facility residents
cited above, they anticipate that LTC facilities themselves will be
seeking to employ RNs around-the-clock.
Response: We agree that sufficient staffing is necessary, along
with the need for that staff to be competent in delivering the care
that a resident requires. We also agree that all of these factors are
associated with quality of care. However, we do not agree that we
should establish minimum staffing ratios at this time. As discussed in
the preamble to the proposed rule, this is a complex issue and we do
not agree that a ``one size fits all'' approach is best. We have re-
evaluated the literature and commenters concerns and remain convinced
that additional data will be helpful in determining if and what such
ratios should be. Our approach would require that facilities take into
account the number of residents in the facility, those residents'
acuity and diagnoses. We believe the added specificity of this approach
precludes facilities from making staffing decisions based solely on
fiscal considerations, without taking these other factors into account.
We further believe that this approach can strengthen evaluation of
staffing during the survey process. We also agree that RNs are a
valuable resource in LTC facilities, however, we are not mandating a
24/7 RN presence in each facility at this time. We note that the
current regulatory requirements parallel statutory requirements. While
we would have the discretion to impose a more stringent requirement
regarding RN presence, we do not have the discretion to eliminate the
waiver option, as it is statutory. See sections 1819(b)(4)(C)(ii) and
1919(b)(4)(C)(ii) of the Act. While there are no current RN waivers in
effect, such a mandate could result in an increase in such requests. We
are also concerned that imposing such a requirement could negatively
impact the development of innovative care options, particular in
smaller, more home-like settings, for a subset of residents who might
benefit from and be appropriate for such a setting. We are also
concerned that, while the RN supply overall might be sufficient,
geographic disparity in supply could make such a mandate particularly
challenging in some rural and underserved areas. Finally, to the extent
that facilities may already be moving in this direction, payroll based
reporting, discussed previously in our responses, may give us a better
picture of the extent to which increased RN staffing is occurring,
although, at this time, we will still lack information on the extent to
which this results in 24 hour coverage. We have noted elsewhere in our
responses to comments that there are concerns about the validity of
self-reported staffing data in accurately reflecting how a facility is
staffed throughout the year. This, in concert with our inability to
determine to what extent adequate RN hours equate to 24 hour RN
coverage, impacted the assumptions we made regarding the number of
facilities that would be impacted by imposing a 24/7 RN mandate. Thus
our estimate of the number of facilities that would be required to hire
additional RN staff is much higher than the commenters'.
We have reviewed the recommendations of the Institute of Medicine
in its 2004 report ``Keeping Patients Safe: Transforming the work
Environment of Nurses.'' That report reiterates prior recommendations
for a mandatory RN presence in LTC facilities and mandatory minimum
staffing requirements, although it does not recommend a specific ratio.
The report states, in part, that
``Patient safety requires staff resources that are sufficient to
prevent an inappropriately high rate of untoward events that could be
avoided with adequate staffing levels. For such a standard to be
reasonable, it must at least be based on the number of residents in the
LTC facility and address NAs, who provide most of the care to LTC
facility residents. Such minimum staffing standards are not a precise
statement of how many staff are required to fully meet the needs of
each specific group of residents on each unit, nor are they a quality
improvement tool to optimize quality in each LTC facility. Rather, a
minimum staffing level is one that avoids placing individual residents
unnecessarily at risk because of insufficient numbers of staff to
provide even the most basic care.''
The report discusses CMS's 2001 Report to Congress
``Appropriateness of Minimum Nurse Staffing Ratios in Nursing Homes--
Phase II Final Report'' and states:
``With respect to the recommendation that DHHS specify staffing
standards in regulations that would increase with the number of
patients and be based on the findings and recommendations of the Phase
II DHHS report to Congress on the appropriateness of minimum staffing
ratios in nursing homes, the committee notes that the thresholds
identified in that study above which no further benefit from staffing
ratios could be identified are above the staffing levels of 75 to 90
percent of facilities, depending on the type of staff. However, a
minimum standard set by DHHS need not approach the threshold level
above which there is no further benefit. In fact, such a standard would
go beyond the expectation for a minimum, which is intended to identify
situations in which facilities unequivocally place residents at an
unacceptable level of risk. The challenge is that there is no absolute
minimum level of risk for untoward events that is considered
acceptable.''
The IOM report further states:
``The study does not propose a specific minimum standard for
RNs, licensed nurses, and NAs because agreement must first be
reached about what is an unacceptable level of risk. However, data
exist from this national study with which to determine the staffing
levels for each type of staff that are associated with any level of
risk for untoward events.''
Finally, the IOM report states:
``At the same time, a number of nursing organizations, policy
experts, and HCOs [health care organizations] point out the
limitations of staffing ratios. While they may help ensure a
baseline level of staffing in HCOs that may be outliers, they are
poor instruments for achieving optimal staffing. Depending on the
skill mix and expertise of nursing staff and patient acuity, minimum
ratios may still not provide the needed levels of safety. Moreover,
counts of patients needed to calculate nurse staffing levels
consistent with a ratio must be taken at a point or points in time.
Yet patient admissions, transfers, and discharges are frequent;
therefore, an adequate nurse-to-patient ratio at 7 a.m. may be
inadequate at 10 a.m., and an organization that has satisfied a
nurse-to-staffing ratio at one point in time may still have
inadequate staffing at another point. Thus, while staffing ratios
can help protect against the most egregious staffing deficiencies,
HCOs will need to employ more sensitive approaches internally to
fine-tune staffing levels.''
We include only a few portions of this report to highlight the
complexity of
[[Page 68756]]
this issue and our concerns about determining a ``right'' number for
any staffing ratio. CMS has begun mandatory, payroll-based collection
of staffing information from long-term care facilities, to include
registered nurses, licensed practical or vocational nurses, certified
nursing assistants, or other types of medical personnel as specified by
CMS, along with census data, data on agency and contract staff, and
information on turnover, tenure and hours of care provided by each
category of staff per resident day. We believe this information, once a
sufficient amount is collected and analyzed, could greatly assist us in
re-evaluating this issue. In addition, other elements of this
regulation, such as QAPI, Infection Control, Compliance and Ethics, and
Training, are also intended to put in place systemic process to prevent
placing individual residents unnecessarily at risk.
Comment: One commenter was pleased that the proposed regulations
require that facilities ``have sufficient nursing staff with the
appropriate competencies and skills sets to provide nursing and related
services to assure resident safety and attain or maintain the highest
practicable physical, mental, and psychosocial wellbeing of each
resident '' However, this commenter as well as other commenters
expressed concern about the proposed mechanism for determining what
constitutes ``sufficient staff,'' with the ``appropriate competencies
and skills.'' The proposed regulations require the facility to conduct
an assessment, at least annually, to determine the appropriate level
and type of staffing needed. This proposal is of concern because it
relies on the facility's own assessment of staffing needs without any
enforcement mechanisms or safeguards to ensure that the facility is
indeed objectively assessing resident needs, acuity, and other
important factors and not unduly relying on other factors such as cost
and convenience. The commenter felt that that this proposal requiring a
``facility assessment'' is not materially different from what nursing
facilities currently do to determine staffing levels--a method which
has produced serious staffing and quality deficiencies. Other
commenters felt that the proposal was insufficient in its explanation
of expectations. Other commenters were concerned that our proposal did
not allow sufficient flexibility for facilities to determine how they
staff nursing units. Some commenters stated that a facility's ability
to care for residents should be based on outcomes of care, such as
annual survey results, quality measures, and the 5-star rating system.
The commenter agreed with CMS that the regulations must not
encourage facilities to set staffing levels based solely on regulatory
minimum requirements and in lieu of actual resident needs and acuity
levels of the residents they serve. They further agreed that the
facility assessments should take into consideration all the factors set
out in the proposed regulation in Sec. 483.70(e) and that each
facility should conduct this assessment itself. However, the commenter
suggested that CMS require that the facility assessment be audited by a
facility surveyor and that the surveyor be empowered to require, under
threat of graduated monetary penalties, the facility to provide
additional nursing resources if he or she disagrees with the facility's
assessment. Lastly, the commenter believed that the facility should be
required to seek and use input from the Long-Term Care Ombudsman, the
resident and family groups, and family caregivers when conducting its
assessment.
Another commenter noted that instead of establishing a minimum
staffing standard or requiring 24-hour RN coverage, CMS proposed a
competency-based staffing approach that stems in part from a facility
assessment and stated that this assessment appeared to be put forth as
the answer to requiring a specific number of staff or hours of nursing
care. The commenter was concerned that this would not require
facilities to do anything different than they have been doing and that
this simply maintains the status quo. The commenter believed that the
facility assessment could be useful in addition to a minimum staffing
standard if revised to include staffing practices and used as a factor
to consider in adjusting staffing levels upward based on resident
needs.
Response: We appreciate the commenters concerns and we have re-
reviewed the literature as well as additional information. There is no
question that staffing and quality are associated, and we direct
readers to our concerns about mandatory ratios in the previous
response. As one of the commenter notes, the proposed facility
assessment is in line with current industry practice. However, our
approach would require that facilities document the assessment and take
it into account, including the number of residents in the facility, and
those residents' acuity and diagnoses, when making staffing decisions.
Several commenters have noted that a primary driver of understaffing is
that facilities make staffing decisions based solely on fiscal
concerns. We believe the added specificity of this approach precludes
facilities from making staffing decisions based solely on fiscal
considerations without taking resident specific factors and needs into
account. Further, the facility assessment is conducted at the facility
level and it must be used in making staffing decisions, precluding
staffing decisions from being made solely at a corporate level based on
fiscal considerations and without taking facility- and resident-
specific factors into consideration. We believe this approach provides
facilities adequate flexibility while still requiring that there be
sufficient staff to care for residents. As noted earlier, we also
believe that this approach can strengthen evaluation of staffing during
the survey process. We further address comments regarding the facility
assessment in our discussion of comments received with respect to
proposed Sec. 483.70.
Comment: One commenter stated that, somewhere in the regulations,
it is important to ensure that all facility staff, including non-
permanent employees, be determined by the facility to be competent to
provide care to the residents. The commenter stated that they have seen
where the facility counts on the contract agency to determine
competency and training, and this has not actually been completed in a
timely manner. When a deficiency is cited, neither the facility nor
contract agency wants to be held responsible for the resultant care
that was provided to the residents. Regardless of whether the
individual is a permanent facility employee or a contract employee, the
facility should remain accountable for the competency of the
individuals who are providing care to the residents. Language should be
added to hold the facility is accountable to ensure that the contract
staff have received the regular in-service education required every 12
months under Sec. 483.35 (d)(7), otherwise there is no way to ensure
these individuals meet their annual in-service education requirements.
Many other commenters stated that facilities should not be accountable
for ensuring the competency of contract personnel. Many of these
commenters stated that the agency that employs the individual should be
accountable for their employees' competency. One such commenter stated
that they hire the agency, not the nurse or CNA.
Response: We agree that all staff providing care must have the
skill sets and competencies to provide that care. Proposed Sec.
483.35(a)(3) and (c) specifically require that licensed nurses and
nurse aides, respectively, have the
[[Page 68757]]
competencies and skills necessary to provide care to residents in
accordance with that resident's needs. These provisions are not
conditioned on the manner by which the individual's services are
obtained. Further, we establish in proposed Sec. 483.95, training
requirements for all staff. Please see our responses for that section
for additional information. Furthermore, we re-designated but did not
otherwise change the requirements for the use of outside resources,
which requires that the facility obtain services under an agreement
that specifies, in writing, that the facility assume responsibility for
obtaining services that meet the professional standards and principles
that apply to professionals providing such services and are timely.
Depending on a facility's needs, contract staffing may be used
infrequently, routinely, and for extended periods of time. A facility
can require in its agreement with a staffing agency that the personnel
the agency sends to fill staffing needs meet certain requirements. The
facility could use mandatory training requirements as well as its
facility assessment, past experience, and other knowledge of its
staffing needs to determine what requirements it would expect the
staffing agency to ensure personnel have met prior to being sent to the
facility. However, when a contract individual reports for duty, the
facility must ensure that the work assigned to that individual is
appropriate for his or her competencies and skill sets.
Comment: One commenter recognized that nurses need many diverse
skills, but felt the meaning of this proposed requirement is unclear.
They asked whether we intended to require this of all of nursing in the
aggregate, or every nurse individually. They asked whether we intended
that each nurse have competencies for all the residents/patients under
their care each day, or on the unit on which they work. The commenter
felt that it was unclear about how surveyors would evaluate this
requirement fairly and consistently, in order to judge a facility's
compliance with this provision. The commenter recommended that Sec.
483.35(a)(3) be revised to read: The facility must ensure that its
licensed nurses collectively have the specific competencies and skill
sets necessary to care for residents' needs, as identified through
resident assessments, and described in the plan of care. Other
commenters stated that competency and skill set requirements were
unnecessary, as these are ensured by education and licensure, and
covered by requirements that care meet professional standards of
practice.
A commenter also recommended that ``Proficiency of nurse aides''
should be revised to read: ``The facility must ensure that nurse aides
have the basic skills and techniques necessary to care for residents'
needs, as identified through resident assessments, and described in the
plan of care.''
Response: The individual providing the care must have the skills
and competencies to deliver the care that they are expected to provide
to the resident, consistent with the individual's position and, when
applicable, their scope of practice under state law. We recognize that
education and licensure provide many foundational skill sets. There are
many common competencies that every staff member or every member of a
specific job position (such as nurse aide) need. We would expect those
competencies to be identified through the facility assessment. We
understand that not every staff member can have every competency for
every resident and that an individual facility, based on the population
it serves, may have some unique needs. It is not enough, however, that
the staff, collectively, have the competencies and skill sets to
provide the care. That could imply that the requirement is met so long
as one member of the staff has the required training or knowledge,
regardless of whether or not that staff member actually provides the
care or is even present in the facility when the care is delivered. The
facility must ensure that the individual providing care to a resident
has the skills and competencies necessary to deliver that care. For
example, if a particular resident is on contact isolation as a result
of a medical diagnosis, every individual caring for that resident must
know how to comply with those procedures. Similarly, if a resident
requires the use of a specialized eating implement, the individual(s)
responsible for assisting the resident to eat must know the proper use
of the implement. If the individual has to obtain guidance for such
use, such guidance must be timely. It would not be enough for one
individual to have the knowledge if that knowledge was not actually
used in caring for the resident.
Comment: One commenter felt that the language of proposed Sec.
483.35(d)(2) was unclear and could be interpreted to mean that a
facility could not have a temporary worker that did not meet the
requirements but could have a permanent employee who did not meet the
requirements.
Response: Sec. 483.35(d)(1) addresses the use of nurse aides;
paragraph (d)(2) establishes that facilities cannot avoid compliance
with (d)(1) through the use of non-permanent employees. In context,
this does not permit any employee to whom paragraph (d) applies to not
meet the requirements. We are finalizing this provision as proposed.
Comment: A commenter stated that traditional in-service education
has been largely supplanted by other approaches and may have marginal
value in imparting skills and attitudes and in improving performance.
Self-education, computer-based training, real-time coaching, mentoring,
and other forms of education and training and coaching are often more
productive. Furthermore, ``in-service education'' is not defined and
lacks pertinent standards. The commenter recommended revising the
wording of (d)(7) to reflect more flexible, efficient, effective, and
modern approaches to the issue. Otherwise, regulatory compliance is
limited by the inflexible specific requirement for ``in-service
education.''
Response: ``Regular in-service education'' is required by sections
1819(b)(5)(E) and 1919(b)(5)(E) of the Act. ``In-service'' training is
generally understood to be training intended for those actively engaged
in the profession or activity concerned. We agree with that there are
multiple ways of providing ongoing training that assures that
individuals used as nurse aides are competent to perform services as
nurse aides. We would encourage facilities to use the most efficient
and effective training methods available to them to achieve their
training objectives.
Comment: One commenter felt that the final regulation should
clearly address a specific, replicable methodology for calculating
nursing staff and assessing whether or not it is adequate to meet the
needs of residents in each facility. The commenter urged CMS to examine
whether the current methodology for the five-star rating system, which
calculates expected staffing based on RUG values along with reported
staffing levels, can be adapted for establishing rules or guidelines
providing presumptive levels for facility assessments. Such an
adaptation must be designed to incorporate the more robust payroll-
based staffing data that will be in place as a requirement for all
certified SNFs and NFs by July 2016. The commenter felt that a
competency-based assessment could easily ask for a determination of
whether or not the facility has 24-hour RN coverage, and whether all
LPNs and CNAs have sufficient training to be able to communicate with
and respond to the needs of individual residents who have difficulty
communicating, notably individuals with dementia. A
[[Page 68758]]
competency assessment could also ask for further details about initial
and in-service training, including whether all nursing staff understand
ethics and compliance and QAPI standards well enough to use them.
Further, a competency assessment could inquire about the composition of
interdisciplinary teams, and whether these care teams record and take
into account the treatment preferences and quality of life goals that
residents express during care planning. The commenter stated that the
importance of regulators having clearer yardsticks to understand what
constitutes ``sufficient'' staffing in different facilities in order to
ensure resident well-being cannot be overstated. Careful oversight by
nursing staff serving residents is a core fiduciary responsibility of
LTC facilities and the direct responsibility of the Administrator and
the Director of Nursing (DoN). This responsibility must be understood
to extend to the adequacy of training and the operational deployment of
nursing staff--at all times, including night and weekend shifts, and
during holidays--regardless of the business structure of the facility,
and independent of any policies promulgated by individuals or entities
that may be operationally and/or financially connected to a given LTC
facility. To be useful, therefore, an annual facility assessment must
be able to establish that its staffing will remain adequate throughout
the year, both with regard to levels of total nurse staffing, and with
respect to the responsibility that certain types of staff, for example,
RNs and LPNs, have in overseeing the medical management of residents
with regard to medications, falls prevention, development of pressure
ulcers, readmission to hospitals and other key areas.
Response: We will consider the commenters' recommendation to
examine whether the current methodology for the five-star rating
system, which calculates expected staffing based on RUG values along
with reported staffing levels, can be adapted for establishing rules or
guidelines providing presumptive levels for facility assessments.
Please see our discussion of Sec. 483.70 for further discussion of the
facility assessment requirement.
Comment: In advocating for mandatory staffing standards, some
commenters addressed the high cost of poor care. One commenter noted
that CMS itself has recognized these costs. The commenter further noted
that nearly 25 years ago, the Senate Labor and Human Resources
Subcommittee on Aging issued a report that addressed, and used the
term, ``high cost of poor care''--that is, the costs that are incurred
by the health care system when inadequate nurse staffing in LTC
facilities leads to avoidable medical problems that the health care
system spends money to try to correct. The report detailed several poor
care outcomes, their causes, and their estimated costs, noting that the
costs would be far higher in 2015 dollars and links avoidable
hospitalizations to ``the insufficient number of adequately trained
nursing staff.'' The commenter notes additional studies that further
support this conclusion. The commenter also discussed the use of
INTERACT (Interventions to Reduce Acute Care Transfers is a quality
improvement program that focuses on the management of acute change in
resident condition) to avoid inappropriate hospitalizations and to
support hospitalization that is medically necessary. The commenter
further stated that considerable research demonstrates that unnecessary
and inappropriate hospitalizations can be avoided when nursing
facilities have more health care professionals in place on a daily
basis--physicians, physician assistants, and registered nurses.
Finally, the commenter discussed other costs of insufficient staffing,
such as staff injuries. Another commenter stated that the lack of a
specific minimum staffing standard and 24-hour registered nurse
coverage in the proposed regulations has been a major obstacle to
quality care since the Nursing Home Reform Law was passed in 1987 and
will continue to be until these standards are adopted. The commenter
highlighted the relationship between staffing levels and quality and
stated that CMS discounts the numerous studies that support the
relationship between nursing staff and quality.
Response: We do not discount the relationship between staffing
levels and quality. We disagree that this requires that we set minimum
staffing ratios and that we know what that minimum staffing ratio
should be. As discussed previously, we believe that there are concerns
about utilizing a minimum staffing standard and we do not necessarily
find that the 4.1 hours per resident day (hrpd) is the right standard
for every facility. LTC facilities are varied in their structure and in
their resident populations. Some facilities are Medicare-only SNFs that
focus on short term rehabilitation services. Others are primarily
Medicaid facilities that include primarily long-stay residents. Many
are both. Some facilities specialize in dementia care. Some facilities
have pediatric residents, young adult residents, or ventilator
dependent residents. The care needs of each of these populations are
different. Facilities range in size from the very small to the very
large. The capabilities of these facilities are likely to be different.
As noted above, we discuss our concerns with establishing a minimum
staffing ratio in prior responses. As stated in the proposed rule, our
intent is to require facilities to make thoughtful, informed staffing
plans and decisions that are focused on meeting resident needs,
including maintaining or improving resident function and quality of
life.
Comment: One commenter stated that while they believe recommended
minimum staffing requirements should be implemented when the revised
rules go into effect, an alternative approach would be to phase-in the
staffing standards incrementally over a 5 year period. A number of
states, such as Florida and Illinois, have used an incremental phase-in
period. This approach would give facilities ample time to increase
staffing to the required levels.
Response: We are not finalizing a minimum staffing requirement at
this time. We will consider a phased-in approach if we determine to
impose minimum staffing standards through future rulemaking.
Comment: Several commenters stated that, despite industry claims to
the contrary, they believe it is not necessary for CMS to increase
Medicare and Medicaid LTC facility payment rates if CMS requires
minimum staffing standards. One commenter noted that the actual
facility-reported average RN staffing levels increased to 0.85 hours
per resident day (hprd), LVN staffing increased to 0.83 hprd, and total
staffing steadily increased to 4.15 hprd in 2015. Because the average
LTC facility staffing is already 4.1 total hprd and 0.8 RN hprd, most
homes should be able to meet these standards without an increase in
reimbursement rates. The commenter felt that the for-profit chains who
in general report lower staffing levels are in the best position to
increase staffing without additional reimbursement.
Response: We thank the commenters for this information. We are
aware of concerns that current, self-reported staffing data may not
fully reflect a facility's staffing across time. We expect our
understanding of how facilities are staffed on an ongoing basis to
improve with the collection of payroll-based staffing data. Also, it is
important to note that changes to these requirements
[[Page 68759]]
do not necessarily drive changes to Medicare or Medicaid payment rates.
Comment: Several commenters questioned the accuracy of the cost
estimates CMS presented for the proposed rule. They believe that the
salary figures appeared to be overly inflated and asked CMS to review
its cost estimates. The commenters suggested that CMS use the BLS OES
wage data that are specific to SNFs and felt that the 48 percent fringe
benefit and overhead factor appeared overly generous. Finally, the
commenters stated that it would be helpful for CMS to provide
additional information on the justification and methodology for
determining the benefit factor and what the specific elements of
overhead costs are.
Response: We have reviewed our calculation and believe that we
provide a good faith estimate of the cost of requiring 24/7 RN
coverage. We note that the overhead percentage used in our calculations
is based on guidance from the Office of Management and Budget. After
eliminating facilities that already require a 24/7 RN, we estimate that
there are 13,279 facilities that will likely need to `staff-up.' We
believe that ``staffing-up'' would entail hiring an additional one to
four RN FTEs to cover an additional two shifts per day (14 eight hour
shifts per week) in the 13,279 facilities that are not currently
required to have a 24/7 RN presence. Given the 2015 mean annual wage of
$62,440 for an RN working in a nursing care facility (http://www.bls.gov/oes/current/oes291141.htm), and assuming either 48 percent
or 100 percent overhead, we estimate the burden of implementing such a
mandate to be $92,411 to $124,880 per additional RN, for a total of
between $1.2 and $6.6 billion in addition to the current estimated
first year costs of the proposed rule. Particularly given existing
concern that current self-reported staffing data may be inflated, we
believe that payroll based staffing data will help us better estimate
the burden.
One commenter suggested that we should use $42.82 hourly wage based
on the BLS OES Median for NAICS 623100, inflated by 48 percent. If we
used that number, assuming 40 hours per week for 52 weeks, we get an
estimate of $1.1 to $4.7 billion for an additional one to four RNs at
13,279 facilities. Some commenters believe that we have over-estimated
the number of facilities that would need to hire one or more additional
RNs. One commenter believes that 89 percent of facilities, already meet
or exceed four RN FTEs per day (1 DoN and 1 RN on each shift), based on
a calculation of RN hours per resident day and currently reported
staffing data. That would mean only 1,777 facilities would need
additional RN staffing. Using this estimate and the $42.82 median
hourly wage, the burden estimate is $158 to $633 million for one to
four additional RN at 1,777 facilities. However, we believe this
calculation significantly underestimates the number of facilities that
would be required to hire additional RNs. We based our estimate on the
number of facilities that are not currently required to have an RN 24/
7.
Comment: Several commenters stated that, given the relationship
between staffing and outcomes, increased staffing levels could save the
Medicare and Medicaid programs billions of dollars, and cite studies
demonstrating the possible cost savings. They noted that, while the
trauma inflicted upon LTC facility residents and their loved ones from
understaffing could not be easily categorized and calculated, the
financial costs are quantifiable.
Response: We agree that improved staffing, as well as improvement
as a result of several of our proposals, could result in savings to the
Medicare and Medicaid programs. In developing our proposals, we
considered possible cost savings from these proposals. Those cost
savings were not included in our estimates as they were deemed to
potentially be the aggregate result of more than one requirement or
activity, as well as speculative in nature.
Comment: Some commenters are concerned that our requirements
related to the DoN can be waived and note that the role of the DoN is
critical to quality resident care. The commenter stated that the DoN is
responsible for administrative, clinical, educational, staff and public
relations; the core competencies include such skills as conducting root
cause analysis, setting benchmarks, directing change, and mentoring and
teaching and, with the increased acuity level and medical complexity of
LTC facility residents, a DoN with the expertise, training and skills
of a RN is necessary. The commenter recommends that we delete the
waiver so the regulation reads: ``The facility must designate a
registered nurse to serve as the director of nursing on a full time
basis.''
Response: We agree that the position of DoN is very important and
that an RN should fill this position. However, the waiver in question
is established by statute and we do not have the discretion to
eliminate it. We note that the waiver only applies to rural facilities
where the supply of RNs is not sufficient, and only when specific
conditions are met. Further, we note that no such waivers are currently
in effect.
After consideration of the comments we received on the proposed
rule, we are finalizing these provisions as proposed.
N. Behavioral Health Services (Sec. 483.40)
Currently, Sec. 483.25 requires that each resident must receive
and the facility must provide the necessary care and services to attain
or maintain the highest practicable physical, mental and psychosocial
well-being, in accordance with the comprehensive assessment and plan of
care. We proposed to add a new section Sec. 483.40 to address this
requirement as it relates to behavioral health services and include
requirements for social workers. These provisions work in conjunction
with other provisions we proposed, including those related to reducing
the inappropriate use of psychotropic medications, to address the
behavioral health care needs for residents.
We proposed at Sec. 483.40(a) to require that the facility have
sufficient direct care staff with the appropriate competencies and
skills sets to provide nursing and related services to assure resident
safety and attain or maintain the highest practicable physical, mental,
and psychosocial well-being of each resident, as determined by resident
assessments and individual plans of care and considering the number,
acuity and diagnoses of the facility's resident population in
accordance with the facility assessment required at proposed Sec.
483.70(e). We proposed to specify in Sec. 483.40(b) that, based on the
comprehensive assessment of a resident, the facility must ensure that a
resident who displays or is diagnosed with mental or psychosocial
adjustment difficulty receives appropriate treatment and services to
correct the assessed problem or to attain the highest practicable
mental health and psychosocial well-being. In addition, we proposed to
specify that a resident whose assessment does not reveal or who does
not have a diagnosis of a mental disorder or psychosocial adjustment
difficulty will not display a pattern of decreased social interaction
and/or increased withdrawn, angry, or depressive behaviors, unless the
resident's clinical condition demonstrates that the pattern was
unavoidable. Furthermore, if rehabilitative services such as physical
therapy, speech-language pathology, occupational therapy, and
rehabilitative services for a mental disorder and intellectual
disability are required in the resident's comprehensive plan of care,
the facility must provide the required
[[Page 68760]]
services, including specialized rehabilitation services as required in
Sec. 483.40(c)(1); or obtain the required services from an outside
provider of specialized rehabilitative services in accordance with
proposed Sec. 483.65(a)(2).
General Comments
Comment: Some commenters were very supportive of our proposed
requirements for behavioral health services, but noted that these
requirements focused substantially on behavioral and psychiatric
conditions. They supported the focus on sufficient direct care staff
with the appropriate skills and competencies to provide the necessary
care to residents with a mental disorder and cognitive impairment,
including how to implement non-pharmacological interventions. Some
commenters supported requiring facilities to provide social services to
the residents and that all of the behavioral health services that are
indicated in the resident's comprehensive plan of care must be provided
by the facility.
Response: We thank the commenters for their support. We believe
these proposals, which have been finalized in this rule, are essential
for residents who need behavioral health services. We also agree that
having a focus on behavioral health through having a separate section
on behavioral health with a focus on, among other things, sufficient
direct care staff with the appropriate skills and competencies and non-
pharmacological interventions, emphasizes the importance of providing
the behavioral health services residents need to obtain their highest
practicable physical, mental, and psychosocial well-being. Facilities
will be required to provide the behavioral health services indicated on
the resident's comprehensive plan of care; however, Sec. 483.65(a)(2)
also allows for the facility to have these services provided by an
outside source.
Comment: Some commenters were supportive of the proposed
requirement for sufficient direct care staff with the appropriate
skills and competencies to provide the necessary care to residents who
need behavioral health services and for this to be determined by a
facility assessment. However, the commenters were concerned that it was
the facility itself that would conduct this assessment. Without any
enforcement mechanism or safeguards to ensure that the facility is
objectively assessing its residents' needs, acuity, and other important
factors, the commenters were concerned that the assessment could be
influenced or rely upon other factors, such as the cost or convenience
to the facility. In addition, the commenters stated that this
requirement was not materially different from what facilities currently
do and that current practice has resulted in serious staffing and
quality deficiencies. Some commenters proposed that we require the
facility to seek out and use the input from outside sources and that a
surveyor audit the facility assessment and impose monetary penalties if
the auditor disagreed with the facility assessment.
Response: We understand the commenters' concerns about facilities
performing their own facility assessment to determine staffing and
other resource requirements and that the assessments could be based
upon factors other than the care needs of the resident population, such
as justifying their current staffing and other resources, as well as
taking into consideration the facility's cost and convenience. However,
we believe that facilities need the flexibility to determine the best
way to perform their facility assessments to comply with this
requirement. The facility can certainly perform this assessment itself
or it may choose to have an outside entity perform the assessment. We
believe that if a LTC facility does not objectively assess its resident
population and resources, surveyors will be able to detect this during
the survey, not only from reviewing the facility assessment but also
from the LTC facility's compliance with the other requirements in this
final rule. For further discussion on the facility assessment, please
see the discussion for Sec. 483.70(e) below.
Comment: Some commenters were very concerned about not having
sufficient resources that would be needed to comply with these
requirements. Some commenters noted the shortage of behavioral/mental
health providers in their areas, especially qualified psychiatrists.
Others noted that Medicaid per diem rates do not include any
compensation for specialized behavioral health services. Other
commenters were concerned they would have insufficient resources to
obtain additional staff and provide the training, both initial training
and continuing in-services, that would be required to comply with the
requirements.
Response: We understand that there are concerns about how to comply
with the requirements in this final rule. However, sub-regulatory
guidance will be published for these requirements. This guidance should
provide the detailed information that LTC facilities need to understand
what is needed to comply with these requirements.
Comment: Some commenters believed that complying with the proposed
requirements is unrealistic and problematic due to the high staff
turnover in LTC facilities. A commenter noted that in 2012 there was a
median turnover rate of 43.9 percent turnover for all employees and 50
percent or more for direct care RNs, and CNAs. The turnover rate for
LPNs and LPNs was 36.4 percent.
Response: We acknowledge that the high turnover rates for staff in
LTC facilities present a challenge. However, as discussed in other
areas of this rule, we believe that these requirements will not only
improve the quality of care and life for residents but also the quality
of the work environment for the staff. We believe that over time this
will result in lower turnover rates for staff and savings for LTC
facilities.
Comment: Some commenters were supportive of the emphasis on
behavioral health; however, they also recommended a more holistic
approach to improve care for residents with behavioral and psychiatric
impairments, including dementia. They noted that all psychiatric and
behavioral disturbances have a significant medical and biological
component. In addition, there were many reliable and reputable
resources in medicine, neurology, psychiatry, and other disciplines
that explain how health professionals, other than psychiatrists, should
be able to properly assess, diagnose, and manage behavioral and
psychiatric issues. They are concerned that these requirements would
perpetuate ``silos'' of care, which is managing each body part or
symptom by a particular discipline, which could undermine managing all
of a resident's symptoms and conditions holistically. Some of the
commenters believed that mental health professionals are not often
needed and may actually be unhelpful for some residents. Some
commenters did not believe that having consultants provide behavioral
care is unlikely to improve vital staff and practitioner understanding
and performance.
Response: We agree with the commenters that behavioral health
issues have a medical and biological component and that healthcare,
including the healthcare in LTC facilities, requires a holistic
approach. We proposed and have finalized this section, not to elevate
the treatment of mental disorders and emotional issues above physical
health issues, but to ensure that assessment and treatment of
behavioral health issues are viewed with the same importance as the
physical and receive the resources necessary to provide appropriate
[[Page 68761]]
treatment to residents in need of behavioral health services. This is
why we have also finalized requirements for assessments, personalized
care plans, the involvement of an IDT, the involvement of the resident
or their representative in the resident's care, as well as other
requirements. We also agree with the commenters that behavioral health
care can be provided by healthcare personnel other that psychiatrists.
In this final rule, we have not required that the individuals who
provide behavioral health care and services have specific degrees or
certifications; however, the facility must have sufficient staff with
the appropriate competencies and skill sets to provide nursing and
related services to residents in need of behavioral health care and
services.
Comment: Some commenters were concerned that the behavioral health
section requirements appear to be implying that facilities would be
responsible for ensuring that people with mental or emotional disorders
maintain stable emotions and behaviors. They also believed that the
proposed requirements appeared to imply that the facility would be held
responsible if residents could not adjust or behave adequately in a
social setting, or if they withdrew, got angry, or failed to interact
well with others. However, commenters noted that many residents may
have long-standing, and often misdiagnosed or inappropriately or
inadequately managed, behavioral health problems prior to being
admitted to a LTC facility. They asserted that this indicates how
widespread the problem of inadequate behavioral health care is in our
healthcare system.
Response: According to Sec. 483.40, LTC facilities are responsible
for providing each resident with the necessary behavioral health care
and services for the resident to attain or maintain the highest
practicable physical, mental, and psychosocial well-being, in
accordance with his or her comprehensive assessment and plan of care.
No healthcare provider, including a LTC facility, can guarantee any
particular result for its residents. In addition, an LTC facility can
only be responsible for the care they provide and not the care the
resident received prior to admission. However, they can, and are
expected to, properly assess residents, develop plans of care, and
provide residents with the appropriate behavioral health services that
they need to attain or maintain their highest practicable physical,
mental, and psychosocial well-being.
Comment: Some commenters stated that the requirements were
increasingly mandating certain approaches and discouraging or
prohibiting the use of others. Commenters believed there was an
emphasis on non-pharmacological interventions over the judicious and
appropriate use of medications. The commenters did not believe that the
approach in the proposed rule was based upon sound clinical judgment.
Some commenters were supportive of the efforts to reduce unnecessary
anti-psychotic drug use in LTC facilities, but they also believed in
the judicious use of medications for appropriate indications with
adequate monitoring of efficacy and side effects. They were
particularly concerned about what they perceived as an anti-medication
orientation that was obsessive and counterproductive and could inhibit
the appropriate use of necessary medications that can effectively and
safely relieve symptoms such as distressing delusion, hallucinations,
and self-harming behaviors. Commenters recommended the wording be
changed to focus on objective support for all potentially useful
interventions that could be used in the appropriate context after a
clinically competent assessment has been performed.
Response: We appreciate the commenters concerns; however, these
requirements neither mandate specific techniques or care nor do they
require facilities to forego the use of any medically acceptable drugs
or techniques. The requirements finalized in this rule regarding
behavioral and non-pharmacological interventions, as well as those
concerning psychotropic and anti-psychotic drugs in Sec. 483.45, are
all intended to encourage appropriate care for the residents. We
disagree that these finalized requirements have an anti-medication
orientation. The requirements regarding medications are intended to
promote the safe and effective use of medications and discourage the
inappropriate use of these medications. Non-pharmacological or
behavioral interventions are required in an attempt to reduce or
eliminate psychotropic medications, but only if these non-
pharmacological methods are not clinically contraindicated for the
resident.
Comment: Some commenters indicated that CMS failed to specify the
elements of the facility assessment that would be required to determine
the facility's direct care staff needs; the expectations CMS would have
regarding how facilities would determine the competencies and skill
sets necessary to provide behavioral health services; and whether
facilities would need to ensure expanded access to outside professional
behavioral health services, which are costly and already difficult to
access in rural and geographically underserved areas. Numerous
commenters recommended that we delay the behavioral health requirements
due to their lack of specificity, especially what ``appropriate'' is,
who will determine what the competencies should be, and who will
determine if the staff meet the competencies.
Response: We have not provided specific instructions on how to
conduct the facility assessment. We believe that each facility needs to
have the flexibility to decide the best manner in which to conduct that
assessment, as long as it addresses or includes the factors or items
set forth in Sec. 483.70(e). We understand that the commenters'
concern about how to comply with the requirements in this final rule
and how they will be surveyed. However, such specificity is not
suitable for these requirements; this is more detailed information than
is usually incorporated in the requirements and would likely need to be
modified more frequently than the requirements. In addition, after this
rule is published, sub-regulatory guidance on complying with these
requirements will be published.
Comment: Some commenters recommended that we reverse the order of
proposed Sec. 483.40(b)(1) and (b)(2). They stated that the first
statement is not expecting a resident who does not have behavioral
health problem at admission to develop one, unless there is a medical
reason specific to that individual that makes the problem unavoidable.
This first statement would then be followed by the statement requiring
a facility to provide appropriate care to a resident who needs the
service.
Response: We do not believe it is necessary to reverse the
requirements. Thus, we will finalize those requirements as proposed.
Comment: Some commenters supported our proposal that the facility
have sufficient staff with ``the appropriate competencies and skill
sets,'' but they believed that the behavioral needs of residents could
not be met unless CMS also specified that each facility have staffing
practices that include the number and types of staff, staffing
assignments (such as rotating or consistent assignment), schedules, and
systems that affect communication, teamwork, and participation.
Commenters recommended specific language for such a provision.
Response: We agree with the commenters that staffing practices are
important. Some staffing practices, such as consistent assignment, are
also best
[[Page 68762]]
practices. We encourage LTC facilities to use best practices with
staffing when it is feasible. However, we have not mandated the use of
specific practices in these requirements because we believe that LTC
facilities need the flexibility to ensure they have sufficient staffing
for their residents.
Comment: Some commenters recommended that the final rule strengthen
the requirements related to assessment of behavioral health and other
psychosocial concerns. Commenters specifically recommended that the
final rule require that there be a comprehensive psychosocial
assessment and social history completed upon admission according to
Sec. 483.21(b), with the assessment portion updated annually or when
significant changes in the resident's health or behavioral health
occur. They also recommended that care plans be required to address
psychosocial and behavioral needs identified by the IDT assessments,
social histories, and applicable sections of the MDS and associated
Care Area Assessments.
Response: According to Sec. 483.21(b), LTC facilities must develop
a comprehensive care plan, which among other things, must include
measurable objectives and timetables to meet a resident's mental and
psychosocial needs that are identified in the comprehensive assessment.
This comprehensive care plan must be reviewed and revised by the
interdisciplinary team after each assessment, including both the
comprehensive and quarterly review assessments. We believe that by
complying with these requirements LTC facilities should be able to
provide the behavioral health care their residents need.
Comment: Some commenters agreed that mental health care and
services are integral to the goal of assuring the highest practicable
well-being for residents; however, they also believed that any
discussion of the existing requirements or proposals required
consideration of the history, structure, and function of LTC
facilities. Commenters were particularly concerned about the suggestion
that LTC facilities are appropriate settings to care for seriously
mentally ill residents or perhaps even being required to admit these
residents and provide the specialized behavioral care and services
these residents need. They noted that historically LTC facilities were
not expected to admit residents that required specialized behavioral
health services. They noted that residents with psychiatric illnesses
are complex and require a thoughtful plan and that LTC facilities
should not be expected to fill in the gaps in the behavioral health
care system.
Commenters said that expectations regarding the mental health care
that LTC facilities can provide must be balanced against these
facilities' ability to provide those services and the possible
ramifications for the residents with mental disorders and the remaining
resident populations in those facilities. A serious unintended
consequence could be frail, elderly residents with dementia being
housed with residents with a serious mental disorder, which could
result in a dangerous situation. Other commenters were concerned that
they would be pressured to admit residents with serious, complex
behavioral health needs that they could not meet.
Response: These requirements do not mandate that a LTC facility
admit any resident with a serious mental disorder. However, if a
resident does have behavioral health issues, the LTC facility is
responsible for providing the appropriate care for that resident. As
discussed in the proposed rule, by 2012, more than 48 percent of LTC
facility residents were estimated to have some form of dementia,
including Alzheimer's disease, and/or depression (80 FR 42202) Thus,
residents requiring behavioral health services are already being cared
for in LTC facilities.
Comment: Some commenters were confused about the intent of the
behavioral health services requirements and what was expected of
providers. They requested clarification and some recommended that CMS
not finalize the proposed behavioral health requirements, but work with
the state survey agencies and providers to address how residents with
complex behavioral challenges can best be served.
Response: We understand that some of the requirements related to
behavioral health services are new and will require time and resources
to comply with the requirements. We will also be publishing sub-
regulatory guidance to assist LTC facilities in complying with these
requirements.
Comment: Some commenters were concerned that some of the proposed
requirements regarding behavioral health services were inconsistent
with a proper, objective assessment of a resident. They believe that
instead of emphasizing sound clinical reasoning and problem solving the
proposed requirements would encourage inflexible ``cookbook''
approaches that impeded adequate consideration of causes and treatment
options. Commenters were concerned that the proposed regulations are
primarily psychosocial and focuses on psychosocial interventions while
largely ignoring or underemphasizing the reality of dementia as a
neurological disorder and the benefits of competent medical assessment
and diagnosis. In addition, some commenters were concerned that the
proposed rule emphasized non-pharmacological interventions over
pharmacological treatments. Commenters noted that competent and
reputable sources, such as the World Health Organization (WHO) have
emphasized the judicious use of medications in appropriate situation to
produce remarkable improvement in the function and quality of life for
individuals. They believe that amounts to an attempt to influence
clinical practice that is unlikely to promote an improvement in the
quality of care provided to residents.
Response: We disagree with the commenters. Person-centered care is
a focus of these requirements. Each facility is responsible for
assessing every resident and developing care plans upon admission and
periodically thereafter in accordance with Sec. 483.20 and Sec.
483.21 for each resident. Section 483.45 ``Pharmacy services'' includes
safeguards concerning specific types of medication; however, it does
not require or prohibit the prescription or use of any medically
acceptable medication for a resident. In addition, although behavioral
or non-pharmacological interventions are required for residents on
psychotropic medication in an effort to discontinue these drugs, this
is only required if it is not clinically contraindicated for the
resident (Sec. 483.45(e)(2)). Hence, there is no ``cookbook'' approach
for the care for any resident. We have specifically addressed dementia
below.
Comment: Some commenters were concerned about some of the language
in Sec. 483.40(a) and (a)(1). They were concerned about identifying
specific conditions, especially the language concerning residents with
a history of trauma and/or post-traumatic stress disorder. They do not
believe that these conditions are neither more nor less relevant than
other psychiatric and behavioral disorders. This could divert attention
away from other disorders and problems that are equally important.
Commenters provided recommendations on specific changes to the
regulatory text.
Response: The inclusion of certain issues, such as ``history of
trauma and/or post-traumatic stress disorder'' is not intended to
exclude other types of disorders or problems. We believe that the
remaining language in Sec. 483.40(b)
[[Page 68763]]
clearly indicates that those requirements pertain to other behavioral
health issues.
Comment: Some commenters recommended that the behavioral health
requirements not be contained in a separate section. Instead, they
recommended that these requirements be relocated into the quality of
care requirements, under special services, since it appears to be the
intent for these services for residents who have a mental disorder,
psychosocial disorders, and trauma or post-traumatic stress disorders.
Response: In the previous requirements, the requirements related to
behavioral health services were integrated throughout the requirements.
However, we became aware of concerns that behavioral health services
were either not always being addressed or not addressed to the extent
required, in LTC facilities. We proposed, and are finalizing, these
requirements in a separate section to emphasize the importance of
behavioral health and ensure that LTC facilities address these issues
(80 FR 42203).
Definitions
Comment: Some commenters were concerned about what care and
services were encompassed within the behavioral health requirements.
They recommended that there be a definition of behavioral health in the
final rule.
Response: We agree with the commenters that there should be a
definition of ``behavioral health'' in this final rule. LTC facilities
are also the residence for residents. Hence, we believe there needs to
be a holistic approach to behavioral health and that it should
encompass a resident's mental, emotional, and physical well-being. We
believe this holistic approach should also encompass prevention.
Additionally, we do not want to limit the behavioral health
requirements to residents who have been diagnosed with mental or
substance use disorders. Therefore, we have inserted the following
definition into the stem statement at Sec. 483.40, ``Behavioral health
encompasses a resident's whole emotional and mental well-being, which
includes, but is not limited to, the prevention and treatment of mental
and substance use disorders.''
Comment: Some commenters were concerned about how ``direct care/
direct access'' staff would be interpreted. Some commenters also
recommended that the wording be changed to, ``[t]he facility must have
sufficient staff who provide direct services to residents and who have
the appropriate competencies and skills to provide nursing, social
work, and other services to assure resident safety and attain or
maintain the highest practicable physical, mental, and psychosocial
well-being . . .''
Response: We acknowledge that there could be some confusion
concerning the use of ``direct care/direct access'' staff. Depending on
the setting, this term could be interpreted as applying to virtually
every staff member in the facility or more narrowly to nursing staff
and any applicable therapist. We believe that ``sufficient staff who
provide direct services to residents'' is more appropriate language and
have finalized that language in Sec. 483.40(a). Thus, the facility
would be responsible for ensuring that every staff member that provided
direct services to residents has the appropriate competencies and skill
sets to provide nursing and other services. Those competencies and
skill sets would depend upon the services the staff members were
providing to the residents. However, we do not agree that ``social
work'' needs to be specifically mentioned in this requirement. Although
``social work'' is very important, other services are also important to
the residents. In addition, ``social work'' is clearly included in
``other services''.
Social Workers and Social Services
Comment: Some commenters noted that we proposed to move the
requirement that the facility provide medically-related social services
from the previous quality of life requirement at Sec. 483.15(g), to
Sec. 483.40(d). Commenters said that this implies that medically-
related social services were only for those with mental disorders or
psychosocial adjustment difficulties, a history of trauma and/or post-
traumatic stress disorder. They indicated that social workers also
provide services that benefit all residents, such as contributing to
ongoing care planning, facilitating transitions of care, and advocating
for residents' rights and helping facilities. These commenters believed
that many residents could benefit from the services of social workers,
in addition to those residents that have behavioral health or mental
health issues. Other commenters wanted to move the behavioral health
requirements to a stand-alone section on Quality of Care and Quality of
Life requirement section.
Response: We agree with the commenters and believe that this is
already required. Section 483.40(d), both as proposed and finalized,
requires the facility to provide medically-related social services to
attain or maintain the highest practicable mental and psychosocial
well-being of each resident. Thus, this requirement for medically-
related social services goes to all of the facility's residents, not
just those with identified behavioral or mental health issues.
Comment: Some commenters recommended that the requirement for
medically-related social services be strengthened. They noted that the
current requirement is for a full-time social worker in facilities with
120 or more beds; however, smaller facilities also need clinical social
workers to assist residents and their families with concerns about care
and rights. Commenters noted that while non-clinical social services
staff are also important for helping arrange for and coordinate
services not provided by the facility, discharge planning, and
identifying ongoing care and services for residents who are moving out
of facilities, they thought it was important for the staff providing
medically-related social services to have clinical credentials. Some
commenters recommended that LTC facilities be required to employ
sufficient numbers of social workers who are professionally
credentialed to provide clinical services to residents. Some commenters
also noted that the current inability of social workers to bill
Medicare Part B had created a barrier to these services.
Response: We agree with the commenters that residents in smaller
facilities could also benefit from medically-related social services.
However, the requirement that facilities with 120 or more beds must
employ a full-time, qualified social worker is a statutory requirement
(sections 1819(b)(7) and 1919(b)(7) of the Act). While we believe we
have statutory authority to require facilities with fewer beds to
employ full-time social workers, we did not propose changing this
provision. We will retain these comments for consideration if there is
future rulemaking concerning social workers or social work services.
Comment: Some commenters noted that proposed Sec. 483.40(d), which
reads, ``[t]he facility must provide medically-related social services
to attain or maintain the highest practicable mental and psychosocial
well-being of each resident.'' Commenters noted that ``physical'' was
included in Sec. 483.40 and Sec. 483.40(a). They recommended that
``physical'' be inserted before ``mental''.
Response: We thank the commenters for pointing out that
``physical'' was left out of Sec. 483.40(d). We have finalized that
section so that the word ``physical'' is included.
Comment: Some commenters stated that residents had limited access
to
[[Page 68764]]
clinical social workers and that this posed a significant barrier to a
facility's ability to meet residents' mental and behavioral health
needs as identified in proposed Sec. 483.40. Commenters also stated
that social work is essential to realize the goal of Sec. 483.40(a).
Clinical social workers have either a master's or doctoral degree in
social work, at least two years of post-degree supervised experience in
a clinical setting, and a state-issued clinical social worker license,
certification, or registration. They also noted that the Health
Resources and Services Administration (HRSA) recognizes social work as
one of the five core mental health professions. Commenters noted that
some LTC facilities do employ clinical social workers to provide social
services to residents and that this staffing pattern can certainly
contribute to staff identification and response to residents' mental
and behavioral health concerns. Commenters discussed how reimbursement
contributes to this lack of access. Specifically, they stated that
psychotherapeutic diagnosis and treatment is not included in the
services covered by the SNF Part A resource utilization group payment.
They also noted that even if these services were included in the
payment, many clinical social workers employed in a social services
capacity would not have the time or flexibility to provide the mental
health services some residents would require. In addition, many LTC
facilities contract with Medicare-certified independent practitioners
to provide mental and behavioral health services to LTC facility
residents. However, at this time, clinical social workers are only
reimbursable under Medicare Part B if the resident is not receiving SNF
benefits under Medicare Part A. The commenters believe that it was the
implementation of the requirements in the Balanced Budget Act of 1997
(Pub. L. 105-33), which bundled all social work services in the per-
diem SNF payment (section 4432 of the BBA), failed to distinguish
between medical social work services provided to all SNF residents and
discretionary psychotherapeutic services provided by clinical social
workers with specialized needs. They argued that this revocation of the
clinical social workers ability to bill Medicare Part B for
psychotherapeutic services to SNF residents contrasts with the
privileges retained by psychiatrists and psychologists, whose services
are not bundled in the SNF per-diem rate. They recommended that
correcting this discrepancy would reduce costs to both the
beneficiaries and the Medicare program by helping to prevent
unnecessary transfers to the emergency department or psychiatric
hospital, as well as to decrease avoidable re-hospitalizations related
to mental and behavioral health.
Response: We agree with the commenters that social workers offer
valuable services to residents. LTC facilities with less than 120 beds
are not required to have a full-time social worker on staff. However,
in this final rule, LTC facilities are required to have sufficient
staff with the appropriate competencies and skill sets to provide the
care needed by their residents. Thus, LTC facilities must ensure that
their residents have the social services, including medically-related
social services, they require. Policy governing billing and payment for
the services of social workers is beyond the scope of this regulation.
Relationship to Other Requirements
Comment: Some commenters requested clarification on how the
behavioral health services section requirements intersect with the
current pre-admission screening and resident review (PASARR) process,
particularly with respect to the Level II screening when it results in
a finding that a resident would require specialized behavioral health
services.
Response: According to Sec. 483.40, LTC facilities are required to
provide the necessary behavioral health care and services to residents
for those residents to attain or maintain their highest practicable
physical, mental, and psychosocial well-being, in accordance with the
comprehensive assessment and plan of care.
Comment: Some commenters were concerned about LTC facilities being
confused with Institutions for Mental Diseases (IMDs) or Institutions
for Individuals with Intellectual Disabilities (IIDs). The primary
focus of the regulatory design for LTC facility was based on meeting
the nursing and/or medical needs of residents. While the commenters
noted that we have progressed to a more holistic, person-centered
approach, LTC facilities continue to lack the capability in terms of
specialized staffing, access to resources and specialized care, and the
overall character of their population, to provide the appropriate care
for residents with serious mental disorders or who require long-term
and intensive psychotherapy. Commenters also pointed out that there is
a provision for mental health services under the Medicaid program that
prohibits federal financial participation (FFP) to centers for services
rendered in LTC facilities that CMS finds qualify as an IMD. Commenters
described the criteria used to determine if a facility is an IMD,
including whether more than 50 percent of the residents need to be in
an institution as a result of a mental disorder and an unusually large
proportion of the staff has specialized psychiatric/psychological
training.
Response: The requirements in Sec. 483.40 Behavioral health, as
well as the other requirements on staffing finalized in this rule, do
not require any LTC facilities to admit any resident for whom the
facility cannot provide appropriate care. According to the requirements
in this final rule, facilities must perform a facility assessment,
which includes both their resident population and the resources the
facility needs to care for their residents. The facility must then
provide those resources, including the sufficient number of staff with
the appropriate competencies and skill sets, to care for their resident
population. We are not requiring that LTC facilities admit residents
with behavioral health needs that the facility cannot meet. However,
the facility must provide the appropriate care for the residents it
does have.
Dementia
Comment: Some commenters were very concerned about the proposed
rule not having specific requirements that addressed dementia. Some
noted that the word dementia was not even included in the behavioral
health section; however, the preamble implies that the proposed
regulation would apply to residents with diagnoses such as dementia and
Behavioral and Psychological Symptoms of Dementia (BPSD). They insisted
that nothing was more central to the purpose of LTC facilities than
providing good care to individuals with dementia. Dementia is
increasing among LTC facility residents and two-thirds of those dying
with dementia are dying in LTC facilities. They also noted that
consumers and advocates have said that the quality of care that is
provided in LTC facilities to residents with dementia is frequently
poor and these residents are often chemically restrained and deprived
of needed care and not treated with dignity. These commenters believed
that establishing standards for dementia care in LTC facilities is a
necessity. Some of these commenters recommended that there be a
separate section and new standards for dementia care. Other commenters
recommended adding a requirement to Sec. 483.40(b)(1) stating, ``[a]
resident whose assessment reveals a history of or potential for
dementia-related behavior receives appropriate
[[Page 68765]]
care and interventions to prevent or de-escalate dementia-related
behaviors.'' Some commenters recommended that we incorporate into the
requirements the guidance on dementia contained in the survey and
certification letter, ``Advanced Copy: Dementia Care in Nursing Homes:
Clarification to Appendix P State Operations Manual (SOM) and Appendix
PP in the SOM for F309--Quality of Care and F329--Unnecessary Drugs''
(S&C: 13-35-NH) that was published on May 24, 2013.
Response: We believe and intended that dementia be included in our
requirements that address behavioral health. However, we understand the
commenters' concerns regarding the lack of specific requirements
concerning the care of residents with dementia. The survey and
certification letter recommended by some of the commenters (S&C: 13-35-
NH) does contain valuable guidance for LTC facilities concerning care
for their residents with dementia. However, we did not propose specific
requirements for the care of residents with dementia. We believe that
this would require more research and discussion than we have completed
at this time. However, we will retain these comments in case there is
future rule-making concerning dementia. At this time, we can
specifically include dementia as a condition that the facility must
address. Thus, we have inserted at Sec. 483.40(b)(3), the following,
``[a] resident who displays the signs of or is diagnosed with dementia,
receives the appropriate treatment and services to attain or maintain
his or her highest practicable physical, mental, and psychosocial well-
being.''
Comment: Some commenters were concerned about the burden associated
with these requirements. Some commenters were concerned about imposing
additional reporting and documentation requirements. Others were
concerned about whether facilities would need to ensure expanded access
to outside professional behavioral health services, which are costly
and already difficult to access in rural and geographically underserved
areas. Some commenters also noted that facilities would incur
potentially significant cost to provide required behavioral health
training to their entire staff under the proposed Sec. 483.95(i).
Response: We do not believe that the costs associated with the
behavioral health services requirements are burdensome for LTC
facilities. In the previous requirements, Sec. 483.25 ``Quality of
care,'' LTC facilities were already required to ensure that, ``[e]ach
resident must receive and the facility must provide the necessary care
and services to attain or maintain the highest practicable physical,
mental, and psychosocial well-being, in accordance with the
comprehensive assessment and plan of care.'' In addition, concerning
mental and psychosocial functioning, facilities were already required
to ``ensure that--(1) [a] resident who displays a mental disorder or
psychosocial adjustment difficulty, receives appropriate treatment and
services to correct the assessed problem; and (2) [a] resident whose
assessment did not reveal a mental disorder or psychosocial adjustment
difficulty does not display a pattern of decreased social interaction
and/or increased withdrawn, angry, or depressive behaviors, unless the
resident's clinical condition demonstrates that such a pattern was
unavoidable'' (former Sec. 483.25(f)). Hence, LTC facilities should
already be complying with many of the requirements in this rule and
that should reduce the costs associated with complying with these
requirements.
After considering the comments, we are finalizing as proposed, with
the addition of the definition for ``behavioral health.''
O. Pharmacy Services (Sec. 483.45)
The LTC requirements regarding pharmacy services were located at
Sec. 483.60. We proposed to relocate these provisions to Sec. 483.45.
Section 483.60(c) required a pharmacist to perform a drug regimen
review (DRR) for each resident at least once a month. At Sec.
483.45(c)(2), we proposed that the pharmacist be required to review the
resident's medical record concurrently with the DRR when: (1) The
resident is new to the facility; (2) a prior resident returns or is
transferred from a hospital or other facility; and (3) during each
monthly drug regimen review when the resident has been prescribed or is
taking a psychotropic drug, an antibiotic, or any drug the QAA
Committee has requested be included in the pharmacist's monthly drug
review. The previous LTC requirements at Sec. 483.25(l)(2)
specifically identified antipsychotic drugs and provided specific
safeguards for their use. We proposed to re-designate these
requirements to Sec. 483.45(e) and at Sec. 483.45(c)(3) to expand the
drugs to which Sec. 483.45(e) applies to include psychotropic
medications (anti-psychotic drugs are included in the definition of
psychotropic drugs). We proposed to use the definition of psychotropic
drug used in the November 2001 OIG report, ``Psychotropic Drug Use in
Nursing Homes'' (OEI-02-00-00490), which is a drug that affects brain
activities associated with mental processes and behavior. These drugs
include, but are not limited to, drugs in the following categories: (1)
Anti-psychotic, (2) anti-depressant, (3) anti-anxiety, (4) hypnotic,
(5) opioid analgesic, and (6) any other drug that results in effects
similar to the drugs listed above.
The previous LTC requirements also required the pharmacist who
conducted the monthly DRR to report any irregularities to the attending
physician and the director of nursing. The term ``irregularities'' was
not previously defined in the regulation and no examples were given. We
proposed at Sec. 483.45(c)(4) to define ``irregularities'' as
including, but not limited to, the use of any drug that meets the
criteria set forth in proposed paragraph (d) for an unnecessary drug.
In addition, previously the pharmacist performing the monthly DRR was
required to report any ``irregularities'' to the attending physician
and the facility's director of nursing, and that these reports must be
acted upon.
We proposed that the medical director be added to the individuals
who should be notified of irregularities identified by the pharmacist
during the residents' DRRs. We also proposed that the pharmacist create
a written report that is dated, and contains, at a minimum, the
resident's name, the relevant drug, and the irregularity the pharmacist
identified. To ensure that the reported irregularities are acted upon,
we also proposed that the attending physician must document in the
resident's medical record that he or she has reviewed the report of the
identified irregularity and what, if any, action has been taken to
address it. If there is to be no change in the medication for which an
irregularity was identified, the attending physician should document
his or her rationale in the resident's medical record.
The current description of ``unnecessary drugs'' and the specific
requirements for antipsychotic drugs are set forth in Sec.
483.25(l)(1) and (2), respectively, under the ``Quality of Care''
condition of participation. We proposed to relocate these requirements
from Sec. 483.25 ``Quality of Care'' to proposed Sec. 483.45
``Pharmacy services.''
In addition, we proposed at Sec. 483.45(e)(3) that LTC facilities
ensure that residents would not receive psychotropic drugs pursuant to
a PRN order unless that medication was necessary to treat a diagnosed
specific condition that was documented in the clinical record. In
addition, at Sec. 483.45(e)(4), we proposed that every PRN order for a
psychotropic drug be limited to 48 hours and not be
[[Page 68766]]
continued beyond that time unless the resident's primary care provider,
for example, his or her physician, documented the justification for
this continuation in the resident's clinical record.
General Comments
Comment: Some commenters were generally supportive of the proposed
requirements for pharmacy services. One commenter said the section
strengthened the role of both the physician review and accountability
in regards to psychotropic medications and added additional oversight
by the pharmacists. One commenter believed CMS already had, and had
used, its authority to enforce requirements concerning unnecessary
drugs and inappropriate drug use.
Response: We thank these commenters for their support for the
proposed requirements for pharmacy services. Although CMS already
exercises its authority to regulate the use of unnecessary and
inappropriate drugs, we believe that the requirements finalized in this
rule will strengthen the protections for residents concerning pharmacy
services and improve our oversight of the drugs used in LTC facilities.
Comment: Some commenters believed that our proposals were
insufficient to protect residents from the inappropriate use of
psychotropic medications or otherwise questioned the value of the
proposals. Some commenters also recommended additional provisions, such
as informed consent from the resident or resident representative prior
to administering any psychotropic or anti-psychotic drug. Another
commenter believed that LTC facility resources would be better spent on
enforcing and reinforcing existing requirements, combined with an
intensified focus on some of the key underlying reasons for problematic
prescribing and use of medications (including medication-related
problems during care transitions and acute changes of condition),
regardless of the medication category or underlying medical condition.
Response: We believe the requirements finalized in this rule
strengthen the protections for residents from the use of inappropriate
drugs. For example, the finalized requirements for the monthly DRRs,
which include a requirement that each resident's medical record be
reviewed in conjunction with the monthly DRR, should result in more
frequent and thorough reviews of residents' drug regimens. Please see
the section on DRRs below for further explanation. The requirement to
copy the facility's medical director on the report of irregularities,
in addition to the attending physician and the facility's director of
nursing, should result in medical directors becoming more aware of, if
not involved in, the residents' medication management. Requiring the
attending physician to document his or her review and action taken with
respect to any identified irregularity should ensure that the
irregularity is reviewed, and that medication errors and potential
adverse events related to medications are minimized. Expanding the
requirements for antipsychotic drugs to psychotropic drugs will expand
protections for residents prescribed drugs that have an increased
potential for being prescribed inappropriately or for reasons other
than the resident's benefit, such as for the purpose of a chemical
restraint.
Comment: One commenter disagreed with our proposals regarding
pharmacy services because the proposals did not address the root cause
of the medication issues in LTC facilities. The commenter stated that
most medication management and related issues emanate from shortcomings
in the care delivery process and clinical reasoning and diagnosis. They
said that the proposed changes would only create another ``silo'' by
reorganizing more requirements into the Pharmacy Services requirement.
Since implementation is the primary challenge, the commenter stated
that everyone's time and effort would be better spent in enforcing and
reinforcing existing requirements, combined with an intensified focus
on some of the key underlying reasons for problematic prescribing and
use of medications (including medication-related problems during care
transitions and acute changes of condition), regardless of the
medication category or underlying medical conditions. They believe that
the most effective approach would be to focus all providers and
practitioners on a thorough evaluation of each resident to establish a
clinically valid rationale for all current treatments, and to
effectively use existing requirements and surveyor guidance to look for
evidence of appropriate clinical care, documentation, and
implementation.
Response: The ``Pharmacy Services'' requirements are a part of a
comprehensive update of the long-term care requirements. As finalized,
we believe all of the requirements in this rule, including the
``Pharmacy Services'' section, will work together to protect the
residents' rights and improve the quality of care they receive in LTC
facilities. For example, the pharmacist must do a medical record review
when the resident is taking an antibiotic or any drug the facility's
QAA committee has requested be included in the monthly DRR (42 CFR
483.45(c)(2)(iii)). Reviewing the medical record concurrently with the
MAR or other list of current medications during the monthly DRR if the
resident is taking an antibiotic supports the infection control
program, especially the antibiotic stewardship program (Sec.
483.80(a)(3)). Since the QAA committee coordinates and evaluates QAPI
activities under the QAPI program, the pharmacist reviewing the medical
record for those residents taking a drug identified by the QAA
committee also contributes to QAPI activities. Thus, the requirements
finalized in this rule should work together to address the care
delivery process and promote improved clinical care for the residents.
Comment: Some commenters were concerned that the pharmacy services
requirements appeared to place the primary responsibility for
medication management, especially for antipsychotic or psychotropic
drugs, on the pharmacist. They argued that other disciplines,
especially prescribers and nursing, have the primary accountability for
the residents' drug regimens. One commenter also noted that while the
consultant pharmacist and the IDT provide input to the prescriber, it
is the prescriber, not the consultant pharmacist, who determines which
medications are appropriate, based on the resident's clinical
condition, goals of care, and the risks, benefits and alternatives to
specific medications.
Response: It is the physician or the prescribing practitioner who
is responsible for prescribing medication. Nurses also bear the
responsibility for the medications they administer to residents. Hence,
we disagree with commenter that the proposed requirements place the
primary responsibility for medication management on the pharmacist. The
pharmacist is performing a DRR designed to identify irregularities,
which is within their scope of practice. When the pharmacist identifies
an irregularity, he or she is identifying a medication that they
believe presents an issue that needs to be addressed. However, it is
not the pharmacist but the attending physician who would review the
identified irregularity and the resident's medical record and then
determine if there should be any change to that medication. Thus, the
resident's medication regimen is the responsibility of the physician or
the prescribing practitioner, not the pharmacist.
[[Page 68767]]
Comment: Some commenters were concerned that the proposed
requirements were intended to have an overall chilling effect on the
prescription of psychotropic drugs in LTC facilities. One commenter
asserted that the proposed requirements established a default position
that basically psychotropic drugs were not to be prescribed and, if a
resident was on one of these drugs, the facility was to do everything
it could to get the resident off the drug. This could result in anti-
psychotic and other psychotropic medications not being prescribed even
when they are appropriate and needed for the resident's health and for
their benefit.
Response: As we said in the proposed rule, ``[w]e want to emphasize
that the proposed requirements concerning psychotropic medications are
not intended to have a chilling effect or in any manner discourage the
prescription or use of any medication intended for the benefit of a
resident who has been diagnosed [with] a specific condition that
requires these medications. Our proposed requirements are intended to
protect LTC facility residents from drugs that are not being prescribed
for their benefit'' (80 FR 42204). In addition, as described below, we
have not finalized all of the requirements as proposed. As discussed
below in responses to comments, we have made modifications in this
proposed rule in response to such comments. We do not believe that the
requirements finalized in this rule are so burdensome that any
practitioner should be discouraged from using any psychotropic
medication when it is appropriate for the resident and is being
prescribed for the resident's benefit.
Comment: Some commenters were concerned about reorganizing these
requirements from the quality of care section to the pharmacy services
section. They believed this created the impression that antipsychotic
or other psychotropic drugs were not a matter for quality of care or a
fundamental human right. They also expressed concerns about how this
reorganization would affect the surveyor's ability to be able to extend
surveys due to a finding of substandard care. Some commenters wanted
the pharmacy requirements retained in the quality of care section. They
believed that only requirements related to procedures, staff,
credentials, and so forth should be included in the pharmacy services
requirements. They were also concerned that it would create an
undesirable ``silo''.
Response: We acknowledge that there will need to be changes in the
survey process due to some of the changes encompassed in this final
rule. However, any changes to the survey process will be managed
through sub-regulatory guidance. We disagree with the commenters
regarding the reorganization. As we explained in the proposed rule, we
believed that there needed to be improvements in the overall
readability and logical order of the requirements (80 FR 42178). We
believe that the requirements in the pharmacy services sections should
logically be grouped together and their new location makes them more
accessible, especially to individuals who are not familiar with the
requirements.
Comment: One commenter recommended that the pharmacy services
section be re-written to specify the goal and purpose for the use of
psychotropic medications. They suggested that we specify in the
requirements that the goal of caring for individuals with cognitive
impairment is to limit the use of psychotropic medications. They
recommended that the classes of medications along with exceptions or
drugs in those classes to which the requirements should not apply, be
included in the sub-regulatory guidance.
Response: The goal or purpose of the requirements finalized in this
rule is not to limit the overall amount of psychotropic drugs used by
the facility or to supplant the judgment of a physician or other
prescribing clinician concerning the use of psychotropic medications.
As stated above, the purpose of these requirements is to ensure that
residents receive psychotropic drugs only when these medications are
appropriate and intended for the resident's benefit. These requirements
are intended to decrease, and hopefully eliminate, inappropriate
psychotropic drug use and the use of medications for reasons other than
the resident's benefit.
Drug Regimen Reviews
Comment: Some commenters approved of the proposed requirements
concerning drug regimen reviews (DRRs), especially the requirement for
periodic review of residents' medical records and monthly reviews when
the resident is taking certain medications or during transitions in
care. One commenter believed that requiring a medical record review for
residents taking drugs identified by the QAA Committee was a good idea.
However, some commenters recommended that the requirements be
strengthened by requiring the concurrent review of each resident's
medical record during the monthly DRRs. Another commenter wanted to
require that all residents have their medical records reviewed during
the DRR at least quarterly, instead of every six months. Another
commenter supported the proposed requirements for reviewing the medical
record in conjunction with the DRR under the proposed circumstances;
however, the commenter also noted their concern about polypharmacy.
Some commenters even stated they believed that a DRR by definition
implies review of the resident medical record. This would enable any
issues with the resident's medications to be identified sooner.
Response: After reviewing the comments we received concerning the
proposed requirement for the pharmacist to review residents' medical
records in conjunction with the monthly DRR under certain specific
circumstances, we agree with the commenters that the pharmacist should
review each resident's medical record during every monthly DRR. We also
agree with the commenter that expressed concern over the large number
of drugs that many residents are being prescribed or polypharmacy. In
addition, we agree that reviewing the medical records for all residents
with each monthly DRR would likely identify irregularities sooner.
Identifying irregularities sooner could assist in preventing adverse
medication reactions and aid in earlier identification of medication
issues. Requiring that the pharmacist review the medical record for
each resident during his or her monthly DRR provides residents with
protection from inappropriate drug use without being burdensome for the
facility. Thus, we will not be making the commenters' recommended
changes to require monthly or quarterly review of medical records in
conjunction with the DRR, but modifying Sec. 483.45(c)(2) by requiring
that the monthly DRR include a review of the resident's medical record.
Comment: Some commenters were concerned about situations in which
there is no action concerning an irregularity identified by the
pharmacist during the DRR. Some commenters recommended a requirement
for the pharmacist to report the irregularity and the lack of any
action concerning that irregularity to an outside authority, such as
the state's office of the long-term care ombudsman, state licensing
authority, or CMS, if the pharmacist's believes that the irregularity
detected requires action.
Response: While we appreciate the commenters' concerns for
residents, we do not believe that it is appropriate to require
pharmacists to report to an outside entity if they do not agree with
the action or lack of action taken by the attending physician or other
prescribing
[[Page 68768]]
practitioner. The attending physician is notified of the irregularity,
as well as the facility's medical director and director or nursing. It
is the attending physician's responsibility to review the identified
irregularity and take any action, or no action, based upon his or her
professional judgment. If there is no action and either the facility's
medical director or DoN has questions or disagrees, we would expect
that either or both of these individuals would follow-up with the
attending physician. Unless specifically allowed under the relevant
state law, it is outside the scope of practice for pharmacists to
prescribe medication. The appropriate action to take after an
irregularity is identified is the responsibility of the attending
physician. However, we do believe that the resident's medical record
should demonstrate that the attending physician has reviewed the
identified irregularity and what, if any, action was taken. If no
action was taken, the medical record should indicate why no action was
appropriate. Thus, we have finalized Sec. 483.45(c)(4)(iii) that
requires the attending physician to document in the resident's medical
record that the identified irregularity has been reviewed and what, if
any, action has been taken to address it. If there is to be no change
in the medication, the attending physician should document his or her
rationale in the resident's medical record.
Comment: Some commenters wanted there to be more transparency with
the monthly DRR process. They recommended that the report of
irregularities become part of the resident's medical record. Another
commenter wanted the resident or the resident's representative to be
notified of the irregularity.
Response: According to the SOM, Appendix PP-Guidance to Surveyors
for Long Term Care Facilities (Rev. 149, 10-09-15), the pharmacist's
findings are part of each resident's active medical record. These
findings should be maintained in the resident's medical record or in
the facility where it is readily available for review. According to
proposed Sec. 483.10(f)(3), finalized at Sec. 483.10(g)(2), the
resident has the right to access any medical record that pertains to
him or herself. Thus, the pharmacist's findings are already available
to the resident or the resident's representative. However, we decline
to require that the resident or their representative be notified of the
pharmacist's findings. The irregularity identified by the pharmacist
may require no action, updating or modifying documentation, or some
other action that does not affect the quality of care for the resident.
Unnecessary notifications could lead to confusion and anxiety for the
resident. We believe that it is the responsibility of the attending
physician to determine whether to notify the resident or their
representative. In addition, each facility could also make that
determination and address notification of the resident and the
resident's representative in the policies and procedures for the DRR
process that is now required at Sec. 483.45(c)(5).
Comment: Some commenters expressed concerns over various aspects of
the DRR. Some were concerned about the absence of timeframes concerning
how much time the pharmacist should have after discovering an
irregularity to submit a report of irregularities to the attending
physician, medical director, and the director of nursing or how long
the facility or attending physician has to take action on any
identified irregularities. In addition, some commenters were concerned
there were no requirements related to what a pharmacist should do if he
or she believed the identified irregularity required urgent or
emergency action to protect the resident. Some commenters also
recommended that there be designated circumstances or triggers for an
emergency review. One commenter proposed that the supervising or
attending nurse should be able to request an emergency medical records
review from the pharmacist for residents taking psychotropic drugs upon
observation of adverse side effects, significant changes in the
resident's condition, the absence of a diagnosis of a major mental
disorder in the medical records, or the presence of a primary diagnosis
of Alzheimer's Disease or another form of dementia. If the irregularity
involved the inappropriate use of psychotropic drugs, the facility
should be required to take immediate steps to gradually reduce the drug
and implement behavioral intervention with the goal of discontinuing
the use of the drug as soon as it is safe and practicable. Other
commenters were concerned about the increased documentation required by
physicians, especially in cases where physicians might have to
repeatedly document rationales for the same medications for the same
residents after a pharmacist noted the medication on the report of
irregularities. These commenters recommended that accommodations be
made in cases where there had been previous irregularities noted for
the same medication for a particular resident and even provided
specific language for the regulatory text. Other commenters recommended
that the facilities have policies and procedures that cover different
aspects of the DRR process.
Response: We agree with the commenters that LTC facilities should
have policies and procedures concerning the monthly DRR, including
appropriate time frames. We also agree that pharmacists should have a
procedure to follow so that the appropriate individuals are notified if
the pharmacist believes that an irregularity needs to be reviewed
immediately due to the potential for harm to a resident. However, we do
not believe that we should establish those time frames. We believe that
each facility should establish policies and procedures that address the
entire DRR process, especially the timeframes for various actions in
the process and a procedure for a pharmacist to follow when he or she
believes the irregularity must be addressed immediately due to the
potential for harm to the resident. We disagree with the commenter that
recommended that the attending or supervising nurse be able to request
that the pharmacist perform an emergency DRR for a resident under
certain circumstances or, if the drug in question is a psychotropic,
institute gradual dose reductions (GDRs). The facility should have its
own policies and procedures for the nurse if she or he is concerned
about any medication order. We generally believe that the nurse, not
the pharmacist, should be contacting the attending physician or the
prescribing practitioner if there are any questions concerning the
safety or appropriateness of a medication for a resident.
We also agree with the commenter that physicians should not be
required to repeatedly document the same rationale in the resident's
medical record, once a clinically acceptable rationale is already
documented in the medical record for a specific medication. However, we
believe that each facility should have the flexibility to determine the
best manner in which to handle this situation. We encourage facilities
to address this situation in their policies and procedures concerning
the monthly DRR. Concerning the other recommendations, we believe that
each facility needs the flexibility to determine how the monthly DRRs
will be conducted and how the facility will comply with the
requirements in this final rule. Thus, in this final rule we are adding
a requirement at Sec. 483.45(c)(5) that the facility must establish
and maintain policies and procedures that addresses the monthly DRR,
including but not limited to, timeframes for the various steps in the
process and procedures a
[[Page 68769]]
pharmacist is to take when he or she believes immediate action is
required due to potential harm to the resident.
Comment: One commenter disagreed with the amount of detail and
specificity in the requirements for the DRR. They also did not believe
the regulatory text was sufficiently flexible to accommodate likely
changes related to medication usage without modification. One commenter
stated that with the increasing adaptation of e-prescribing real time
reviews will become more frequent. With these types of reviews, some of
the pharmacy requirements will become outdated. They recommended more
general language, such as that in the preamble. They suggested we amend
Sec. 483.45(c)(2) to read: ``[t]his review must occur on a regular
basis including more frequent targeted reviews for medications that may
be associated with an increase of adverse events or overutilization as
well as when the resident experiences transitions in care or when
requested by the facility.'' Written communication, they believed, did
not allow for new and more effective methods of communication. By
specifying specific elements, it would not provide for new data
elements. Some commenters also argued that there was too much
specificity concerning when the medical record review must be done in
conjunction with the DRR.
Response: We do not believe that the preamble language cited by the
commenter would be appropriate for the regulatory text. The regulatory
text must be specific enough to inform the facility of what activities
are necessary to comply with the requirement. While it may be
appropriate under certain circumstances to use more general language
such as that suggested by the commenter, we do not believe it is
appropriate for the monthly DRR. The inappropriate use of drugs has the
potential to be very dangerous for residents. We believe that there are
specific times when the medical chart must be reviewed concurrently
with the DRR to ensure a thorough review of the resident's drug regimen
and provide the resident with protection from inappropriate drugs. We
believe that the requirements are specific enough to clearly indicate
what is necessary to comply with the requirement, but flexible enough
to allow facilities to decide how to comply. Thus, we have finalized as
proposed the requirements for when a pharmacist must review the
resident's medical record in conjunction with the DRR and the report of
irregularities.
Comment: One commenter was concerned about adding the facility's
medical director to the list of individuals to whom the report of
irregularities must be forwarded. The commenter noted that by
increasing the number of persons the report must be forwarded to, it
increased the likelihood of miscommunication and errors. Other
commenters wanted the report forwarded to the appropriate prescribing
practitioner, not just the attending physician.
Response: We believe that it is crucial that the facility's medical
director be notified of any irregularities detected by the pharmacist
in the monthly DRRs. The medical director is responsible for the
medical care provided in the facility. In addition, as a physician, the
medical director is in the best position to discuss the identified
irregularity with the attending physician, especially if there are
continuing concerns about the medication after the attending physician
has reviewed and acted upon the identified irregularity. Concerning the
report of irregularities, although the pharmacist is required to
forward the report of irregularities to the attending physician and the
facility's medical director and director of nursing, this does not
preclude the facility from forwarding the report to any other
individuals they believe is appropriate, such as a prescribing
practitioner.
Comment: Some commenters were concerned about conflicts of interest
between the facility and the pharmacists who are conducting the monthly
DRR. These commenters wanted us to address the issue of independence
for these consulting pharmacists.
Response: Requirements addressing the independence of the
consulting pharmacist were not included in the proposed rule.
Therefore, we will not address this issue in this final rule. However,
we will consider these comments if there is any future rulemaking
concerning this issue.
Definition of ``Psychotropic Drug''
Comment: Some commenters supported the proposed definition of
``psychotropic drugs.'' One commenter noted that use of inappropriate
psychotropic medications is prevalent in nursing facilities. They
indicated that psychotropic drugs are powerful and often given to
sedate or control elderly people with behavioral challenges caused by
dementia, rather than major mental disorders as defined at 42 CFR
483.102. Thus, these drugs are not being prescribed or administered in
accordance with the safeguards set out in the current regulation.
Response: We thank the commenters for their support. We believe
that the definition of ``psychotropic drug'' finalized in this rule
will not only ensure additional scrutiny when prescribed, but will also
enhance the protection for residents from inappropriate use of these
and other medications not prescribed for the residents' benefit.
However, based upon our review of the public comments, we have made
some modifications to the definition as described below.
Comment: Several commenters stated that the proposed definition was
so expansive as to make the use of psychotropic drugs unmanageable. The
commenters indicated that the proposed definition would also include
medications that do not warrant the resident protection safeguards and
additional scrutiny required when a psychotropic drug is prescribed for
a resident. One commenter recommended we use the term
``psychopharmacological medication'' instead of ``psychotropic drugs.''
One commenter said the new definition was unlikely to improve or
correct process problems.
Some commenters were especially concerned about the last part of
the definition, ``any other drug that results in effect similar to the
drugs listed'' in the previous sections. They believed this was too
expansive and included nearly all medications, such as drugs for
seizures and Parkinson's disease, NSAIDs, beta-blockers, and eye drops
for glaucoma. Another commenter also argued that the proposed
definition would include commonly used drugs that do not merit
additional scrutiny, such as Compazine, which is used for nausea.
Another commenter recommended we define the classes of drugs, but
provide exceptions in sub-regulatory guidance.
Response: After reviewing and analyzing the comments, we believe
that the definition of psychotropic drugs should be modified. We share
the commenters' concerns that the proposed definition for
``psychotropic drugs'' at Sec. 483.45(c)(3) might include many drugs
for which the additional requirements in this section would be
superfluous and unnecessary. Hence, we have removed the last element in
the proposed definition of ``psychotropic drug,'' specifically, ``(vi)
Any other drug that result in effects similar to the drugs listed in
paragraphs (c)(3)(i) through (v) of this section.'' We have also
modified the language in Sec. 483.45(c)(3) to read, ``[e]xamples of
these drugs, include but are not limited to, drugs in the following
categories . . .'' We modified this language to clarify that the
definition includes drugs from the four identified categories (anti-
psychotic, anti-depressant, anti-anxiety, and hypnotic)
[[Page 68770]]
and that CMS has the authority to add other drugs to the definition
through sub-regulatory guidance.
Comment: Some commenters support the goal of reducing the use of
unnecessary psychotropic medications in long-term care facilities, but
were concerned that the proposed requirements, including the drugs
included in the definition, were so extensive that it could result in
under-treatment of pain and other distressing symptoms and reduce the
efficacy of palliative care and the overall quality of life for the
residents. They argued that individuals suffering from pain have the
right to be informed of, choose, and receive effective pain and symptom
evaluation, management, and ongoing monitoring as part of basic medical
care, even if such pain and symptom management may result in analgesic
tolerance, physical dependence, or as an unintended consequence,
shorten the individual's life. They believe that the inclusion of both
antidepressants and opioid analgesics in the definition of
``psychotropic drugs'' would inevitably cause LTC facilities to avoid
the use of such interventions, because they would be scrutinized as
closely as anti-psychotic drugs, which have too often been misused in
long-term care settings. The proposed regulation could potentially
cause not only under-treatment but also unnecessary hospitalizations
due to necessary medication not being prescribed or lapses in
prescriptions due to limitations on PRN prescriptions of psychotropic
drugs. One commenter stated it would be difficult to survey facilities
consistently, using that definition.
Response: We agree with the commenters that the proposed definition
of ``psychotropic drug'' is too broad. We especially agree with the
commenters that objected to including opioid analgesics in the
definition. We are particularly concerned about the possibility that
including opioid analgesics in the definition could result in negative
consequences for pain management, especially since they are usually
given PRN and there could be interruptions in the prescriptions due to
the proposed limitation on PRN prescriptions. Therefore, we have
removed the drug category of ``opioid analgesics'' from the finalized
definition of ``psychotropic drug.'' Although we have not removed anti-
depressants from the definition, we have made modifications to the PRN
limitation that we believe addresses the commenters' concerns, which
are discussed below.
Although we are not finalizing ``opioid analgesics'' in the
definition of ``psychotropic drug,'' it is not our intention to in any
way to either diminish the importance of these drugs in the alleviation
of pain nor the serious consequences of their inappropriate use. Opioid
abuse is a serious public health issue with devastating consequences.
Currently, the United States is in the midst of a prescription opioid
overdose epidemic. According to the Centers for Disease Control (CDC),
in 2014, more than 28,000 people died from opioid overdose, and at
least half of those deaths involved a prescription opioid. Many more
became addicted to prescription and illegal opioids.\1\ Overall,
overdose deaths from opioids, including prescription opioids and
heroin, have nearly quadrupled since 1999.\2\ In response to this
crisis, HHS has made addressing the opioid epidemic a top priority.
---------------------------------------------------------------------------
\1\ Centers for Disease Control and Prevention. Increases in
Drug and Opioid Overdose Deaths--United States, 2000-2014. MMWR
2015; 64;1-5.
\2\ CDC. Wide-ranging online data for epidemiologic research
(WONDER). Atlanta, GA: CDC, National Center for Health Statistics;
2016. Available at http://wonder.cdc.gov.
---------------------------------------------------------------------------
HHS continues to build upon current efforts to combat the opioid
abuse epidemic, including continuing to help health professionals to
make the most informed prescribing decisions by:
Teaching medical professionals how and when to prescribe
opioids by working with lawmakers on bipartisan legislation requiring
specific training for safe opioid prescribing and establishing new
opioid prescribing guidelines for chronic pain;
Supporting data sharing for safe prescribing by
facilitating prescription drug monitoring programs (PDMP) and health
information technology integration and further adoption of electronic
prescribing practices;
Increasing investments in state-level prevention
interventions, including PDMPs, to track opioid prescribing and support
appropriate pain management.
In addition, HHS supports efforts that encourage the increased use
of naloxone, which reverses potentially fatal overdoses caused by
opioids, and expand the use of Medication-Assisted Treatment (MAT),
which combines behavioral therapy and medications to treat substance
use disorders. In addition, we strongly encourage prescribing
practitioners to follow CDC guidelines for prescribing opioids for
chronic pain. The CDC guidelines provide recommendations which focus on
the use of opioids in treating chronic pain (pain lasting longer than 3
months or past the time of normal tissue healing) outside of active
cancer treatment, palliative care, and end-of-life care. The CDC
guidelines are available at the following Web site: http://www.cdc.gov/drugoverdose/prescribing/guideline.html. We note that additional
information and guidance on the CDC guidelines, as well as guidance on
how practitioners can help to combat opioid abuse, will be included in
the sub-regulatory interpretive guidance, which will be available after
the publication of this final rule.
We believe that the requirements we have finalized in this rule
provide residents with the protections they need from the inappropriate
use of drugs, including opioids. However, we will continue to assess
the opioid epidemic and will consider whether to propose additional
requirements for providers in future rulemaking.
Comment: One commenter said that good medical practice requires
that all issues and conditions be viewed and managed in the proper
context, and not as isolated conditions or risks. Singling out certain
topics actually limits and reverses the current requirement, because it
distracts attention from other equally or more important issues.
Facilities learn only to address those medications that are on the
radar screen, resulting in problematic use of many medications that are
not under intense scrutiny.
Response: The pharmacy services requirement at Sec. 483.45 in this
final rule addresses all medications. Although any drug could be used
inappropriately, we believe that certain medications, such as
psychotropic drugs, do have more potential for inappropriate use. Such
drugs also merit additional scrutiny for the protection of the
residents. Hence, we are finalizing the requirements related to
psychotropic drugs, as modified by this rule.
Comment: One commenter recommended that instead of the proposed
definition of psychotropic drug and the PRN limitation, CMS should
instead take steps to develop palliative care quality indicators
focused on assuring that the care received is in accordance with
resident and family priorities.
Response: We did not propose the development of palliative care
quality indicators in the proposed rule. This comment is beyond the
scope of this rule. However, we will keep this comment in mind if there
is future rulemaking on this issue.
Comment: Some commenters stated that while psychotropic drugs are a
problem in LTC facilities, they opposed including anti-psychotic drugs.
They argued that combining anti-psychotic drugs into a new category
called
[[Page 68771]]
psychotropic drugs dilutes or takes attention away from anti-psychotic
drugs, which are harmful and deadly when given to most LTC facility
residents, who have dementia but no psychosis. There is less evidence
that other psychotropic drugs are as frequently prescribed
inappropriately or are as harmful for LTC facility residents. Some
suggested that the current requirements for anti-psychotic drugs be
maintained or expanded and that a separate section for psychotropic
drugs be finalized. One commenter supported expanding the definition of
drugs of concern, but also supported continued collection of data
specific to anti-psychotics. Some expressed the belief that the
proposed requirements actually diminished or reduced the focus on
antipsychotic drugs.
Response: We do not believe that expanding the requirements that
previously only applied to anti-psychotic drugs to all psychotropic
drugs would diminish or dilute the attention given to antipsychotic
drugs. Antipsychotic medications are included in the definition of
``psychotropic drugs,'' and are a focus for CMS. Since 2012, CMS has
partnered with other federal and state agencies, LTC facilities, other
providers, advocacy groups, and caregivers to form the ``National
Partnership to Improve Dementia Care in Nursing Homes'' (https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/National-Partnership-to-Improve-Dementia-Care-in-Nursing-Homes.html, accessed December 30, 2015). The initial
focus of this partnership was to encourage reduction in the use of
anti-psychotic medications. Since the launch of this initiative, there
have been significant reductions in the use of anti-psychotic
medications in LTC facilities. For specific information on the National
Partnership to Improve Dementia Care in Nursing Homes, see their Web
site that can be accessed at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/National-Partnership-to-Improve-Dementia-Care-in-Nursing-Homes.html. We also
disagree with the commenter that other medications should not receive
the same scrutiny as anti-psychotic drugs. However, we do agree that
anti-psychotics do merit more scrutiny under some circumstances. Anti-
psychotic drugs continue to be a particular concern for us due to the
serious side effects, including death, to elderly residents. In
response to comments, we have modified the general PRN limitation on
psychotropics specifically with respect to anti-psychotic drugs, which
is discussed below. We are finalizing the definition of ``psychotropic
drugs'' to include four specific categories of drugs, including anti-
psychotic drugs.
Comment: Some commenters expressed concern that the proposed
pharmacy services requirements do not include sufficient protection
against antipsychotic and psychotropic medications being used as
chemical restraints. They noted that there are epidemic levels of
chemical restraints in LTC facilities. They also expressed their belief
that there was likely underreporting of the residents who were being
given antipsychotic drugs, despite the significantly increased risk of
death from these drugs. Some commenters recommended a new section,
which would specifically address chemical restraints and the
unnecessary use of psychotropic drugs and one commenter suggested the
regulation be based on a proposed rule published in 1992 by HHS
(``Medicare and Medicaid Programs: Omnibus Nursing Home Requirements'',
57 FR 4516, February 5, 1992). Some commenters also recommended that
the final regulation establish a presumption that chemical restraints
are harmful, require written informed consent before the use of
psychotropic drugs, strengthen rather than diminish focus on misuse of
anti-psychotic drugs, require physicians to both examine residents
before prescribing antipsychotic drugs and justify that the potential
benefits clearly outweigh the potential harmful effects. Another
commenter expressed concerns about the current enforcement of the right
to be free from chemical restraints by the state survey agencies and
CMS. A commenter wanted to define ``chemical restraint'' as the
unnecessary use of a psychotropic drug.
Response: Residents have the right to be free from chemical
restraints imposed for purposes of discipline or convenience and not
required to treat the resident's medical symptoms, as already specified
in Sec. 483.12. We do not believe that a separate section on chemical
restraints is necessary. We also believe that the special requirements
previously imposed on anti-psychotics should be applied to psychotropic
medications to protect residents from inappropriate use, especially to
ensure that these medications are not used as chemical restraints and
are only used for the benefit of the resident. In addition, we do not
believe that it would be appropriate to characterize the unnecessary
use of a psychotropic drug as a chemical restraint. Concerning the
proposed rule published by HHS in 1992, we reviewed that rule during
our research for this proposed rule (80 FR 42168). We did not re-
propose some of the requirements in the 1992 proposed rule because we
believed they were too prescriptive. We do not agree that the
unnecessary use of a psychotropic drug should be defined as a
``chemical restraint.'' Some psychotropic drugs could be used
unnecessarily or have some other type of irregularity associated with
their use, and this would still not be considered a chemical restraint.
For example, a facility could fail to properly monitor a resident who
is taking a psychotropic drug; however, if this is the only
irregularity, its use would not qualify the drug as a chemical
restraint.
Specific Requirements Related to Psychotropic Drugs
Comment: Some commenters were concerned about the requirement for
gradual dose reductions (GDRs) and behavioral interventions for all
psychotropic drugs. Commenters argued that GDRs are not appropriate for
many residents on psychotropic drugs. The commenters argued that GDRs
are not appropriate for, among others, residents with mental disorders
who are stable on their current drug regimen, such as residents
diagnosed with depression, schizophrenia or bi-polar disorder or
residents with seizure disorders. Another commenter stated that the
term ``behavioral interventions'' is dated and misleading. One
commenter recommended a broader requirement that ``[n]ursing homes
should be required to use individualized care, services, attention and
environmental modifications that are directed specifically towards the
elimination or modification of the symptoms and distress for which the
drugs are prescribed.'' Another commenter questioned why the proposal
assumed that any psychotropic drug started prior to admission to the
LTC facility was appropriate and did not require the documentation but
that all of them would need a GDR along with behavioral intervention,
unless contraindicated.
Response: We agree with the commenters that GDRs are not
appropriate for all residents taking psychotropic drugs. Based upon the
comments, it is apparent there was confusion about this proposal. The
requirements finalized in this rule are intended to reduce the
inappropriate use of psychotropic drugs and the use of these drugs for
reasons other than the resident's benefit. This is consistent
[[Page 68772]]
with one of the central themes of this final rule, which is person-
centered care (see Sec. 483.21). For many residents, psychotropic
drugs are clearly appropriate to address a diagnosed disorder,
necessary for their health, and prescribed for their benefit. For those
residents taking psychotropic drugs, we expect that each resident would
be evaluated by their attending physician to determine whether GDRs and
behavioral interventions for a psychotropic drug are clinically
contraindicated. If GDRs and behavioral interventions for a particular
psychotropic drugs are clinically contraindicated, the physician should
document that in the resident's medical record. Many of the examples
provided by commenters would likely be determined to clinically
contradict GDRs and behavioral interventions. For example, a resident
who is taking an anti-anxiety or anti-depressant medication for a
diagnosed condition and who was prescribed the medication for their
benefit and who is stable would likely not need these interventions.
Otherwise, we would expect that the attending physician, in conjunction
with the IDT (Sec. 483.21((b)), to consider GDRs and behavioral
interventions and institute a plan that is appropriate for that
resident. For that reason, we are finalizing as proposed the
requirement for GDRs for residents taking psychotropic drugs, ``unless
clinically contraindicated'' (Sec. 483.45(e)(2)).
Concerning the recommendation that we not finalize the term
``behavioral interventions,'' we note that facilities may use any
terminology they choose to describe these activities; however, we
believe that behavioral interventions is a commonly used term that is
universally understood. Thus, we have finalized this requirement using
the term ``behavioral interventions.''
We disagree with the commenter that said our proposal assumed that
any psychotropic drug prescribed prior to admission to the LTC facility
was appropriate and did not require the same documentation. Section
483.45(e) requires that residents who have not used psychotropic drugs
not be given those drugs unless the medication is necessary to treat a
specific condition as diagnosed and documented in the clinical record,
but that all resident who received psychotropic drugs receive GDRs and
behavioral interventions, unless clinically contraindicated, in an
effort to discontinue these drugs. This requirement does not assume
that psychotropic drugs that were prescribed prior to admission are
appropriate. It is intended to ensure that residents are not put on
psychotropic drugs without there being a diagnosed and documented
condition for which they are appropriate. Then, all residents who are
on psychotropic drugs must then receive the GDRs or behavioral
interventions, unless they are clinically contraindicated, as discussed
above.
Comment: One commenter recommended that psychotropic drugs should
only be administered to a resident after the facility obtained informed
consent from the resident or their representative.
Response: We have finalized the requirement for comprehensive
person-centered care planning, which requires that the participation of
the resident and the resident's representative, to the extent
practicable (Sec. 483.21(b)). The resident and their representative
should be involved in the resident's care. We believe that requiring a
separate informed consent solely for psychotropic drugs would be
burdensome for the facilities and unnecessary. It could also interfere
with the resident's care if the resident needs a psychotropic drug
urgently.
Comment: One commenter recommended that we require that
psychotropic medications be used for FDA-approved conditions without
limitations. We understand this to mean that the commenter wants to
have psychotropic medications used only for the conditions set out in
the medication's FDA approval. Alternatively, they suggested we change
the language to either define ``antipsychotic use in dementia'' or
``psychotropic in dementia to treat'' whatever condition or disorder
the drug is intended to treat the resident.
Response: We do not believe that the additional language
recommended by the commenter is necessary. In addition, restricting the
ability of health care practitioners to prescribe medication for uses
other than those that have received FDA approval could violate the
prohibition against interference with the practice of medicine at
section 1801 of the Act.
Comment: Some commenters were concerned about the effects these
requirements could have on the facility. Another commenter was
concerned that with such an increase in documentation requirements,
some LTC facilities could unintentionally be out of compliance, with
our requirements, resulting in a cascading sequence of penalties. The
additional time and resources to correct any non-compliance would take
away from resident care.
Response: We believe that the requirements in this final rule are
reasonable and necessary. We also believe that these requirements are
not overly burdensome for the LTC facilities. Additional sub-regulatory
guidance to assist LTC facilities in complying with the requirements in
this final rule will be provided after this final rule is published.
Limitations on PRN Prescriptions of Psychotropic Drugs
Comment: Many commenters were concerned about the 48 hour
limitation on PRN prescriptions for psychotropic drugs. One commenter
wanted to prohibit PRN orders for all anti-psychotic drugs. The
commenter stated that physicians should not delegate the responsibility
for PRN order for psychotropic drugs to the nursing staff. They
believed that it was inappropriate to have the nursing staff determine
when and for how long anti-psychotics and other psychoactive drugs were
to be administered to a resident.
Response: Based upon our own experience with LTC facilities, as
well as other comments, there are situations in which PRN prescriptions
for psychotropic drugs are appropriate for residents. Some residents
may require a therapeutic trial to determine if a particular medication
addresses the diagnosed disorder and what the correct dosage should be.
In addition, some residents may only require a psychotropic drug for
intermittent symptoms. We are also concerned that prohibiting PRN
prescriptions for psychotropic drugs could result in either
overmedication from physicians prescribing these drugs on a specific
schedule when a PRN order would be appropriate or under medication from
physicians not prescribing drugs they believe are needed for the
resident's health. In addition, we believe that it is appropriate, and
within their scope of practice, for nurses to make decisions on when
drugs prescribed via PRN orders should be administered, including
psychotropic medications. We also believe that prohibiting PRN orders
for psychotropic drugs could violate the Act's prohibition against
interference with the practice of medicine at section 1801 of the Act.
Thus, we will not prohibit the PRN prescription of psychotropic drugs.
Comment: Many commenters stated that the 48-hour limitation on PRN
prescriptions for psychotropic drugs could result in serious unintended
consequences. Some commenters argued that the 48-hour limitation could
be difficult, if not impossible to comply with, especially in rural
areas which may have limited access to physicians or other prescribers.
Some commenters stated that the physicians or other health care
practitioners who covered
[[Page 68773]]
their facilities, such as nurse practitioners, not only covered their
facilities but also had their own private practices or covered other
facilities. By increasing the burden to these providers, it could
become more difficult to locate providers who would be willing to
provide services in their facilities. Other facilities also noted
having limited access to a physician or other health care practitioner
who could renew a prescription for a psychotropic drug every 48 hours.
Unless the physician was coming to the facility, the nurse would likely
have to call the physician and get a verbal order to renew the
prescription. Depending upon the number of these prescriptions, this
could be time-consuming for both the nurse and the physician. This
requirement also does not provide for the physician to assess the
resident in person. If the prescription was renewed over the phone,
there might be minimal, if any, assessment of the resident before the
prescription would be renewed. Commenters indicated that the proposed
requirements could also result in more frequent transfers to the
emergency room due to interruptions in residents' drug regimens of
essential drugs, such as could happen if the resident was on
antipsychotic drugs or pain medication. Since it could require longer
than 48 hours to assess a resident's response to some medication, such
as during therapeutic trial or GDR, this proposed requirement could
result in numerous renewals of the same prescription before the
physician would have time to reasonably assess whether there should be
any change in the prescription. In some cases, physicians might avoid
this limitation in cases in which they believe it is not appropriate by
writing the prescription for regular intervals when they would
otherwise determine that a PRN prescription would be appropriate for a
resident. Other commenters suggested a longer timeframe, such as 72
hours or 7 days. One commenter recommended at least 7 days and some
commenters recommended CMS delete the limitation on PRN medications
entirely. One commenter stated that the current surveyor guidance
defines an acute psychiatric situation and allows use of
psychopharmacological medications for up to a week before additional
documentation is needed. One commenter suggested there be a requirement
that facilities develop policies with the medical director and/or
medical staff to define the review process for all PRN medications,
including timing of the review and documentation expectations. Another
commenter recommended an exception for residents who are expected to be
in the facility for a short-term, since these residents are expected to
return to their primary care providers upon discharge.
Response: We agree with the commenters that our proposal for a 48-
hour limitation on PRN prescriptions for psychotropic drugs could
result in unintended consequences that could be detrimental to the
residents' health in some cases and might also be burdensome for some
facilities. In addition, based on our experience with LTC facility
residents and comments we received, there are cases in which it is
appropriate for a particular drug to be given PRN for a prolonged
period of time. For example, some residents could require anti-
depressants or anti-anxiety medications long-term but only
intermittently based upon the resident's symptoms. As described above,
we believe that some of the commenters' concerns have been addressed by
the modifications made to the definition of ``psychotropic drugs'' in
this final rule, especially by not finalizing opioid analgesics as a
category of drugs to be included. However, we continue to be concerned
about PRN prescriptions. As we were conducting research for the
proposed rule, we became aware of concerns about residents remaining on
PRN prescriptions for prolonged periods of time when it might not be
appropriate. Based upon comments, we now believe that a 48-hour
limitation is overly restrictive and burdensome.
As finalized in this rule, all residents, including those on
psychotropic drugs, will have their medical records reviewed by a
pharmacist in conjunction with their monthly DRR. This requirement
provides additional review, which we believe is beneficial; however, we
are concerned that a resident that is, for instance, treated for 30
days with a psychotropic drug, especially on a PRN basis, could be
receiving treatment that was inappropriate or detrimental. We proposed
a 48-hour limitation on PRN orders of psychotropic drugs to address
this concern. However, as noted above, many commenters disagreed with
the 48-hour limitation. Some commenters recommended different
limitations, such as a 72-hour or 7 day limitation on PRN prescriptions
of psychotropic drugs. Another commenter suggested at least 7 days. We
are concerned that the recommended 72-hour or 7 day limitation could be
detrimental to some residents and still be burdensome for facilities
that have limited access to physicians and other prescribing
practitioners. When a facility has limited access to physicians and
other prescribing practitioners, there could be an interruption in a
resident receiving necessary medication due to a PRN prescription
expiring before the prescribing practitioner could renew or write
another prescription. This interruption could be detrimental to the
resident. For example, as one commenter pointed out, an interruption in
anti-anxiety medications could result in the resident experiencing
withdrawal symptoms. Based on the limited access some facilities have
to physicians and other prescribing practitioners and the potential for
detrimental effects to residents from interruptions in their medication
regimen, we believe the limitation on PRN prescriptions for
psychotropic drugs should be longer and agree with the commenter that
recommended at least a 7 day limitation. As finalized in this rule at
Sec. 483.45(c)(2) all residents will have a pharmacist reviewing their
drug regimen monthly. However, a physician is only required to visit a
resident at least once every 30 days for the first 90 days after the
resident is admitted to the facility and every 60 days after that (42
CFR 483.70(c)). We believe that 30 days is too long for a resident to
be on a psychotropic drug on a PRN basis without the physician or other
prescriber having to evaluate whether the resident should continue on
the subject drug according to the PRN order. Thus, we are establishing
a 14-day limitation on psychotropic drugs. By establishing this 14-day
limitation, each resident who is taking a psychotropic drug will have
his or her prescription reviewed by the physician or prescribing
practitioner every 14 days and also by a pharmacist every month. Since
there was no previous limitation on PRN prescriptions for psychotropic
or anti-psychotic drugs, this will provide residents receiving this
type of medication on a PRN basis additional protections against
unnecessary drugs, drugs with another type of irregularity, and drugs
that might be prescribed for reasons other than the resident's own
benefit. We also believe that a 14-day limitation on PRN prescriptions
for psychotropic drugs should not be burdensome for facilities.
Therefore, we have finalized a 14-day limitation on PRN prescriptions
for psychotropic drugs, subject to the exceptions discussed below.
We are also aware that some residents might require psychotropic
drugs on a PRN basis for prolonged periods of time. Thus, we have
established an exception to this 14-day limitation. For psychotropic
drugs that the attending physician believes a PRN prescription
[[Page 68774]]
for longer than 14 days is appropriate, the attending physician can
extend the prescription beyond 14 days for the resident by documenting
their rationale in the resident's medical record. However, we believe
this exception would be inappropriate for anti-psychotic drugs. If the
attending physician believes that the resident requires an anti-
psychotic drug on a PRN basis for longer than 14 days, he or she will
be required to write a new PRN prescription every 14 days after the
resident has been evaluated. Detailed requirements for this evaluation
will be developed in sub-regulatory guidance.
Concerning the recommendation that we require a facility to have
policies and procedures regarding PRN prescriptions and the facility's
review of these prescriptions, we disagree with the commenters.
Facilities need to have the flexibility to determine the policies and
procedures they require, consistent with this rule and other sub-
regulatory guidance, to manage their facility. We believe that the
requirements finalized in this rule are sufficient to provide the
scrutiny psychotropic drug prescriptions require to protect residents.
However, we encourage facilities to develop their own policies and
procedures concerning PRN prescriptions for their facility.
Concerning an exception for short-term residents, we disagree with
the commenter. All of the requirements in this final rule, as well as
other requirements and sub-regulatory guidance, apply to all residents,
regardless of the length of their stay in the facility. Short-term
residents deserve the same quality of care and protection of their
rights as any other resident in a facility.
Comment: One commenter recommended that LTC facilities be required
to draft and complete an Antipsychotic Drug/Dementia Care Compliance
Report for each resident taking an antipsychotic drug. The facility
would be required to identify the resident's diagnoses, all attempted
non-pharmaceutical interventions, consent, and recommendations for, and
physician response to, consultant pharmacists' recommendations for
gradual dose reductions. These reports would be signed by all members
of the IDT, certifying compliance with all federal requirements.
Surveyors would then review these as part of the annual survey or any
relevant complaint survey.
Response: We believe that the requirements in this final rule
provide the necessary scrutiny and protections residents need from
inappropriate drug use. We also believe that requiring a separate
report, especially with all the requirements suggested by the
commenter, would be overly burdensome for some facilities. However,
facilities themselves could choose to prepare such reports.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
We have added Sec. 483.45(c)(5) to require LTC facilities
to develop and maintain policies and procedures for the monthly DRR,
which include but are not limited to, timeframes for the various steps
in the process and procedures a pharmacist must take when he or she
believes immediate action is required to protect the resident.
We have modified the definition of a psychotropic drugs in
Sec. 483.45(c)(3) by removing paragraphs (v) and (vi).
We have modified the limitation for PRN prescriptions of
psychotropic drugs by extending the time for PRN prescription to 14
days by modifying Sec. 483.45(e)(4).
We have added a specific limitation on PRN prescriptions
for anti-psychotic drugs by modifying Sec. 483.45(e)(5).
P. Laboratory, Radiology, and Other Diagnostic Services (Sec. 483.50)
Currently, Sec. 483.75(j) sets forth requirements regarding
laboratory services and Sec. 483.75(k) sets forth requirements for
radiology and other diagnostic services that a facility must provide or
obtain to meet the needs of its residents. These regulations are
currently located in Sec. 483.75 ``Administration,'' which largely
focuses on the manner in which a facility must operate to provide
quality care to its residents. Following the reorganization of subpart
B, we proposed to relocate and re-designate both Sec. 483.75(j) and
Sec. 483.75(k) to a new Sec. 483.50 entitled, ``Laboratory,
Radiology, and Other Diagnostic Services.'' This section includes all
of the content from current Sec. 483.75(j) and Sec. 483.75(k)
relocated to Sec. 483.50(a) and Sec. 483.50(b), respectively. We
proposed to retain the existing requirements with some revisions, as
discussed in detail below.
Current Sec. 483.75(j)(a)(2)(i) and Sec. 485.75(k)(2)(i), require
that a facility must provide or obtain laboratory and radiology and
other diagnostic services ``only when ordered by the attending
physician.'' We proposed to clarify these requirements by removing the
phrase, ``the attending physician'' and replacing it with ``a
physician, a physician assistant, nurse practitioner, or clinical nurse
specialist.'' The revised requirements were proposed to be located at
Sec. 483.50(a)(2)(i) and (b)(2)(i), respectively. Furthermore, we
proposed to allow for these orders only if the practitioners were
acting in accordance with state law, including scope of practice laws
and facility policy.
Additionally, current Sec. 483.75(j)(2)(ii) and (k)(2)(ii) require
that facilities ``promptly notify the attending physician of the
findings'' once laboratory results have been obtained. We proposed to
allow increased flexibility under this requirement to provide that
other practitioners have the ability to receive laboratory and
radiology and other diagnostic results if these practitioners ordered
the tests. Specifically, we proposed to revise Sec. 483.50(a)(2)(ii)
to permit that the ordering physician, physician assistant, nurse
practitioner, or clinical nurse specialist to be notified of laboratory
results. In addition, we proposed in Sec. 483.50(a)(2)(ii) to clarify
that the laboratory would have to promptly notify the ordering
professional if results fell outside of clinical reference or expected
``normal'' ranges, unless the orders for the test or the facility's
policies and procedures required otherwise.
Comment: Commenters supported the proposal to clarify that a
physician assistant, nurse practitioner, or clinical nurse specialist
could order laboratory, radiology, and other diagnostic services for a
resident in accordance with state law, including scope of practice
laws. Commenters noted that this revision aligned with the literature
that supports better quality with the use of non-physician
practitioners and is consistent with state licensure laws. Commenters
also supported the proposal to allow other practitioners to receive
laboratory, radiology, and other diagnostic results if these
practitioners ordered the tests. Commenters noted that this revision
would help to provide results in a timelier manner and improve care to
the resident.
Response: We appreciate the feedback and support from commenters.
We agree and believe that this revision will ultimately increase access
to care and also reduce some of the burden on facilities.
Comment: Some commenters opposed our proposal at Sec.
483.50(a)(2)(ii) to clarify that the laboratory would have to promptly
notify the ordering professional if results fell outside of clinical
reference or expected ``normal'' ranges; the commenters were skeptical
that the policy would improve the notification process. Commenters
noted that the term ``promptly'' is not defined, and used multiple
times throughout the regulation with varying timeframes. Commenters
also did not believe there
[[Page 68775]]
was a need to notify practitioners of results that fell outside of the
clinical reference range. Specifically, the commenters indicated that
the proposed language was too broad, did not provide enough
flexibility, and stated that the revision would actually increase
unnecessary notification of practitioners and result in unnecessary
repeat testing. One commenter recommended revising the language to
require that practitioners be notified when results fall outside a
``critical value'' because this term is defined by laboratories and
would avoid unnecessary calls when a result was outside the clinical
reference, but not critical and trending in the right direction.
Another commenter noted that many abnormal lab values are not
necessarily associated with any medical problems, nor do they require
immediate intervention. The commenter recommended removing the phrase
``lab values that fall outside of normal range'' and revising the
language to require facilities to develop a policy and procedure for
notifying the ordering practitioner of test results in a timely manner
to assure that results requiring intervention or new orders are
addressed. Another commenter also recommended replacing the term
``promptly'' with ``timely''.
In contrast, some commenters indicated that facilities should be
urged to notify practitioners of abnormal results as soon as possible
and recommended that the term ``promptly'' be replaced with
``immediately''. Commenters noted that the standard of practice for
nurses is to notify practitioners immediately of results that fall
outside of clinical reference ranges regardless of facility policy or
physician order. One commenter recommended further that the language be
revised to remove the flexibility allowing notification to be based on
facility policy or procedure. One commenter recommended that facilities
also be required to notify the resident and their representative when
they notify the practitioner of test results.
Response: We appreciate the commenters' feedback, but disagree that
the proposed language will increase unnecessary notifications of
practitioners. In the proposed rule we indicated that the proposal
would revise existing language at Sec. 483.75(k)(2)(ii) which stated
that facilities must ``promptly notify the attending physician of the
findings''. We believe that by specifying that the ordering
practitioner be notified of the results, many ``unnecessary''
notifications will be eliminated by ensuring that results are received
by the individual who requested the information. We also disagree that
the proposed language is too broad and does not provide flexibility.
The proposed language provides that notification of the ordering
physician should align with facility policy and procedure. It is also
common practice for health care settings to establish procedures for
determining normal/abnormal lab values. Therefore, in situations that
may provide an abnormal result, but do not warrant an emergency
response or repeat test, facilities have the flexibility to address
these situations in their policies and determine how notification
should take place. In addition, we note that the interpretative
guidance to this final rule may also provide more detailed information
regarding how a facility may choose to establish guidelines for
promptly notifying practitioners of test results.
We do not believe that facilities should notify the resident and
their representative of results when they notify the practitioner. As
commenters have indicated, there are many aspects of a person's care
and medical condition to balance when reviewing the results of
laboratory tests. We believe that it would be inappropriate to
prematurely notify a resident of results before a practitioner
responsible for the resident's care has had an opportunity to assess
the results. This action could cause unnecessary anguish or result in
the delivery of improper information to the resident and their
representative.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal without modification.
Q. Dental Services (Sec. 483.55)
Under the reorganization of subpart B, requirements regarding
dental services remain at Sec. 483.55. In the proposed rule, we
indicated that section 1862(a)(12) of the Act states, in part, that
Medicare does not cover dental services such as the care, treatment,
filling, removal, or replacement of teeth or structures directly
supporting teeth. Medicaid state plans, by contrast, vary in their
coverage of dental services. However, both sections 1819(b)(4)(A)(vi)
and 1919(b)(4)(A)(vi) of the Act include requirements related to the
provision of dental services. Currently, Sec. 483.55 requires that
facilities assist residents in obtaining appropriate dental services at
the resident's expense for SNF residents and as covered under the state
plan for NF residents.
We proposed limited changes to update and clarify this section.
First, we proposed to add a new Sec. 483.55(a)(3) to clarify that a
facility may not charge a resident for the loss of or damage to
dentures when the loss or damage is the responsibility of the facility.
Second, we proposed to re-designate existing Sec. 483.55(a)(3) as
Sec. 483.55(a)(4) and revise Sec. 483.55(a)(4) by adding the phrase
``or if requested'' to clarify that if a resident asks for assistance
in scheduling a dental appointment, the facility would be required to
provide the assistance. Third, we proposed to modify the section by
adding language at new Sec. 483.55(a)(4)(ii) and Sec. 483.55(a)(5)
regarding transportation and referrals for dental services. Finally, we
proposed to re-designate Sec. 483.55(a)(4) as Sec. 483.55(a)(5) and
would require that referral for dental services occur in 3 business
days or less from the time the loss or damage to dentures is identified
unless the facility can provide documentation of extenuating
circumstances that resulted in the delay. We also proposed to make the
same changes at Sec. 483.55(b)(2) and Sec. 483.55(b)(3) to apply to
nursing facilities and add a new Sec. 483.55(b)(4) to require that
facilities assist residents to apply for reimbursement of dental
services as an incurred medical expense under the state plan as
appropriate.
Comment: Several commenters recommended we include stronger
requirements for dental care and oral hygiene, as good dental care and
oral hygiene can result in cost savings.
Response: We agree that dental care and oral hygiene are important.
In the proposed rule we discuss the importance of dental care and oral
hygiene (80 FR 42197). We have included requirements related to oral
hygiene at finalized Sec. 483.25(a)(2), which requires that a resident
who is unable to carry out activities of daily living receives the
necessary services to maintain good nutrition, grooming, and personal
and oral hygiene. With respect to dental care, as noted in the proposed
rule, 80 FR 42205, pursuant to section 1862(a)(12) of the Act, Medicare
does not cover many dental services. Medicaid states plans vary widely
in providing dental services. In keeping with these limitations, we
address facility responsibilities related to assisting residents in
obtaining dental services in Sec. 483.55. We did not propose to change
existing regulations at 42 CFR 483.55(a)(1)and (2) and (b)(1), which
require facilities to provide or obtain dental services to meet the
needs of each resident.
Comment: One commenter suggested we explicitly recognize dental
hygienists.
Response: We thank the commenter for this suggestion, but decline
to incorporate it at this time. We proposed and are finalizing changing
references to
[[Page 68776]]
a ``dentist's office'' to ``dental services'' in order to recognize
that dental care may be provided in dental clinics, dentals schools, or
even on site. These requirements are broad enough to encompass dental
services provided by a dental hygienist working within their scope of
practice under state law.
Comment: Some commenters stated that obtaining dental services for
residents is difficult due to difficulty finding providers, limitations
in Medicaid coverage, and resident preferences regarding dental care.
Some commenters felt existing regulations already address dental
concerns and our proposed revisions were unnecessary.
Response: We thank the commenters for their information. A resident
or, when applicable, their representative, has the right to determine
what dental care they will consent to, just as they have the right to
request or refuse treatment as specified in Sec. 483.10. Medicaid
coverage of dental services is outside the scope of this regulation. We
would expect a facility to document extenuating circumstances that
delay obtaining necessary dental care. We disagree that our proposed
revisions are unnecessary. Our proposed revisions address areas where
we are aware problems have occurred or where we are aware of
opportunities to improve access to care. We note that other commenters
have suggested that these revisions are useful and that we do not go
far enough in ensuring adequate resident protections in this area.
Comment: One commenter recommended we modify proposed Sec.
483.55(a)(3) and Sec. 483.55(b)(4) by adding ``A facility must have a
policy identifying those circumstances when the loss or damage of
dentures is the facility's responsibility . . .''
Response: We agree that adding this statement adds clarity and have
modified these provisions to state that the facility must have a policy
identifying those circumstances when the loss or damage of dentures is
the facility's responsibility.
Comment: Commenters expressed concern that facility policies for
lost or damaged dentures would be written in order to absolve the
facility of any responsibility. One commenter stated that this would
allow a facility to develop a policy that would allow staff to damage
the resident's property and not replace it and this would affect the
resident's ability to consume meals. Other commenters stated that the
facility should not be held financially responsible when residents
throw away, damage, or lose dentures or when the loss is a result of a
resident's actions or failure to abide by facility policies.
Response: As noted above, we have modified the proposed requirement
to state that the facility must have a policy identifying those
instances when the loss or damage of dentures is the facility's
responsibility. We do not believe a blanket policy of facility non-
responsibility would meet the modified requirement. In addition,
proposed Sec. 483.15(a)(2)(iii) prohibits facilities from requesting
or requiring residents or potential residents to waive any potential
facility liability for losses of personal property. We have also
modified the provision to require that the facility not only document
extenuating circumstances that cause a delay in making a referral for
dental services, but also require that the facility document efforts to
ensure that the resident is able to eat and drink adequately while
awaiting the dental services. We believe that the cumulative effect of
these provisions address the commenters' concerns. We defer additional
discussion to sub-regulatory guidance.
Comment: Some commenters objected to the three day time frame for
making a referral for dental services to replace lost or damaged
dentures, stating that it was unreasonable. One commenter asked that we
clarify that the 3-day time frame applied to the referral, not to
obtaining repaired or replaced dentures. One commenter suggested that 5
to 7 business days would be a more appropriate time-frame for requiring
a facility to make a referral.
Response: The three-day time frame is to make the referral, not to
complete the dental appointment, or obtain repaired or replaced
dentures. We continue to believe that such a time frame is necessary to
ensure prompt referrals and minimize avoidable delays, but understand
that there may be circumstances that prevent a timely referral.
Extenuating circumstances could include issues such as the resident's
preferred provider's office not being open or the need to obtain an
insurance pre-authorization. Facilities would be expected to document
such circumstances.
Comment: One commenter suggested the focus should be on ensuring
that residents could eat and drink adequately while awaiting dental
services.
Response: We agree and have added this to the regulatory
requirement. However, we do not believe that this should be in lieu of
documenting extenuating circumstances and maintain our proposed
requirement that facilities document extenuating circumstances that
lead to delayed referrals.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
We are adding a requirement at Sec. 483.55(a)(3) and
(b)(4) that the facility must have a policy identifying those instances
when the loss or damage of dentures is the facility's responsibility.
We are adding a requirement at Sec. 483.55(a)(5) and
(b)(3) that the facility must document what they did to ensure that the
resident could eat and drink adequately while awaiting dental services.
R. Food and Nutrition Services (Sec. 483.60)
We proposed the revisions described below in an effort to improve
the nutritional status of LTC facility residents. In the proposed rule,
we included a detailed discussion regarding dietary standards for
residents of LTC facilities. We encourage readers to refer to the
proposed rule for this discussion.
We proposed to re-designate existing Sec. 483.35 ``Dietary
Services'' as new Sec. 483.60 ``Food and Nutrition Services'' and
revise the introductory language to include taking resident preferences
into consideration. We proposed to revise Sec. 483.60(a) to require
that the facility employ sufficient staff with the appropriate
competencies and skills sets to carry out the functions of the food and
nutrition service, taking into consideration resident assessments,
individual plans of care and the number, acuity and diagnoses of the
facility's resident population.
In Sec. 483.60(a)(1) we proposed to retain the requirement that a
facility employ a qualified dietitian on a full-time, part-time or
consultant basis and update the requirements to be considered a
qualified dietitian. We also proposed to require minimum qualifications
for dietitians working in SNFs or NFs. We proposed to require that a
qualified dietitian must either be registered by the Commission on
Dietetic Registration of the Academy of Nutrition and Dietetics, or be
recognized (licensed or certified) by the state in which the SNF or NF
operates as a dietitian or clinically qualified nutrition
professionals. We also proposed to allow up to 5 years after the
effective date of the regulation for dietitians hired or contracted
prior to the effective dates of the revised regulations to meet these
requirements.
In re-designated Sec. 483.60(a)(2), we proposed to continue to
require that, if a qualified dietitian or other clinically qualified
nutrition professional was not employed full-time, the facility would
have to designate a person to serve as the director of food and
nutrition
[[Page 68777]]
services who would receive frequently scheduled consultation from a
qualified dietitian. We proposed to require that the director of food
and nutrition services, if hired or designated after the effective date
of these regulations, would have to be a certified dietary manager or
certified food service manager as evidenced by meeting national
certification standards for a certified dietary manager such as those
by the Association of Nutrition and Foodservice Professionals (ANFP),
or for a certified food manager such as those by the International Food
Service Executives Association or the Food Management Professional
certification through the National Restaurant Association. If already
serving as a director of food and nutrition service on the effective
date without one of these certifications, the individual must obtain a
certification no later than 5 years after the effective date of the
rule. Alternatively, we proposed that the director of food and
nutrition services could also meet the proposed requirement through
specialized education or training in food service management and safety
resulting in an associate's or higher degree in hospitality or food
service management. Finally, we proposed that the director of food and
nutrition services could meet our proposed requirement if he or she met
applicable state requirements to be a food service manager or dietary
manager.
In Sec. 483.60(a)(4), we proposed to require that the facility
provide sufficient support personnel with the appropriate competencies
and skills sets to carry out the functions of the food and nutrition
service, taking into consideration resident assessments, individual
plans of care and a facility assessment that includes the number,
acuity and diagnoses of the facility's resident population.
We proposed a new Sec. 483.60(b) to specify that a member of food
and nutrition services also participate in the IDT. At Sec.
483.60(c)(1), we proposed to change ``Recommended Dietary Allowances''
to ``established national guidelines or industry standards.'' We also
proposed to add a new Sec. 483.60(c)(4) to require that menus reflect
the religious, cultural, and ethnic needs of the residents, as well as
input received from residents or resident groups.
At Sec. 483.60(d), we proposed minor revisions to incorporate the
addition of drinks, to clarify that ``proper'' meant both safe and
appetizing, to include consideration of allergies, intolerances, and
preferences in preparing food, and to ensure that water and other
dietary liquids are available to residents and provided, consistent
with resident needs and preferences.
At new Sec. 483.60(e) ``Therapeutic diets,'' we proposed to retain
the requirement in current Sec. 483.35(e) that therapeutic diets be
prescribed by the attending physician. However, we proposed to add a
new Sec. 483.60(e)(2) to allow the attending physician to delegate to
a qualified dietitian or other clinically qualified nutrition
professional the task of prescribing a resident's diet, including a
therapeutic diet, to the extent allowed by state law.
We proposed to modify Sec. 483.35(f) in re-designated Sec.
483.60(f) regarding frequency of meals. Specifically, we proposed to
modify the requirement that facilities provide and residents receive
three meals per day at regular times by adding language to clarify that
meals should be served at times in accordance with resident needs,
preferences, requests and the plan of care. We further proposed to
eliminate the requirement that there be no more than 14 hours between a
substantial evening meal and breakfast the following day, except when a
substantial bedtime snack is provided. Instead, we decided to focus on
when residents prefer to eat and on ensuring that meal service is
provided to meet residents' clinical and nutritional needs. We proposed
to require that the facility provide suitable, nourishing alternative
meals and snacks for each resident who want to eat at non-traditional
times or outside of the facility's scheduled meal service times, in
accordance with their respective plans of care. We indicated in the
proposed rule that ``suitable, nourishing alternative meals'' would
mean that when a resident missed a meal or snack, an alternative of
comparable nutritive value to the missed meal or snack would be
provided.
We proposed to re-designate existing Sec. 483.35(g) as new Sec.
483.60(g) and revise it to require that the facility provide not only
adaptive eating equipment and utensils for residents who need these
devices but also provide the appropriate staff assistance to ensure
that these residents can use the assistive devices when consuming meals
and snacks.
We proposed to re-designate existing Sec. 483.35(h) as new Sec.
483.60(h) and retain, with some revisions, provisions for paid feeding
assistants, as set out in the 2003 final rule (68 FR 55528). Section
483.35(h)(2)(ii) currently requires that, in an emergency, a paid
feeding assistant must call a supervisory nurse for help ``on the
resident call system.'' We proposed to eliminate the reference to the
resident call system. We also proposed to have the IDT make the
determination of whether a paid feeding assistant would be appropriate
for a resident.
We proposed to clarify in new Sec. 483.60(i)(1)(i) that facilities
could procure food directly from local producers, farmers or growers,
in accordance with state and local laws or regulations. We further
proposed to clarify in new Sec. 483.60(i)(1)(ii) that this provision
would not prohibit or prevent facilities from using produce grown in
facility gardens, subject to compliance with applicable safe growing
and handling practices, such as the use of pesticides in accordance
with manufacturers' instructions. Consistent with Sec. 483.70(b), we
proposed to specify in Sec. 483.60(i)(2) that facilities would be
required to store, prepare, distribute, and serve food in accordance
with professional standards for food service safety. We proposed to add
a new Sec. 483.60(i)(3) to require a facility to have a policy in
place regarding use and storage of foods brought to residents by
visitors to ensure safe and sanitary handling.
Comment: One commenter suggested that we reference the new Dining
Practice Standards agreed to by 12 national standard setting
organizations.
Response: We thank the commenter. We mentioned in the preamble to
the proposed rule an August 2011 report by the Pioneer Network Food and
Dining Clinical Standards Task Force but did not provide the location
of that resource. We would encourage facilities and practitioners to
read the report. It is available at http://www.pioneernetwork.net/Providers/DiningPracticeStandards/.
Pioneer Network also has a ``how to'' resource called the ``Dining
Standards Toolkit'' that may assist LTC facilities in their efforts to
understand and meet the updated requirements. In addition, CMS produced
a video related to these standards. The video can also assist LTC
facilities in their efforts to understand and meet the updated
requirements. The video is available at http://surveyortraining.cms.hhs.gov/pubs/VideoInformation.aspx?id=1101&cid=0CMSNEWDINPRSTAN.
Comment: Some commenters felt that our proposed requirement that
the facility must employ sufficient staff with the appropriate
competencies and skills sets to carry out the functions of the food and
nutrition service, taking into consideration resident assessments,
individual plans of care and the number, acuity and diagnoses of the
facility's resident population in accordance with the facility
assessment required at Sec. 483.70(e) was subjective and not specific
enough. Some
[[Page 68778]]
commenters felt that the term ``sufficient'' was unclear and impossible
to objectively measure. One commenter requested that we define
``support personnel'' or ``support staff''.
Response: Our proposal specifically requires that a facility have a
dietitian, a food service manager in facilities that do not have a
full-time dietitian, and enough support staff with the appropriate
competencies and skills to carry out the functions of the food and
nutrition service. Facilities have widely varying populations, and
census. Thus, we would expect a facility to use the newly required
facility assessment to determine both the competencies and skills that
are required to effectively carry out the functions of the food and
nutrition services, as well as the number of support staff that are
needed. Given the potential diversity of each facility, we continue to
believe that a ``one-size-fits-all'' approach to food and nutrition
services serves neither the residents nor the facility. A facility
should have some flexibility to determine how to best meet its
resident's needs in the area. Furthermore, a facility should be able to
articulate how it made its staffing decisions and how various factors,
including the facility assessment and resident-specific needs, are
incorporated into that decision making.
We note that the term ``sufficient support personnel'' is an
existing term in the current requirements for long-term care
facilities. It is defined in current sub-regulatory guidance as `enough
staff to prepare and serve palatable, attractive, nutritionally
adequate meals at proper temperatures and appropriate times and support
proper sanitary techniques being utilized.'' It would include any staff
in addition to the qualified dietitian or other clinically qualified
nutrition professional and the food service manager that are needed to
carry out the functions of the food and nutrition service and meet the
requirements of this section. We disagree that the term ``sufficient''
is unclear and impossible to objectively measure. ``Sufficient'' staff
would be mean an adequate number, or enough staff, who have the skills
and knowledge to safely and effectively deliver the care that residents
need and that is the responsibility of the food and nutrition service.
Direct observation and interview questions can be used to determine if
residents are receiving the food and nutrition services they require,
in accordance with his or her plan of care, in a safe, timely, and
effective manner. Factors such as timely meal service, food that is
served at an appropriate temperature and in an appetizing form,
available assistance for residents who require assistance to eat a
meal, as well as resident-specific issues such as unintended weight
loss and dehydration may all be indicators considered when determining
if a facility has sufficient staffing. We believe that surveyor
training on these requirements and questions such as those identified
above will allow surveyors to make evidence-based decisions about
whether or not a facility has or does not have sufficient staffing.
Comment: One commenter suggested not referring to `alternative' or
`substitute' meals, but instead refer to choices and options and ``at
times of the resident's choosing.''
Response: We agree and have revised the language at Sec.
483.60(d)(5).
Comment: One commenter recommended that we modify our proposal for
therapeutic diets to allow the attending physician or that physician's
covering physician to delegate the task a prescribing a resident's
diet, including a therapeutic diet, to a registered or licensed
dietitian to the extent allowed by state law.
Response: Please see our discussion regarding section Sec.
483.30(f). We are retaining the existing regulatory language which
states that the attending physician must prescribe a therapeutic diet
and we are finalizing our proposal, with some modification, to allow
the attending physician to delegate this task to a qualified dietitian
or other clinically qualified nutrition professional. We note that the
qualified professional to whom the task is delegated must not only be
acting within their scope of practice under state law, they must also
be under the supervision of the physician.
Comment: One commenter did not support our proposal to allow an
attending physician to delegate the task of writing dietary orders to a
qualified dietitian or other nutrition professional acting within the
scope of state law. The commenter acknowledged that it has been a real
challenge through the years of getting physicians to fulfill their
responsibilities in this aspect of care but believed that there are
alternatives to our proposal and that it is not in the interest of
resident to put a blanket authorization in regulation with its
potential for misuse to the detriment of the residents. Finally, the
commenter stated that the development of protocols to allocate
responsibility to those of other disciplines should be done on a
facility level based on knowledge of staff capabilities and close
oversight of who is allowed to write orders in consultation with a
medical practitioner.
Response: As we discussed earlier, our proposal is intended to
improve responsiveness to a resident's needs and is implemented at the
discretion of the physician. It does not allow a physician to shift all
authority to either a dietitian or a therapist, as the qualified
professional to whom the task is delegated must not only be acting
within their scope of practice under state law, they must also be under
the supervision of the physician. As one commenter noted, our proposal
provides for both oversight and accountability. Given the limited time
that many commenters have stated physicians spend in the facility, we
believe that in appropriate circumstances, this flexibility will
benefit both the physician and the resident. Furthermore, nothing in
this rule precludes a facility from implementing many of the
alternatives suggested by the commenter, such as more detailed
assessments of resident appetite and weight issues, better
communications to the attending physicians, facility use of reliable
and comprehensive references on nutrition, and facility adoption of
protocols based on reputable references and resources. We agree that
facilities should be knowledgeable of staff capabilities and would
expect an attending physician who chooses to delegate responsibility
for writing any order would also be knowledgeable about the
capabilities of the staff to whom responsibility is being delegated,
particularly since the attending physician remains accountable.
Comment: One commenter suggested we change the term ``skill sets''
to ``skills'' as the terms are synonymous.
Response: We thank the commenter for their suggestion, however, we
have retained the language as proposed as we do not believe that this
change would substantially improve the clarity or intent of the
provision.
Comment: One commenter urged us to make a more straightforward
statement in the final rule that each resident, unless medically
contraindicated, must be afforded a choice of foods at all times. One
commenter suggested we more specifically address pureed foods. Another
suggested that we change the language at Sec. 483.60(f)(3) that
currently states that ``Suitable, nourishing meals and snacks must be
available for residents who want to eat at non-traditional times or
outside of scheduled meal times, in accordance with the plan of care''
to eliminate ``in accordance with the plan of care'', as resident
requests to dine outside of mealtime should not be required to be
[[Page 68779]]
documented on the plan of care, unless nutrition is a concern and is
being monitored for specific reasons. Other commenters objected to this
requirement on the basis that it would require extended kitchen hours.
Response: We believe our proposal, as written, addresses the
concerns implicated in the commenters' statements. We agree that a
resident's request to eat outside of mealtime does not necessarily need
to be documented in the plan of care, nor should a resident be able to
eat outside of meal time only if it is required by the plan of care.
However, where nutrition is a concern and being monitored for a
specific reasons, or where there are dietary restrictions necessitated
by a resident's medical condition(s), the provision of such snacks and
meals must be consistent with the plan of care. We have modified the
regulatory language to state ``Suitable, nourishing meals and snacks
must be provided for residents who want to eat at non-traditional times
or outside of scheduled meal times, consistent with the plan of care''
to focus on residents actually receiving these snacks or meal options,
rather than focusing on the availability of such options. As discussed
in the proposed rule, this requirement is not intended to require the
availability of a 24-hour-a-day full service food operation (80 FR
42208), but rather accommodate residents who cannot or choose not to
eat at a scheduled mealtime.
Comment: Some commenters supported our proposed revisions to the
food and nutrition requirements. One commenter stated that they expect
the proposed rules will improve the quality of life and health outcomes
for residents in LTC facilities.
Response: We thank these commenters. The intent of our proposals
is, ultimately, to improve the quality of life and the health outcomes
for LTC facility residents. We understand that residents may have
varying and unique dietary and hydration needs. We also appreciate the
commenters support for our proposals that require that facilities
incorporate resident preferences in decisions about food and beverages
as well as the need to acknowledge cultural and ethnic diversity in
menus and the requirement to provide meals at times in accordance with
resident needs, preferences, requests, and the plan of care.
Comment: Some commenters objected to our requirement that menus
reflect the religious, cultural, and ethnic needs of the residents, as
well as input received from residents and resident groups. The
commenters felt that this meant that every facility would have to meet
all religious dietary requirements for multiple faiths and that this
was not achievable. One commenter suggested that we add ``to the extent
possible'' to the requirement.
Response: This requirement does not mandate that every facility be
able to provide every possible religious, cultural, or ethnic diet.
However, a facility should consider these factors with respect to the
population it serves, as well as input from residents and resident
groups, when developing its menus. We have clarified this provision to
state that menus should ``reflect, based on a facility's reasonable
efforts, the religious, cultural and ethnic needs of the resident
population, as well as input received from residents and resident
groups;'' and defer additional discussion to sub-regulatory guidance.
Comment: One commenter objected to the inclusion of the term
``industry standards'' with regard to menus. One suggested we retain
only the term ``national guidelines.'' The commenter expressed concern
that ``industry standards'' could allow for poor quality foods.
Response: We agree that including ``or industry standards'' could
allow for menus that don't meet national guidelines and therefore have
eliminated the term ``industry standards.''
Comment: One commenter suggested that in paragraph Sec.
483.60(c)(1) after ``in accordance with established national guidelines
or industry standards'' we add ``in accordance to the individual per
his or her comprehensive assessment and care plan. The commenter is
concerned that many kitchen staff mistakenly think that they must offer
the dietary guideline amounts, ignoring a resident's preferences such
as smaller portions, as bigger portions may overwhelm some individuals.
Another commenter suggested we make proposed Sec. 483.60(c)(7)
stronger by revising it to read: `` The comprehensive assessment and
care plan support resident choice and preference for larger or smaller
portions''. The commenter asked that we make clearer that residents
decide what they want to eat. They wanted to clarify that no resident
should be made to eat or to believe that they should eat a certain
amount of food, which is what happens when menus are built upon generic
``recommended dietary allowances.''
Response: We agree that an individual's preference for smaller
portions or who are overwhelmed by large portions should have that
preference or need accommodated. However, the section in question
refers to the menu that is prepared for the facility as a whole, not
how each meal is provided to the resident. We believe that the
provisions as proposed require appropriate menu development at the
facility level, but also clearly allow, and in fact require, that meals
meet individual needs and accommodate resident preferences.
Specifically, Sec. 483.60(c)(7), as finalized, states that nothing in
this paragraph should be construed to limit the resident's right to
make personal dietary choices and Sec. 483.60(d)(4) requires that each
resident receive food that accommodates resident allergies,
intolerances, and preferences. We would defer additional specificity,
such as choice of portion size, to sub-regulatory guidance.
Comment: Commenters requested that we eliminate paid feeding
assistants. One commenter is concerned that feeding assistants have
little training and are ill-equipped to help residents who may have
swallowing difficulties or resist being fed. The commenter suggests
such assistants need training and skills that CNAs have and that
assigning such tasks to CNAs would promote continuity of care and
support the CNA's relationship with the resident. Another commenter
asked that we change the title to ``dining assistant.''
Response: We did not propose to eliminate the role of paid feeding
assistants and do not have the benefit of public comment on such a
proposal. The requirements for paid feeding assistants were issued in
2003 in response to demonstration programs that evaluated supplementing
LTC facility staffing with this role in order to address a recognized
problem that most LTC facility residents needing mealtime assistance
did not receive enough feeding assistance to ensure adequate nutrition
and hydration. A follow-up study by Abt Associates, Inc. in 2007 did
not support concerns that paid feeding assistants would be poorly
trained or that they would replace existing nurse aides or used for
additional resident assistance. The study did raise a concern regarding
facilities identification of residents who were assigned a paid feeding
assistant. We proposed a requirement that the IDT identify residents
who were appropriate for this program that assessment should be
reflected in the comprehensive care plan. This would assist in ensuring
that resident selection for paid feeding assistance is appropriate. We
believe we would need to pursue notice and comment rule-making to
eliminate this role. Further, we believe we need to further investigate
the need to do so and
[[Page 68780]]
the implications of doing so. We will evaluate the concerns raised and
consider this issue for inclusion in future rule-making.
Comment: Some commenters supported the proposed requirements'
enhanced focus on resident preferences, assessment and care planning in
this section, including incorporating resident preferences, recognizing
residents' religious, ethnic, and cultural diversity, flexible meal
times, the addition of `drinks, including water and other liquids, and
the inclusion of a member of food and nutrition services on the IDT.
Another commenter strongly supported our proposed requirements in Sec.
483.60(i)(1) to allow food to be obtained from local producers or grown
on-site, subject to some safety requirements and to clarify that the
requirements do not preclude residents from consuming foods not
procured by the facility (that is, food brought in by visitors).
Response: We appreciate the commenters' support. We agree that
these efforts will improve facility responsiveness to the unique needs
and preferences of residents while ensuring residents a greater sense
of participation in their care.
Comment: One commenter suggested that instead of requiring specific
educational requirements for the director of food services or any other
position, we require that a member of the food and nutrition services
management team include a person credentialed in the manner we have
proposed. The commenter stated that there are many highly capable
professionals with many years of food service experience without
specific credentials who may nonetheless be competent within a long-
term care environment. Another commenter suggested that our
requirements for a food service manager were ``woefully inadequate''
specifically citing the fact that we included a degree in hospitality
as an option.
Response: Effective management and oversight of the food and
nutrition service is critical to the safety and well-being of all
residents of a nursing facility. Therefore, it is important that there
are standards for the individuals who will lead this service. However,
we agree that there are many highly capable professionals with many
years of food service experience without specific credentials who may
nonetheless be highly competent within a long-term care environment. It
is for this reason that we have allowed sufficient time to meet the new
requirements. With regard to our requirements for food service
managers, we have modified the option of a degree in hospitality. Based
on the comment that a degree in hospitality was a ``woefully
inadequate'' qualification, we conducted additional research, and
determined that not all hospitality degree programs specifically
require food service management. However, based on our research, food
service management/restaurant management is a common aspect of
hospitality degree programs. Therefore, rather than eliminate a
hospitality degree as an qualifying option for facilities, we have
clarified to specify that, in order to qualify based on a degree in
hospitality, the individual must have included food service management/
restaurant management in their degree program.
Comment: Some commenters supported our proposed definition of
`qualified dietitian' but recommended refinements. Other commenters
opposed our definition of `qualified dietitian,' asserting that the
proposed change would weaken professional standards and enable
unqualified practitioners without the necessary training or skills to
oversee facilities' food and nutrition services. They suggested that we
define ``qualified dietitian'' consistent with the definition of
``registered dietitian or nutrition professional'' set out at section
1861(vv)(2) of the Act.
Response: We based our proposal for the definition of a ``qualified
dietitian'' in part on our experience in allowing hospitals to grant
specific nutritional ordering privileges to qualified professionals. We
discussed our rationale in the final rule ``Medicare and Medicaid
Programs; Regulatory Provisions To Promote Program Efficiency,
Transparency, and Burden Reduction; Part II; published on May 12, 2014
(79 FR 27106).
Section 1861(v)(2) of the Act defines a ``registered dietitian or
nutrition professional'' as an individual who holds a baccalaureate or
higher degree granted by a regionally accredited college or university
in the United States (or an equivalent foreign degree) with completion
of the academic requirements of a program in nutrition or dietetics, as
accredited by an appropriate national accreditation organization
recognized by the Secretary for this purpose, who has completed at
least 900 hours of supervised dietetics practice under the supervision
of a registered dietitian or nutrition professional; and is licensed or
certified as a dietitian or nutrition professional by the state in
which the services are performed; or, in the case of an individual in a
state that does not provide for such licensure or certification, meets
such other criteria as the Secretary establishes. The definition of a
``registered dietitian or nutrition professional'' at Sec. 410.134 is
closely aligned with this statutory definition, adding only that, in a
state that does not provide for licensure or certification, the
individual will be deemed to have met this requirement if he or she is
recognized as a ``registered dietitian'' by the Commission on Dietetic
Registration or its successor organization, or meets the degree and
practice requirements specified by the statute. Section 483.94(e) of
our rules defines a qualified dietitian as ``an individual who meets
practice requirements in the State in which he or she practices and is
a registered dietitian with the Commission on Dietetic Registration.''
We note that, according to the Academy of Nutrition and Dietetics, the
credential ``registered dietitian nutritionist'' (RDN) is synonymous
with ``registered dietitian'' (RD) and the two credentials have
identical meaning and legal trademark definitions.
We have reviewed state requirements for licensure or certification
of dietitians and nutrition professionals and find those requirements,
with a few exceptions, generally include, at a minimum, similar
education and experience requirements to those forth by the statute and
currently reflected in Sec. 410.134. Many also require an examination
and/or defer to the national examination provided by the Commission on
Dietetic Registration for qualification as a Registered Dietitian. A
few states do not require or offer licensure or certification. One
state repealed such requirements in 2014. In those states, our proposed
definition would require that qualified dietitians or nutrition
professionals must be a RD in the state they are providing services.
However, we agree that there could be states whose licensure
requirements are less than the statutory requirement and we cannot
predict future changes in state licensure requirements. Therefore, in
order to better align our definition with section 1861(v)(2) of the
Act, we have removed our proposed definition and provide that a
qualified dietitian or other clinically qualified nutrition
professional is one who: Holds a bachelor's or higher degree granted by
a regionally accredited college or university in the United States (or
an equivalent foreign degree) with completion of the academic
requirements of a program in nutrition or dietetics accredited by an
appropriate national accreditation organization recognized for this
purpose; has completed at least 900 hours of supervised dietetics
practice under the
[[Page 68781]]
supervision of a registered dietitian or nutrition professional; and is
licensed or certified as a dietitian or nutrition professional by the
state in which the services are performed. In a state that does not
provide for licensure or certification, the individual will be deemed
to have met this requirement if he or she is recognized as a
``registered dietitian'' by the Commission on Dietetic Registration or
its successor organization, or has a bachelors' degree or higher and
has completed at least 900 hours of dietetics practice.
Comment: Some commenters assert that 5 years is too long to allow
for facilities to come into compliance with the proposed qualifications
for dietitians and food service managers. Some commenters suggest 2
years as an alternative.
Response: We appreciate the commenters concerns and considered
shorter timeframes. However, as another commenter noted, there are many
highly capable professionals with many years of food service experience
without specific credentials who may nonetheless be highly competent
within a long-term care environment. We do not want to penalize such
professionals and want to ensure that they have sufficient time to meet
the new requirements and remain an asset to their facility.
Comment: Some commenters objected to the alternative qualifications
for a food service manager and suggest that the food service manager
must be a certified dietary manager who has obtained a ServSafe[supreg]
certification. A number of commenters expressed concern about the
existing supply of certified dietary managers. These commenters
recommended we allow 6 to 18 months after the effective date of this
final rule for facilities to hire new food service managers and give
them time to complete the requirements to become a certified dietary
managers.
Response: We note that there are currently no regulatory
requirements for a food service manager. The ServSafe[supreg] manager
certification requires training in the importance of food safety, good
personal hygiene, time and temperature control, preventing cross-
contamination, cleaning and sanitizing, safe food preparation,
receiving and storing food, methods of thawing, cooking, cooling and
reheating food, HACCP (Hazard Analysis and Critical Control Points),
food safety regulations, and more. These are important topics. However,
while ServSafe[supreg] manager certification is one way to ensure that
food service managers are current in this knowledge, it is not the only
way to ensure this. We have chosen to allow some flexibility in this
regard. Given commenters' concerns regarding a potential workforce
shortage of certified dietary managers, we agree it is reasonable to
allow facilities 12 months from the effective date of this rule for a
food service manager hired after the effective date of this rule to
meet the updated qualifications.
Comment: We received a number of comments both supporting and
objecting to our proposal to eliminate the requirement that there be no
more than 14 hours between meals. Those who object felt that our
objective was not person-centered care, as we stated in the preamble,
but rather an intent to limit the existing regulatory requirement that
facilities ensure that appropriate food is available and provided to
residents at reasonable times. These commenters saw no reason not to
retain the current requirement and recommended doing so. Other
commenters felt that our proposal would allow facilities to tailor
their food service programs to the needs and desires of its residents
and patients and would improve the resident's environment and quality
of life.
Response: The intent of our proposal was, as some commenters noted,
to give facilities some flexibility and to focus their efforts on
meeting the residents' needs and preferences. The proposal required
that the facility provide three meals a day at ``regular times
comparable to the community or in accordance with the resident needs,
preferences, requests, and plan of care'' and that suitable and
nourishing alternative meals and snack must (emphasis added) be
available for residents who want to eat at non-traditional times or
outside of scheduled meal service times. We believe these requirements,
in combination with other requirements, including the requirements for
food and drink in paragraph (d), ensure that each resident will receive
adequate nutrition and will have in say in both what he or she eats and
when. However, the requirement that there must be no more than 14 hours
between a substantial evening meal and breakfast the following day, or
up to 16 hours when a nourishing snack is served at bedtime, and a
resident group agrees to this meal span, does not conflict with the
proposed requirement and may prevent diminished availability of meal
service. Therefore, we will not finalize our proposal to delete the
requirement that there must be no more than 14 hours between a
substantial evening meal and breakfast the following day, or up to 16
hours when a nourishing snack is served at bedtime, and a resident
group agrees to this meal span.
Comment: Some commenters objected to our requirement that
facilities establish a policy regarding use and storage of foods
brought to residents by visitors to ensure safe and sanitary handling.
These commenters felt they were not capable of policing this and that
it was inappropriate to ask them to, but at the same time felt that
foods from visitors were an enhancement to resident enjoyment.
Response: We were deliberately flexible in establishing this
requirement, to allow facilities to determine how to best balance
resident enjoyment of such treats and food safety. For example, some
facilities may have the capacity to provide refrigeration space for
residents, while others will not. We continue to believe that having a
policy which residents and visitors are aware of is an important
safeguard.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
We have modified our definition of ``qualified dietitian
or other clinically qualified nutrition professional'' at Sec.
483.60(a)(1) to more closely align with statutory requirements.
Director of Food and Nutrition Services: We have modified
Sec. 483.60(a)(2)(i)(D) to specify that the hospitality degree must
include food service or restaurant management.
Menus and Nutritional Adequacy: We have deleted the term
``industry standards'' from our proposal at Sec. 483.60(c)(1) that
menus must meet the nutritional needs of residents in accordance with
established national guidelines. We also clarified that menus must
reflect, based on a facility's reasonable efforts, the religious,
cultural and ethnic needs of the resident population, as well as input
received from residents and resident groups.
Food and Drink: At 483.60(d)(5), we have replaced the
terms ``substitutes'' and ``alternative'' with the terms ``options''
and ``different meal choice.''
We have withdrawn our proposal at (f)(2) to delete the
requirement that there must be no more than 14 hours between a
substantial evening meal and breakfast the following day, or up to 16
hours when a nourishing snack is served at bedtime, and a resident
group agrees to this meal span.
S. Specialized Rehabilitative Services (Sec. 483.65)
Current regulations at Sec. 483.45 set forth the services that a
facility must provide if a resident needs specialized rehabilitative
services including, but not
[[Page 68782]]
limited to, physical therapy, speech-language pathology, occupational
therapy, and mental health rehabilitative services for a mental
disorder. Following the reorganization of part 483 subpart B, we
proposed to relocate these existing provisions to Sec. 483.65 with
minor revisions. We proposed at re-designated Sec. 483.65(a) to
specifically add respiratory therapy to the list of specialized
rehabilitative services. The addition of this service explicitly
requires facilities to provide or obtain these services when necessary
and meet the needs of residents facing respiratory issues. However,
this addition did not change coverage policy regarding respiratory
therapy. At Sec. 483.65(a)(2), we proposed to clarify that when it is
necessary for facilities to obtain these services from an outside
source, the provider would have to be a certified Medicare and/or
Medicaid provider.
Secondly, we proposed to clarify the meaning of specialized
rehabilitative services in relation to PASARR. We proposed to add in
Sec. 483.65 a cross reference to the PASARR regulations at Sec.
483.120(c) which set out the mental health or intellectual disability
services a nursing facility must provide to all residents who need
these services. In addition, we proposed to correct a typographical
error deleting the redundant ``mental health'' before ``rehabilitative
services for a mental disorder and intellectual disability''.
Comment: Many commenters supported the inclusion of respiratory
therapy in the list of specialized rehabilitative services. One
commenter suggested that recreational therapy also be added since
recreational therapy is recorded in the MDS 3.0 for LTC facilities
under Section O.
Response: We appreciate the feedback and support from commenters.
We have chosen not to add recreational therapy to the list of
specialized rehabilitative services at Sec. 483.65 because at this
time we do not believe that we have the evidence as to the efficacy of
such therapy to support the addition.
Comment: One commenter indicated that it is unclear whether the
proposed rule requires that respiratory therapy services be provided by
a respiratory therapist. The commenter notes that it would be nearly
impossible to find enough respiratory therapists to provide the
services and noted further that a nurse with appropriate training could
provide necessary respiratory services in most instances. Commenters
requested that a regulatory definition of ``respiratory therapy'' and a
clear discussion of the scope of respiratory therapy services that must
be provided be included in the final rule. In addition, commenters
noted that the final rule should include a discussion of the
qualifications necessary for individuals to furnish these services to
help providers better understand how to meet these requirements.
Response: All specialized rehabilitative services are considered
facility services and are included within the scope of facility
services. Therefore, the facility must provide the necessary
respiratory therapy services for all residents who need them, so that
the needs of the resident are met and support the resident in attaining
or maintaining their highest practicable physical, mental, and
psychosocial well-being. In addition, the regulation requires that
these services be provided in accordance with the resident's
comprehensive assessment and plan of care. Regulations at Sec.
483.70(f) discuss staff qualifications and specify that the facility
must employ on a full-time, part-time or consultant basis those
professionals necessary to carry out the provisions of the requirements
for LTC facilities. This would include those services related to
specialized rehabilitative services, including respiratory therapy. In
addition, the regulations at Sec. 483.70(f) require that professional
staff must be licensed, certified, or registered in accordance with
applicable state laws.
Comment: One commenter indicated concern regarding the difficulty
smaller and more rural facilities may face when providing very complex
respiratory therapy services such as mechanical ventilation. The
commenter noted that it would be reasonable to permit facilities some
flexibility in how the needs of these residents are met and requested
that we include provisions describing what complex respiratory services
could be excluded from those services the facility must provide. The
commenter noted that rehabilitation agencies provide services that may
be furnished in a home environment that is similar to a SNF, such as an
assisted living facility or independent senior living residence and
recommended that the regulations be revised to allow the appropriate
flexibility for SNFs that is consistent with that permitted in other
Medicare outpatient therapy provider settings.
Response: We appreciate the commenter's feedback and understand
that there are challenges that smaller and rural facilities may face
when trying to obtain access to care and services for their residents.
However, facilities must be able to provide, directly or under
arrangement, the necessary care that their residents require. We urge
facilities to use the facility assessment that was proposed at Sec.
483.70(e) as a tool for appropriately assessing the resources necessary
for providing care to its residents. Facilities should use this
assessment to make decisions about their direct care staff needs as
well as their capabilities to provide services to the residents in
their facility.
Comment: One commenter disagreed with our proposal to clarify that
when it was necessary to obtain specialized rehabilitative services
from an outside source, the provider would have to be a certified
Medicare and/or Medicaid provider. The commenter noted that this
revision limits access to providers and recommends that facilities
continue to be permitted to obtain necessary services from a qualified
therapy professional that is appropriately licensed or certified to
practice in the state in which services are being furnished. The
commenter recommended that services obtained from an outside resource
should only be restricted to a provider who was not excluded from
federally funded health care programs including Medicare and/or
Medicaid.
Response: We appreciate the commenter's feedback and have given
much consideration to the implications that this revision may have on
access to providers of specialized rehabilitative services. Our goal is
to ensure that all LTC residents receive services from qualified
professionals. Therefore, in an effort to balance the need to assure
the safety of LTC residents against the concerns of facilities
regarding obtaining access to providers, we have withdrawn our proposal
at Sec. 483.65(a)(2) to require that an outside resource must be a
Medicare or Medicaid provider. Instead we are revising the requirement
to indicate that services obtained from an outside resource must come
from a provider that is not excluded from any federally funded health
care program. We believe that this revision supports our intent to
assure that LTC facility residents receive services from outside
resources that are both professional and safe, while maintaining the
access to providers.
Comment: Some commenters indicated that the use of the term
``specialized rehabilitative services'' should be revised to
``rehabilitative services and devices'' to be consistent with a CMS
regulation entitled, ``Patient Protection and Affordable Care Act; CMS
Notice of Benefit and Payment Parameters for 2016'' (80 FR 75487).
Commenters noted further that the final rule should adopt a definition
of ``rehabilitative services'' that includes explicit recognition and
coverage of devices. Commenters noted that the
[[Page 68783]]
definition of ``rehabilitative devices'' should also include durable
medical equipment, prosthetics, orthotics, and supplies (DMEPOS). In
addition, commenters recommended that rehabilitative devices should be
covered whether or not they are considered part of the SNF per diem
rate or separately billable to the Medicare program.
Response: We disagree with commenters and believe that the term
``specialized rehabilitative services'' is appropriately used in the
LTC setting. Sections 1819(b)(4)(A) and 1919(b)(4)(A) of the Act
specifically use the term ``specialized rehabilitative services'' when
discussing the provision of services that a facility must provide,
directly or under arrangement, to the extent needed by residents to
fulfill all plans of care. The CMS regulation discussed by commenters
(``Patient Protection and Affordable Care Act; CMS Notice of Benefit
and Payment Parameters for 2016'' (80 FR 75487)) applies to private
insurance under the Affordable Care Act and does not have an impact on
long-term care facilities that participate in the Medicare and Medicaid
program. In addition, the coverage of rehabilitative devices under the
Medicare program falls outside the scope of this regulation.
Comment: A few commenters also recommended that the regulation be
revised to ensure compliance with the decision in Jimmo v. Sebelius,
which indicated that Medicare coverage for skilled services should not
be denied based on the absence of potential for improvement or
restoration. Commenters indicated that residents should not have to
show improvement for rehabilitative services to be determined as
reasonable and necessary.
Response: We thank the commenters for highlighting the importance
of the decision in Jimmo v. Sebelius. However, the Jimmo v. Sebelius
settlement agreement did not modify or expand the existing eligibility
requirements for receiving Medicare coverage and does not fall into the
scope of this regulation. We note that CMS committed to conducting a
number of activities in response to the settlement agreement to ensure
that the existing Medicare policy is clear and that Medicare claims are
adjudicated consistently and appropriately. Specifically, CMS planned
to engage in the review of claims determinations, update program
manuals, and educate contractors, adjudicators, and providers and
suppliers on the policy clarifications. Readers may refer to the CMS
Web site at https://www.cms.gov/medicare/medicare-fee-for-service-payment/SNFPPS/downloads/jimmo-factsheet.pdf for a fact sheet regarding
the Jimmo v. Sebelius settlement agreement.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
At Sec. 483.65(a)(2), we are removing the requirement for
outside resources to be Medicare and/or Medicaid providers of
specialized rehabilitative services. We have clarified that the outside
resource must be a provider of specialized rehabilitative services that
is not excluded from participating in any federal or state health care
programs pursuant to sections 1128 and 1156 of the Act.
T. Outpatient Rehabilitative Services (Sec. 483.67)
We proposed to add a new Sec. 483.67 ``Outpatient Rehabilitative
Services'' to address facilities that choose to provide outpatient
rehabilitative therapy services to individuals that do not reside in
the facility. Currently, the provision of outpatient rehabilitative
services for non-residents is not addressed by the requirements for LTC
care facilities. We noted that Sec. 483.65 ``Specialized
Rehabilitative Services'' sets forth the requirements that a facility
must meet when providing rehabilitative therapy services to residents
who reside in their facility.
We proposed to require facilities that provide outpatient
rehabilitative therapy services to meet requirements similar to those
already established for hospitals. Specifically, we proposed to require
in new Sec. 483.67 that if the facility provides outpatient
rehabilitation, physical therapy, occupational therapy, audiology, or
speech-language pathology services, the services must meet the needs of
the patients in accordance with acceptable standards of practice and
the facility must meet certain requirements. At Sec. 483.67(a), we
proposed that the organization of the service must be appropriate to
the scope of the services offered. At Sec. 483.67(b), we proposed to
require that the facility assign one or more individuals to be
responsible for outpatient rehabilitative services and that the
individual responsible for the outpatient rehabilitative services must
have the necessary knowledge, experience, and capabilities to properly
supervise and administer the services. We also proposed to require that
the facility must have appropriate professional and nonprofessional
personnel available at each location where outpatient services are
offered. In addition, we proposed to require that physical therapy,
occupational therapy, speech-language pathology or audiology services,
if provided, must be provided by qualified physical therapists,
physical therapist assistants, occupational therapists, occupational
therapy assistants, speech-language pathologists, or audiologists as
defined in part 484 of this chapter. At Sec. 483.68(c), we proposed to
require that services must only be provided under the orders of a
qualified and licensed practitioner who is responsible for the care of
the patient, acting within his or her scope of practice under state law
and that all rehabilitation services orders and progress notes must be
documented in the patient's clinical record in accordance with the
requirements at Sec. 483.70(i). Finally, we proposed to require that
the provision of care and the personnel qualifications must be in
accordance with national acceptable standards of practice.
Comment: The majority of commenters indicated support for the
addition of the requirements regarding facilities that provide
outpatient rehabilitative services. Commenters noted that there has
been inconsistent interpretation regarding how SNFs can furnish
outpatient therapy services to non-residents and that steps towards
standardization are needed. While a few of the commenters indicated
that the new section provides adequate guidance for those facilities
offering these services, other commenters raised concerns that the
proposed requirements need further clarification and revision.
Specifically, one commenter raised the issue of SNFs that provide
outpatient rehabilitative services to non-residents at a location
outside of the facility. The commenter requested that the regulations
address SNFs that may furnish outpatient rehabilitative services in
locations other than the facility and allow flexibility in how these
services are provided. The commenter urged CMS to revise the
regulations so that they are consistent with requirements imposed for
other Medicare outpatient therapy providers. The commenter indicated
that the outpatient therapy services furnished by SNFs resemble the
delivery of services furnished through outpatient rehabilitation
providers described under 42 CFR part 485 subpart H (referred to in the
comment as rehabilitation agencies) and not those services furnished
through outpatient hospital departments. The commenter noted that
unlike a hospital, rehabilitation agencies may also provide outpatient
therapy services to individuals in a home environment, such as to
residents of independent senior living and assisted living
[[Page 68784]]
residents. In addition, the commenter noted a CMS memo from April 3,
2015 entitled ``Clarification of Requirements for Off-Premises
Activities and Approval of Extension Locations for Providers of
Outpatient Physical Therapy and Speech-Language Pathology Services and
Off-Premises Activities'' (https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-15-33.pdf). The commenter requested that the
provisions addressed in this memo regarding off-premise treatment
activities be added as requirements for SNFs.
A few commenters also recommended that the requirements be revised
to ensure compliance with the decision in Jimmo v. Sebelius, which
indicated that Medicare coverage for skilled services should not be
denied based on the absence of potential for improvement or
restoration. Commenters indicated that residents should not have to
show improvement for rehabilitative services to be determined as
reasonable and necessary. Also, a commenter raised concerns regarding
inconsistences between the proposed requirements and Medicare Part B
outpatient therapy payment policy. Lastly, commenters requested that
the regulatory section be updated to replace the term ``patient'' with
``resident''.
Response: We appreciate the in depth feedback from commenters.
Through our proposal, we intended to establish requirements for
outpatient rehabilitative services provided to non-residents in the LTC
facility to ensure that these services meet health and safety
standards. We were informed that a number of facilities provide
rehabilitative services on an outpatient basis and that these services
may be paid for under Medicare Part B. We want to ensure that our
requirements are fully and clearly developed in an effort to provide
clarity to facilities and safety to those individuals that are
receiving services. After carefully considering all of the comments we
received, reviewing the comprehensive regulations for outpatient
therapy providers found in part 485, and the CMS guidance regarding
off-premise treatment activities recommended by commenters (https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-15-33.pdf);
we believe that the practice of some LTC facilities providing
outpatient rehabilitative services presents several additional complex
issues that were not carefully and thoroughly considered during the
development of the proposed regulations. Therefore, we have decided
against finalizing the proposed requirements for outpatient
rehabilitative services. We believe that it is necessary to study the
issue further and consider proposals for future rulemaking.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modification:
We have withdrawn this proposed section in its entirety.
U. Administration (Sec. 483.70)
Relocation of Existing Requirements
We proposed to re-designate current Sec. 483.75 ``Administration''
as Sec. 483.70. At Sec. 483.75(c), we proposed to replace the term
``handicap'' with the term ``disability''and to add a reference to the
HIPAA Privacy, Security, and Breach Notification Rules, 45 CFR parts
160 and 164. In addition, we proposed to clarify that violations of
other HHS regulations, as determined by the agency or entity with
enforcement authority for those regulations, may result in a finding by
CMS of non-compliance with the requirements of Sec. 483.70(c).
We proposed to re-designate and revise existing Sec. 483.75(e) and
(f), provisions regarding nurse aides, to Sec. 483.35 ``Nursing
Services'' or Sec. 483.95 ``Training'', as discussed under these
sections.
We proposed to create new section Sec. 483.50 ``Laboratory,
radiology, and other diagnostic services'' and relocate and revise
existing paragraphs, Sec. 483.75(j) ``laboratory services'' and Sec.
483.75(k) ``radiology and other diagnostic services'', to the new
section. In addition, we proposed to retain the provisions in existing
Sec. 483.75(g), (h) and (i) unchanged and re-designate them as
proposed Sec. 483.70 (f), (g), and (h).
We did not receive any comments in response to these proposals and
are finalizing as proposed except that we have added a reference to 45
CFR part 92 in the list of regulations that facilities are required to
comply with, based on a comment received with regards to Sec. 483.12.
Governing Body Sec. 483.70(d)
At Sec. 483.70(d)(2)(i) we proposed to delete the phrase ``where
licensing is required'' since all states participating in the Medicaid
program are required to license nursing home administrators under
section 1908 of the Act. We proposed to add a new Sec.
483.70(d)(2)(iii) to specify that the LTC facility administrator would
report to and be accountable to the governing body. We also proposed to
add a new Sec. 483.70(d)(3) to specify that the governing body is
responsible and accountable for the QAPI program, in accordance with
proposed Sec. 483.75(f).
Comment: One commenter pointed out that deleting the phrase ``where
licensing is required'' could result in confusion in states where state
law allows administrators of hospitals which have a distinct part SNF
not to be certified as LTC facility administrators.
Response: We agree and withdraw this proposal.
Comment: Some commenters supported the proposed changes to Sec.
483.70(d)(2)(iii), which would require that the LTC facility
administrator report to and be accountable to the governing body.
Response: We thank the commenters. We believe this change will
ultimately benefit LTC facility residents.
Comment: One commenter was concerned about the proposed requirement
at Sec. 483.70(d)(2)(iii) for the LTC facility administrator to report
to and be accountable to the governing body. The commenter stated that,
while they understand and appreciate the need for the governing body to
be kept apprised of the operations and management of the facility, they
do not support a regulatory requirement prescribing that the facility
administrator report to and be directly accountable to the governing
body. The commenter stated that many not-for-profit organizations have
management structures that include a Chief Executive Officer (CEO) who
is not the administrator of record of the LTC facility. Under the
bylaws and governance structure of these organizations, the CEO is
directly accountable to the board of directors and responsible for
hiring and supervising the facility administrator and other executive
staff. Requiring the administrator to report to and be directly
accountable to the governing body in these circumstances would supplant
the governance policies of these organizations and undermine the
relationship of the CEO to the board of directors. The commenter
recommended that this requirement be eliminated in its entirety.
Alternatively, the commenter suggested the requirement could be
modified to require that the organization's senior management keep the
governing body apprised of the operations and management of the
facility, while leaving it up to the organization to designate the
individual
[[Page 68785]]
who would be responsible for this function.
Response: As the commenter noted, we believe that it is important
for the governing body to be kept apprised of the operations and
management of the facility. Under current regulation, the governing
body is already responsible for appointing the administrator who is
responsible for the operations and management of the facility. The
proposed provision would add that the administrator reports to and is
accountable to the governing body. The new provision does not specify
``directly'' and thus we believe that a governing body may appoint a
designee, such as a CEO, to directly interface with an Administrator.
However, the use of a designee does not change the Administrator's
accountability to the governing body nor the governing body's
responsibility to know and respond to concerns with the operation and
management of the facility.
Comment: One commenter stated that they appreciate that CMS would
make the administrator report to and accountable to the governing body.
They note that while this may be implied, the proposed specificity
clarifies this point. Given the governing body's responsibility for
implementing the management and operations of the facility, the
commenter agrees with CMS that the administrator must keep the
governing body informed and knowledgeable about these issues. The
commenter also supports the governing body also being responsible and
accountable for the facility's QAPI. This program cannot be successful
unless the facility leadership is involved.
Response: We agree. As noted above, we believe it is important that
the governing body be kept apprised of the operations and management of
the facility. Furthermore, should the governing body appoint an
intermediary such as a CEO, the use of such an intermediary does not
change the Administrator's accountability to the governing body nor the
governing body's responsibility to know and respond to concerns with
the operation and management of the facility.
Facility Assessment (Sec. 483.70(e))
We proposed a new Sec. 483.70(e) to establish a new requirement
for an annual facility assessment. We proposed to require that the
facility assessment address or include:
The facility's resident population, including the number
of residents, the facility's resident capacity, the care required by
the resident population considering the types of diseases, conditions,
physical and cognitive disabilities, and overall acuity that are
present within that population.
The staff competencies that are necessary to provide the
level and types of care needed for the resident population.
The physical environment, equipment, and services that are
necessary to care for this population.
Any ethnic, cultural, or religious factors that may
potentially affect the care provided by the facility, including, but
not limited to, activities and food and nutrition services.
The facility's resources, including but not limited to
buildings and other physical structures and vehicles; medical and non-
medical equipment.
The services provided, such as physical therapy, pharmacy,
and specific rehabilitation therapies.
Personnel, including managers, employed and contracted
staff, and volunteers, as well as their education and/or training and
any competencies related to resident care.
Contracts, memorandums of understanding, or other
agreements with third parties to provide services or equipment to the
facility both during normal operations and emergencies.
Health information technology resources, such as systems
for electronically managing patient medical records and electronically
sharing information with other organizations.
General Comments
Comment: Some commenters did not believe that the proposed
requirement for a facility assessment would be a significant change
from what is currently required. Commenters pointed to language in the
proposed rule, where we first said, that the requirement for a facility
assessment was ``a central feature'' of our revisions and that ``[t]his
is similar to existing common business practices for strategic planning
and capital budget planning'' (80 FR 42210). Commenters said that
authorizing a practice that is already common does not appear to be a
significant change. The current requirements already require resident-
centered and specific care plans designed to attain and maintain the
resident's highest practicable physical, mental, and psychosocial well-
being. LTC facilities already use multiple sources of data, including
the items listed in the proposed rule, in various ways to make
operational decisions, including the number of staff and skills that
staff need to provide care to the residents. Some commenters also noted
that the current requirement to determine staffing levels was already
producing serious staffing and quality deficiencies and did not see
where the proposed changes would make any appreciable difference. They
also said the reason for this assessment was completely unclear.
Response: Based on our experience with LTC facilities, we believe
that there is already some assessment of the resident population and
the resources that would be required to care for that population.
However, we do not believe that all facilities perform as thorough an
assessment of their resident population or the facility's resources as
is required by Sec. 483.70(e). In addition, we do not believe that
most facilities have a formal process that is documented. We believe
that the requirement for a facility assessment that must address the
factors identified in Sec. 483.70(e)(1) through (3) will enable each
LTC facility to thoroughly assess their resident population and the
resources that are needed to provide the care they need. It will also
enable the facility to determine the resources it has so that it can
determine what resources it needs to competently care for its resident
population. By having the facility assessment documented, it will also
provide a record for staff and management in the future to understand
the reasoning for decisions that were made on staffing and other
resources. It will also provide a reference point for assessment when
deficiencies are noted or when adverse events occur.
Comment: Some commenters were very supportive of the requirement
for a facility assessment, but wanted us to also require that self-
assessment plans include individual crisis plans for residents who may
develop dementia-related or other behavioral crisis.
Response: We understand the commenters concern for residents who
have or may develop dementia-related or other behavioral crisis. As
proposed and now finalized in this rule, Sec. 483.70(e) requires that
facilities must, among other things, conduct and document a facility-
wide assessment to determine what resources are necessary to care for
its residents competently during both day-to-day operations and
emergencies and this assessment must address or include the care
required by the resident population considering the types of diseases,
conditions, physical and cognitive disabilities, overall acuity; and
other pertinent facts that are present within that population. Hence,
LTC facilities must already consider the care that is needed for those
residents who already have dementia-related or other behavioral crises
or could develop these during an emergency. We have not required a
specific methodology for LTC facilities to perform their facility
assessments because we believe that
[[Page 68786]]
facilities need the flexibility to decide how they will conduct their
assessments. Thus, we will not require that individual crisis plans be
included; however, each facility must address the needs of all
residents, including those who have or may develop dementia-related or
other behavioral crises both during day-to-day operations and
emergencies.
Facility Assessment Methodology
Comment: Some commenters were supportive of LTC facilities
conducting their own facility assessment and taking into consideration
the factors set out in the proposed rule at Sec. 483.70(e). However,
they were concerned about the facility being able to rely on its own
assessment without there being any enforcement mechanisms or safeguards
to ensure that the facility was objectively assessing its residents'
needs, acuity, and other important factors and not relying unduly on
other factors, such as costs or convenience. Some commenters were
concerned that LTC facilities would simply produce assessments that
indicated that their current staffing and other resources were
sufficient to care for their resident population. Commenters
recommended that facility assessments be validated in some manner.
Response: We understand the commenters' concerns; however, we
believe that in complying with the requirements finalized in this rule
as set forth in Sec. 483.70(e), LTC facilities will have to conduct
and document a thorough assessment and analysis of their resident
population, staff and staff competencies, and resources to determine
not only the resources they currently have but also the resources they
need to obtain in order to care for their resident population
competently. We will also be developing sub-regulatory guidance that
will provide more information on how to comply with this requirement.
If any LTC facility simply writes up a facility assessment to justify
the resources it currently has, we believe that will be evident in the
facility assessment, as well as in their performance on surveys.
Comment: Some commenters were concerned about having the facility
assessment developed by the LTC facility without requiring input from
other sources. They recommended that the facility be required to seek
and use input from the state's Office of the Long-Term Ombudsman, the
resident and family groups, and family caretakers when conducting its
assessment. However, other commenters believed that the facility
assessment should be considered proprietary and that the facilities
should not be required to either include input from sources outside the
facility or share the assessment with them.
Response: While we encourage LTC facilities to seek out and
consider input from multiple sources, including residents, residents'
representatives, families, and advocates, including the state Office of
the Long Term Care Ombudsman, we disagree with the commenters that this
should be required. As stated in the proposed rule, we encourage LTC
facilities to seek input from multiple sources; however, ``[w]e believe
the facility should have the flexibility to determine when and from
whom a facility would seek input and how to incorporate that
information into their assessment'' (80 FR 42210 through 42211). We
believe that each facility needs the flexibility to decide the best way
to comply with this requirement. This is also the reason we have not
required any specific methodology for facilities to use for the
facility assessment.
Comment: Some commenters believed that the level of detail in
facility assessment requirement was unreasonable, complex, and would be
extremely burdensome for the LTC facilities. However, other commenters
were concerned about the lack of specificity for the facility
assessment requirement. They said it was unclear what these assessments
would look like or which staff members should be involved. Some
commenters noted that there was insufficient information in the
preamble and the regulatory text to evaluate the requirement for a
facility assessment. Commenters were particularly concerned that this
inevitable lack of consistency in methodology would result in the
results not being comparable. Thus, the facility assessments would not
provide any valid comparisons or provide any precedent over time
sufficient to be beneficial for LTC facilities, advocates, regulators,
surveyors, or researchers. Commenters also questioned whether these
assessments could fail to comport with the OBRA '87 requirement that
every facility have adequate staff in place to ensure that residents
can achieve their maximum well-being.
Response: We understand that the commenters have concerns and
questions about what would be needed to comply with the requirement for
a facility assessment. In proposed Sec. 483.70(e), we only included
the elements that we believe are essential for a facility to assess and
analyze its resident population and resources so that it can
competently determine the resources it needs to care for its resident
population. As we said in the proposed rule, ``[t]his facility-wide
assessment would determine what resources a facility would need to care
for its residents competently during both day-to-day operations and
emergencies'' (80 FR 42210). Thus, we believe that the basic elements
for the assessment are included and do not believe that the
requirements are unreasonable, complex, and would be extremely
burdensome. As we indicated earlier, we believe that facilities are
already performing some type of assessment, although it may not be as
formal or documented. In addition, after this final rule is effective,
additional sub-regulatory guidance will be published or disseminated to
provide further detail on how to comply with these requirements.
We acknowledge that there will likely be some variation in how LTC
facilities will conduct and document their facility assessments.
However, due to the significant variations in the types of LTC
facilities, resident populations, and resources among the LTC facility
facilities, we believe that the facilities need the flexibility to
determine the best way for each facility to comply with this
requirement. As to consistency among the facility assessments, we
believe that the accuracy of the assessments is more important.
However, over time we believe that some consistency will likely develop
due to facilities sharing what has worked best for them with other
facilities and their associations. In addition, if a facility complies
with the requirements for the facility assessment finalized in this
rule, we believe that facilities will be able to determine what
constitutes sufficient staff for their facility, which would be in
compliance with the requirement in OBRA '87 for sufficient staffing.
Annual and Other Updates
Comment: Some commenters were concerned that facilities may
potentially need to update their assessments frequently, such as every
time their resident-mix changes, they hire new staff or a DoN, conduct
any remodeling, etc. This continuous, or at least frequent, need to
update the facility assessment could distract LTC facilities from
improving resident care.
Response: We do not believe that the facility assessment will need
to be updated as frequently as the commenters suggest. We understand
that the resident-mix may change frequently. However, the care that
needs to be provided for the resident populations should not change
that frequently. Once the facility completes its assessment, changes in
its resident
[[Page 68787]]
population should not necessitate a change in the facility assessment
unless the facility begins admitting residents that require
substantially different care. For example, when a facility does its
initial assessment, it might not have any morbidly obese residents who
require special bariatric equipment, such as a bariatric wheelchair and
walker. However, in the future, if the facility wants to admit morbidly
obese residents who require that equipment, it would need to identify
the care needs for morbidly obese residents, update the facility
assessment, ensure that its staff have the relevant competencies, and
obtain the other required resources. As long as the facility assessment
encompasses the care and resources needed by the residents, admitting
new residents with the same needs should not require an update of the
facility assessment. Likewise, hiring new staff or a DoN or even
remodeling should not require an update of the facility assessment,
unless these are actions that the facility assessment indicated the
facility needed to do. In that case, it should only require notation
that the facility has taken the actions to satisfy a need the facility
assessment identified.
Comment: Some commenters questioned the requirement to perform the
facility assessment annually. They said that appropriate staffing
levels and the competencies that are required to care for their
resident population change much more frequently than annually.
Commenters said that the annual assessment must be able to establish
that its staffing will remain adequate throughout the year, both with
regard to levels of total nurse staffing, and with respect to the
responsibility that certain types of staff, for example, registered
nurses, licensed practical nurse, have in overseeing the medical
management of residents with regard to medications, falls prevention,
development of pressure ulcers, readmission to hospitals, and other key
areas.
Response: We believe that an annual assessment is needed to ensure
that there have not been any substantial changes that will require the
facility to update its facility assessment. The annual assessment is a
minimum requirement. LTC facilities should update their facility
assessment whenever they believe it is appropriate.
Number of Assessments
Comment: Some commenters stated that a single facility assessment
was insufficient. Some commenters said that the facility assessment
requirement, as a single process, did not appear to serve long-range
planning needs and, simultaneously, the changing day-to-day needs of a
facility for staffing and other services, such as food and nutrition,
rehabilitation, and housekeeping. Some commenters argued for two
different assessments. One facility assessment would be limited to the
day-to-day needs for the facility and another that would address
emergency planning, strategic planning, and capital budget planning.
Other commenters offered specific language for this type of
requirement, with separate subsections: One for an annual strategic
planning and capital budget assessment and another for a bi-weekly
staffing and day-to-day operations assessment. For the bi-weekly staff
and day-to-day operation assessment, commenters also recommended the
individuals they believed should be involved in that assessment and
that this assessment must also address emergencies.
Response: The requirement for a facility assessment as finalized in
this rule and set forth in Sec. 483.70(e) is a minimum requirement. If
facilities choose to conduct another assessment or expand the facility
assessment to include long-range planning needs or any other needs, it
is free to do so as long as it complies with the minimum requirements
in this final rule. We have not required the involvement of specific
LTC facility personnel because we believe that the facility should have
the flexibility to determine the appropriate individuals who should be
involved in the facility assessment.
Use of Facility Assessment
Comment: Some commenters stated that each LTC facility is a unique
organization with its own values, goals, experiences, and other factors
that drive how it operates. The commenters were concerned that the
requirement for the facility assessment could result in organizational
decisions and approaches being specifically directed or managed by CMS,
which is contrary to the spirit of QAPI whereby the organizations
operations should be shaped by the staff, residents, governing body,
and other parties. However, other commenters wanted the facility
assessment audited by a facility surveyor and that the surveyor be
empowered to require, under threat of graduated monetary penalties,
that the facility provide additional nursing resources if the surveyor
disagrees with the facility's assessment.
Response: The requirement for the facility assessment is intended
to ensure that LTC facilities have appropriately assessed their
resident population and determined the resources, including staff and
their competencies, to competently care for their residents. The
facility assessment will be performed and documented by the facility
and not by CMS or any other entity. LTC facilities must comply with the
long term care requirements; however, we have endeavored to allow for
as much flexibility as possible for facilities to decide the best way
for their facility to comply with these requirements. We also believe
that the facility assessment could be very useful tool for QAPI,
especially when assessing the facility's performance on the elements
they are required to include in the assessment.
Implementation
Comment: Some commenters said that there was no discussion on
implementation of the findings in the facility assessment. They
recommended including language that requires the facility to implement
the competent staffing and resources determined necessary to care for
the residents based on the results of the facility assessment.
Response: There are many sections in this final rule, as in the
proposed rule, that requires that the facility assessment be used to
determine the resources the facility needs to devote to certain
activities. For example, Sec. 483.35 requires that the facility have
the appropriate staff with the appropriate competencies and skill sets
for the resident population in accordance with the facility assessment.
Section Sec. 483.40(a) requires that the facility have sufficient
direct care staff with the appropriate competencies and skills sets in
behavioral health for the residents in accordance with the facility
assessment. Facilities must also establish and maintain their infection
prevention and control programs based upon the facility assessment as
set forth in Sec. 483.80(a)(1). In addition, we encourage facilities
to use their facility assessment in any other activities that affect
their resident population. We believe these requirements are sufficient
to require facilities to use their facility assessments so we will not
include the recommended specific language.
Alternatives
Comment: Some commenters recommended that the proposal for the
facility assessment not be finalized and that CMS form a stakeholder
workgroup that could explore the potential use of ``facility
assessments'' and unintended consequences or outcomes, as well as
possible alternate approaches. Commenters wanted CMS to provide
clarification on what it envisions for a facility assessment; provide
evidence for the value of proposing a requirement for this facility
assessment; and provide
[[Page 68788]]
evidence-based models of facility assessment and process. Other
commenters questioned what evidence we had that supported the validity
of this requirement.
Response: As discussed above, we believe that LTC facilities
already perform some type of assessment to determine staffing and other
resources they will need to care for their resident population. For
example, previous Sec. 483.30 ``Nursing services,'' required
facilities to provide ``sufficient nursing staff to provide nursing and
related services to attain or maintain the highest practicable
physical, mental, and psychosocial well-being of each resident, as
determined by resident assessments and individual plans of care.''
Also, previous Sec. 483.15 ``Quality of life,'' required facilities to
``care for its residents in a manner and in an environment that
promotes maintenance or enhancement of each resident's quality of
life.'' The Veterans Administration is also using facility assessments
in its strategy to improve its health care delivery system (``Restoring
Trust in VA Health Care,'' 271 New Eng. J. Med. 295 (2014), accessed on
Westlaw (2014 WLNR 20261329) on July 26, 2016). We believe that these
requirements are necessary to ensure that the facility competently
cares for its resident population by appropriately assessing its
resident population and resources. The requirement includes specific
elements that each facility must address that relate to its resident
population, staff, and the resources the facility needs to care for its
residents. It provides for not only a process but also provides a
valuable tool for facilities to use for planning for and improving
care. We do not believe that a stakeholder group is necessary prior to
implementing the requirement for a facility assessment; however, we are
always willing to review any information or comments that any member of
the public wishes to send to us and will consider that information if
there is any relevant future rulemaking.
Comment: Some commenters did not want the requirement for a
facility assessment finalized because they believed that the outcomes
for residents under the existing requirements should stand as evidence
of the adequacy of the facility's assessment. These commenters
questioned the need to require LTC facilities to spend precious time
documenting a facility-wide assessment that surveyors will use to
interpret whether the facility has sufficient staff. The more
appropriate way to assess allocation of resources is to assess whether
or how the facility has met the individual needs of each resident
rather than require another documentation endeavor.
Response: The requirement for a facility assessment addresses
different issues that the requirements for person-centered care for
residents. In the facility assessment, LTC facilities should be
proactive in assessing and analyzing the needs for the entire resident
population. Individual care plans would certainly be a valuable
resource in performing the facility assessment; however, the care plan
would address the specific needs for a single resident. The facility
assessment must address the care needed for all of the residents, as
well as the resources needed to provide that care competently.
Comment: Commenters urged that CMS examine whether the current
methodology for the five-star system, which calculates expected
staffing based on RUG values along with reported staffing levels, could
be adapted for establishing rules or guidelines providing presumptive
levels for facility assessments. An adaptation of this system must also
be designed to incorporate the more robust payroll-based staffing data
that will be in place as a requirement for all certified SNFs and NFs
by July 2016.
Response: As discussed above, we will consider the commenters
recommendation to examine whether the current methodology for the five-
star rating system, which calculates expected staffing based on RUG
values along with reported staffing levels, can be adapted for
establishing rules or guidelines providing presumptive levels for
facility assessments. In addition, we will also be reviewing the
payroll-based staffing data that we will be receiving starting this
year. However, proposals to use either of the above suggested methods
would have to be developed. We will consider these recommendations if
there is future rulemaking concerning the facility assessment or
staffing.
Surveys/Surveyors
Comment: Other commenters were concerned about how the facility's
management might use the facility assessment or how surveyors would use
the facility assessment in assessing a facility's compliance with
various requirements. The general requirement for a facility assessment
invites a tremendous amount of subjectivity into the survey process
when surveyors already have requirements and other sub-regulatory
guidance to determine whether there is non-compliance during a survey.
Response: We understand the commenters' concern about how the
facility assessment will be used by the facility and the surveyors.
Facilities are required to use the facility assessment in determining
how they need to comply with several requirements in this rule.
However, facilities may also choose to use their assessments for other
purposes. Concerning the surveyors, further guidance will be published
or disseminated by CMS after this rule is published to provide
additional information on what constitutes compliance with the
requirements set forth in this final rule.
Medical Records (Sec. 483.70(i))
We proposed to re-designate existing Sec. 483.75(l) as Sec.
483.70(i) and to amend it to better conform to the requirements of the
HIPAA Privacy, Security, and Breach Notification rules at 45 CFR parts
160 and 164. We also proposed minor revisions in it to clarify that the
medical record must contain the resident's comprehensive plan of care
and physician's and other licensed professional's progress notes. We
noted in the proposed rule that existing paragraph (m) will be removed
and revised pursuant to a separate proposed rule, ``Medicare and
Medicaid Programs: Emergency Preparedness Requirements for Medicare and
Medicaid Participating Providers and Suppliers'' (78 FR 79081, December
27, 2013).
Comment: One commenter was concerned about proposed Sec.
483.70(e)(2)(i) using the term ``medical records,'' rather than the
term in the current Sec. 483.75(l), which is ``clinical records.'' The
commenter stated that the term ``clinical records'' appears to be
broader than ``medical records'' and states that CMS offered no reason
for the change. The commenter suggested CMS retain the current term
``clinical records.''
Response: We believe the commenter is referring to proposed Sec.
483.70(i), which addresses medical records rather than Sec. 483.70(e),
which addresses facility assessment. In the preamble to the proposed
rule, we noted that we proposed to establish requirements that mirror
some of those found in the HIPAA Privacy Rule (45 CFR part 160, and
subparts A and E of part 164). We did not specifically state that our
change to the term `medical record' was related to achieving
consistency with the HIPAA rules, but that was the impetus for the
change. The HIPAA rules in 45 CFR part 164 use the term `medical
record' rather than `clinical record'. We regard the terms as
synonymous.
Comment: One commenter suggested that we further clarify that the
[[Page 68789]]
comprehensive care plan and services provided includes records
documenting activities of daily living care and services, bathing and
skin inspections, and nutrition and fluid intake and output records.
Response: We thank the commenter for their suggestion. We proposed
that the medical record must include, in addition to the comprehensive
care plan and services provided and other existing requirements, the
reports of diagnostic testing and the progress notes of licensed
personnel. We expect that this will address some of the commenters
concern. However, we will consider further expanding this requirement
in future rule-making, which would give us the opportunity to obtain
further feedback on this issue.
Comment: CMS proposed to incorporate, without change, the current
requirements for medical directors, current Sec. 483.75(i). The
commenter was concerned that, too often, the medical director also
serves as the attending physician for most of the facility's residents.
The dual roles of medical director and attending physician make it
impossible for the medical director to perform the medical director's
specific regulatory functions--implementing resident care policies and
coordinating medical care in the facility. The medical director cannot
``oversee'' the care he or she is providing to residents as attending
physician. The commenter encouraged CMS to address this issue in final
regulations. The commenter stated that, although there may be a need,
in some limited instances, for medical directors to serve as residents'
attending physicians, CMS needs to strengthen the regulatory standards
for medical direction so that medical directors can, in fact, perform
their critical management functions. The commenter suggested that, for
example, CMS could mandate specific minimum numbers of hours per week
or per month for medical direction functions; require certification for
medical directors; limit medical directors from serving as medical
director in more than two facilities; and prohibit medical directors
from serving as the residents' attending physicians (with a limited
exceptions process).
Response: We thank the commenter for these suggestions. As noted by
the commenter, we did not propose any changes to this provision, but
are re-designating it as Sec. 483.70(h). We defer to sub-regulatory
guidance for further discussion of the medical director's specific
functions pertaining to resident care policies and coordinating medical
care in the facility. In addition, while we are not addressing them in
this final rule, we will continue to evaluate both the situation where
the medical director is fulfilling the attending physician role and the
oversight role and the need for additional standards for medical
direction. We will consider addressing these concerns in future rule-
making.
Transfer Agreement (Sec. 483.70(j))
In Sec. 483.70(j), ``Transfer Agreement, ''we proposed to modify
the current language at Sec. 483.75(n) to allow a practitioner other
than the attending physician to determine that a hospital transfer is
medically appropriate in an emergency situation, consistent with state
law and facility policy. We further proposed to specify here that the
information exchange required by existing paragraph Sec.
483.75(n)(1)(ii) be modified to require that the exchanged information
include, at a minimum, the information we proposed to require under new
paragraph Sec. 483.15(b)(2)(iii)(B). We proposed to incorporate
existing Sec. 483.75(o), assessment and quality assurance, into
proposed Sec. 483.75(c).
Comment: Some commenters indicated support for our proposal to
allow a practitioner other than the attending physician to determine
that a hospital transfer is medically appropriate in an emergency
situation, consistent with state law and facility policy.
Response: We thank the commenters. We believe this change will
ultimately benefit LTC facility residents.
Discussion of Sec. 483.70(l), (m), and (o)
Provisions on disclosure of ownership, facility closure-
administrator, facility closure, and hospice services were proposed to
be re-designated as paragraphs Sec. 483.70(k), (l), (m), and (o)
respectively, and the cross-reference in (m) updated, but otherwise
unchanged. We proposed to address training of paid feeding assistants
in Sec. 483.95 ``Training requirements.''
Comment: One commenter stated that they believe that Sec.
483.70(l) is an adequate statement of a requirement for facilities to
be judicious about hospitalizing and re-hospitalizing people. The
commenter further stated that the additional structural requirements
proposed elsewhere in the proposed regulations related to hospital
transfers are warranted or that they will somehow correct what are
essentially process problems due to diverse causes.
Response: We address the commenters concerns about additional
structural requirements related to transfer in our response to comments
on proposed Sec. 483.15. Section 483.70(l) applies to requirements for
the facility administrator in the event of a facility closure.
Comment: A few commenters recommended we add notice and timing
requirements related to facility closure, including notice to facility
staff and any union representation.
Response: Timing and notice requirements for facility closures are
specified in final Sec. 483.70(l). We did not propose any changes,
other than re-designation, to the requirements associated with facility
closure. We will consider the commenters' suggestions for future rule-
making.
Comment: One commenter was concerned that Sec. 483.70(o)(1)(ii)
enabled LTC facilities to ``not arrange for the provision of hospice
services at the facility through an agreement with a Medicare-certified
hospice.'' The commenter stated that they understand that a resident
cannot use both the SNF and hospice benefits at once and that SNF
discharge may be needed for a resident to access hospice. However, the
commenter feels this situation does not seem to be the intent of the
requirement. Moreover, the commenter is concerned that, although a
facility may assist the resident in transferring to a facility that
will arrange for the provision of hospice services, as stated in the
requirement, such a transfer disrupts a resident's care at a critical
juncture. Care cannot be person centered, and a LTC facility cannot be
considered a resident's home, if the resident is not able to access the
services of a Medicare-certified hospice. The commenter urges CMS to
delete subsection (o)(1)(ii).
Response: We respectfully decline. While we understand the
commenter's concern, such a change is outside the scope of this final
rule, as we did not propose any changes to our hospice provisions and
have not had the opportunity to obtain public feedback on this issue.
We would need to carefully consider the implications for both hospice
providers and long-term care facilities of mandating, without
exception, that long-term care facilities contract for hospice
services. There may be instances where an appropriate hospice provider
is not available to the facility or there are other reasons that the
facility is unable or unwilling to enter into a contractual
relationship with a hospice provider or the hospice provider is
unwilling or unable to enter into a contract with the facility. We
would need to consider these issues carefully before mandating that
nursing facilities contract for hospice services.
[[Page 68790]]
Binding Arbitration Agreements (Sec. 483.70(n))
We proposed in Sec. 483.70(n) to require facilities that ask
residents to accept binding arbitration to resolve disputes between the
facility and the resident to meet certain criteria. We proposed that
the facility be required to explain the agreement to the resident in a
form, manner and language that he or she understands and have the
resident acknowledge that he or she understands the agreement. The
agreement could not contain any language that prohibited or discouraged
the resident or any other person from communicating with federal,
state, or local officials, including, but not limited to, federal and
state surveyors, other federal or state health department employees, or
representatives of the Office of the State Long-Term Care Ombudsman,
regarding any matter, whether or not subject to arbitration or any
other type of judicial or regulatory action, in accordance with
proposed Sec. 483.11(i). If a facility utilized an arbitration
agreement, such facility would be required to inform the resident, at a
minimum, that the resident was waiving his or her right to judicial
relief for any potential cause of action covered by the agreement. The
agreement could only be entered into by the resident voluntarily and
would have to provide for the selection of a neutral arbitrator and a
venue convenient to both parties, the resident and the facility. We
indicated in the proposed rule that any agreement for binding
arbitration could not be contained within any other agreement or
paperwork addressing any other issues. It would have to be a separate
agreement in which the resident made an affirmative choice to either
accept or reject binding arbitration for disputes between the resident
and the facility. We also proposed to specify that the guardians or
representatives could not consent to an agreement for binding
arbitration on the resident's behalf unless that individual was allowed
to do so under state law, all of the other requirements in this section
were met, and the individual acting on behalf of the resident had no
financial interest in the facility. In addition, in the proposed rule,
we solicited comments on whether binding arbitration agreements should
be prohibited entirely.
We received a significant number of public comments concerning this
proposal. The commenters from the LTC facility industry overwhelmingly
wanted us to withdraw our proposal. Other commenters, including members
of the public, advocates, and members of the legal community,
predominantly wanted a prohibition on ``pre-dispute'' arbitration
agreements (that is, agreements made before any dispute had arisen).
Some commenters believed that arbitration should not be allowed in LTC
facilities under any circumstances. We also received numerous items of
congressional correspondence concerning arbitration agreements. One
letter signed by 34 senators urged CMS to ban pre-dispute arbitration
clauses; another letter from three members of the House of
Representatives argued that CMS lacked the authority to ban these
agreements and, even CMS did have the authority, the agency should not
prohibit them. Another senator urged us to seriously consider the
concerns surrounding pre-dispute arbitration agreements and their
consequences to residents. The senator noted that individuals seeking
long-term care, many of whom are elderly or disabled, are basing their
decisions on the cost of care and proximity to their loved ones, and
that it would be difficult for these individuals to fully understand
the gravity of contract terms and their legal rights to concerning
potential future disputes between themselves and the facilities. This
senator also noted that due to the limited grounds for appeal, it was
imperative that both parties understand the terms of the agreement,
especially in the long-term care setting, where individuals and their
families are making choices that profoundly impact the health and
safety of their loved ones.
In addition, we received a letter signed by 16 state attorneys-
general stating that pre-dispute arbitration agreements were harmful to
residents in LTC facilities and should be prohibited. Other commenters
were concerned about particular aspects surrounding arbitration, such
as: The conflict of interest in having the LTC facility explain and ask
the resident to sign the agreement; the coercive nature of having the
resident sign the agreement during the admission process, before any
dispute has arisen; the arbitration process not actually being
conducted by a neutral arbitrator or in a neutral environment; the
costs of arbitration to the residents; and the secrecy of the entire
arbitration process. Other commenters were not only against our
proposed requirements but opposed any regulation concerning
arbitration, including a ban on arbitration agreements. A summary of
the comments and our responses are set forth below. We have grouped the
discussion into issue areas raised by commenters.
Statutory Authority To Regulate Arbitration Agreements
Comment: Some commenters argued that the federal government,
through the Federal Arbitration Act (FAA) (9 U.S.C.A. Sec. 1 et seq.)
favors arbitration and requires that arbitration agreements be enforced
unless there are grounds that exist at law or in equity for the
revocation of any contract, such as enforcing the agreement would be
unconscionable (9 U.S.C.A. Sec. 2). They also pointed out that both
Congress and the courts have repeatedly refused to regulate arbitration
agreements between LTC facilities and their residents. They noted that
Congress had failed to pass five different bills to regulate
arbitration agreements in LTC facilities during [time period].\1\
Commenters also cited the Supreme Court's per curiam ruling in Marmet
Health Care Center, Inc. v. Brown (132 S.Ct.1201, 1203 (2012)), which
addressed on appeal a decision of the Supreme Court of Appeals of West
Virginia. The West Virginia court had held that all predispute
arbitration agreements pertaining to claims alleging personal injury or
wrongful death were unenforceable in accordance with West Virginia's
public policy. The Supreme Court reversed the decision, holding that
``[w]hen state law prohibits outright the arbitration of a particular
type of claim, the analysis is straightforward: The conflicting rule is
displaced by the FAA.'' Id. at 1203 (quotations omitted).
---------------------------------------------------------------------------
\1\ See Fairness in Nursing Home Arbitration Act of 2012, H.R.
6351, 112th Cong.; Fairness in Nursing Home Arbitration Act of 2009,
H.R. 1237, 111th Cong.; Fairness in Nursing Home Arbitration Act, S.
512, 111th Cong.(2009); Fairness in Nursing Home Arbitration Act of
2008, H.R. 6126, 110th Cong.; Fairness in Nursing Home Arbitration
Act, S. 2838, 110th Cong. (2008).
---------------------------------------------------------------------------
The commenters also pointed to cases in which courts rejected
various federal agencies' attempts to prohibit the enforcement of
arbitration agreements. The commenters argued that when Congress
intends to give an agency authority to prohibit or impose conditions on
the use of arbitration agreements it does so with unambiguous statutory
language, and it did not do so in the Social Security Act. They also
argued that there was no language in the Act that gave the Secretary
statutory authority to interfere in commerce, and that Congress had in
face expressed its opposition to such actions in creating the
International Court of Arbitration of the International Chambers of
Commerce (ICC) and the Federal Trade Commission (FTC). They argued that
prohibiting the use of or regulating arbitration was contrary to legal
policy and tradition favoring contract formation.
[[Page 68791]]
In addition, they claimed that a previous survey and certification
memorandum issued by CMS acknowledged that these agreements were
between the facility and resident. They noted that former HHS Secretary
Mike Leavitt had sent a letter dated July 29, 2008 addressed to the
House Judiciary Committee, a letter that officially opposed the
``Fairness in Nursing Home Arbitration Act of 2008'' that would have
amended the FAA to render pre-dispute binding arbitration agreements
between LTC facilities and their residents unenforceable.
Some commenters pointed out that, in addition to the FAA, courts
have upheld arbitration in many industries, and that many contracts in
the health care field including but not limited to admissions contracts
for LTC facilities, are on a take-it-or-leave it basis. Others argued
that arbitration had been successfully used in LTC facilities for years
and that further regulation was not necessary.
Response: We disagree with the commenters' assertions that CMS
lacks authority to issue regulations concerning arbitration agreements
contained in LTC facility admissions contracts.
First, we note that the plain language of the FAA applies only to
existing arbitration agreements voluntarily made between private
parties; it does not compel or require the use of arbitration between
private parties.\2\ Because it does not prescribe circumstances in
which arbitration agreements must be used, it does not impinge on
federal agencies' rights to issue regulations regulating the conditions
of adoption of such agreements, assuming that the Secretary otherwise
has proper statutory authority. Consequently, we believe that the
proper focus of this discussion is only on whether these rules have
been properly issued under the Act and the procedural requirements of
the Administrative Procedure Act. The proposed and final regulation
would have no legal effect on the enforceability of existing pre-
dispute arbitration agreements between LTC facilities and patients, and
therefore we believe that the terms of the FAA are not implicated.
``(``[W]hen two statutes are capable of co-existence . . . it is the
duty of the courts, absent a clearly expressed congressional intention
to the contrary, to regard each as effective.'' (citation omitted)).''
Morris v. Ernst & Young LLP, __ F.3d __ (9th Cir., August 22, 2016)
(2016 WL 4433080 at *8).
---------------------------------------------------------------------------
\2\ The applicable provision of the FAA reads, in its entirety:
``A written provision in any maritime transaction or a contract
evidencing a transaction involving commerce to settle by arbitration
a controversy thereafter arising out of such contract or
transaction, or the refusal to perform the whole or any part
thereof, or an agreement in writing to submit to arbitration an
existing controversy arising out of such a contract, transaction, or
refusal, shall be valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of any
contract.'' 9 U.S.C. 2.
---------------------------------------------------------------------------
We are finalizing this rule, which will prohibit facilities' use of
pre-dispute arbitration agreements, as a requirement for participation
in the Medicare and Medicaid programs. Under sections 1102(a) and 1871
of the Social Security Act, the Secretary of Health and Human Services
Section is authorized to issue such rules as may be necessary to the
efficient administration of the functions of the Department. Section
1866 of the Act requires all Medicare providers and suppliers to agree
to certain conditions in order to participate in the Medicare program.
Likewise, section 1902(a)(27) of the Act requires that Medicaid
providers meet all the requirements set out in the Medicaid provider
agreement; and section 1902(a)(28) of the Act requires that States
ensure that Medicaid nursing facilities meet all provisions of section
1919(b)-(d) of the Act (governing requirements for Medicaid nursing
facilities).
The Department regularly requires providers and suppliers of health
care items and services to forgo certain rights they might otherwise
have with respect to Medicare and Medicaid patients, such as the right
to pursue the patient for payment when the patient has no way of
knowing that services are not covered by Medicare (See Section 1879 of
the Act); requirements that LTC facilities give Medicare beneficiaries
written advanced notifications of non-covered services (See Skilled
Nursing Facility Advance Beneficiary Notice (SNFABN) Form CMS-10055,
accessed at https://www.cms.gov/Medicare/CMS-Forms/CMS-Forms/CMS-Forms-Items/CMS019508.html, on September 19, 2016), limitation on the rights
of insurers to market alternative products while potential Medicare
advantage customers are placed on hold (or to upsell products to
Medicare Advantage and Medicare Prescription Drug Plans (See Medicare
Marketing Guidelines, accessed at https://www.cms.gov/Medicare/Health-Plans/ManagedCareMarketing/Downloads/2017MedicareMarketingGuidelines2.pdf, on September 19, 2016), specific
limitations on the rights to provide patients with promotional
information, including a prohibition on marketing Medicare Advantage
and Part D insurance plans to Medicare beneficiaries residing in long-
term care facilities (including LTC facilities, assisted living
facilities, board and care homes, etc.) without first receiving a
specific request from the beneficiary (See Medicare Marketing
Guidelines issued June 10, 2016, located at https://www.cms.gov/Medicare/Health-Plans/ManagedCareMarketing/Downloads/2017MedicareMarketingGuidelines2.pdf, accessed on September 19, 2016),
and so on. These rules mandating that suppliers of health care items
and services forgo contractual and other commercial rights they might
otherwise have with respect to Medicare and Medicaid patients, evince a
Congressional and administrative understanding that business
arrangements with Medicare and Medicaid patients are not typical
commercial contracts where both parties engage in arms-length
bargaining. Given the unique circumstances of the LTC admissions
process, coupled with the clear interest that Medicare and Medicaid
have in protecting beneficiaries, a prohibition on the use of pre-
dispute arbitration agreements is not by its nature outside the
permissible realm of conditions a facility must meet if it wishes to
receive payment under the Medicare and Medicaid programs.
In addition to the statutory authority of the Secretary to set
general practice parameters for payment under Medicare and Medicaid,
the Secretary, under the explicit authority of Congress, is charged
with protecting the health, safety and welfare of LTC facility
residents pursuant to specifically enumerated standards set out in
sections 1819 and 1919 of the Act. In addition, Congress granted the
Secretary explicit authority under sections 1819(d)(4)(B) and
1919(d)(4)(B) of the Act to require LTC facilities to ``meet such other
requirements relating to the health, safety, and well-being \3\ of
residents or relating to the physical facilities thereof as the
Secretary may find necessary.'' As set out below, there is significant
evidence that pre-dispute arbitration agreements have a deleterious
impact on the quality of care for Medicare and Medicaid patients, which
clearly warrants our regulatory response.
---------------------------------------------------------------------------
\3\ We note that section 1919(d)(4)(B) of the Act omits ``well-
being''.
---------------------------------------------------------------------------
In addition, sections 1819(c)(1)(A) and 1919(c)(1)(A) of the Act
create a host of specified rights for LTC facility residents,
including, but not limited to, free choice, confidentiality, privacy,
and the expression of grievances. These sections also include a broad
grant authorizing the Secretary to establish ``any other right''
(sections 1819(c)(1)(A)(xi) and 1919(c)(1)(A)(xi) of the Act) as she
may deem necessary. Based on the comments received in
[[Page 68792]]
response to this rulemaking, we are convinced that requiring residents
to sign pre-dispute arbitration agreements is fundamentally unfair
because, among other things, it is almost impossible for residents or
their decision-makers to give fully informed and voluntary consent to
arbitration before a dispute has arisen. We believe that LTC residents
should have a right to access the court system if a dispute with a
facility arises, and that any agreement to arbitrate a claim should be
knowing and voluntary.
With respect to the Supreme Court's opinion in Marmet, we believe
the decision to be inapposite, because the matter under consideration
involves the enforceability of an already-existing pre-dispute
arbitration clause. As noted above, the rule we are issuing does not
affect already-existing arbitration clauses, but prohibits Medicare-and
Medicaid-participating LTC facilities from using them in the future, as
a condition of participating in these programs. While we share the same
public policy concerns about already-existing arbitration agreements,
we are only addressing agreements reached after the effective date of
this rule. Likewise, Compucredit Corp. v. Greenwood, 565 U.S. __ 132
S.Ct. 665 (2012), a case involving consumer credit, considered whether
a provision of the Credit Repair Organizations Act (15 U.S.C. 1679c(a))
(CROA) created a right to sue which would have the effect of rendering
any arbitration clause unenforceable. The Supreme Court's opinion held
that the statutory language of CROA failed to create an explicit right
to have recourse to the courts that superseded the public policy
concerns of the FAA. Because the case involved the interpretation of
CROA's language, we do not believe it to create any meaningful
restriction on the Secretary's statutory authority to prohibit
facilities' future use of pre-dispute arbitration clauses as a
condition of participation in Medicare and Medicaid.
Concerning the survey and certification letter previously published
by CMS, we do not believe the requirements in this final rule
contradict that letter. Any agreement for binding arbitration is
clearly between a facility and a resident, and this rule does not in
any way prohibit the use of post-dispute arbitration agreements. The
requirements in this final rule only ensure that the residents receive
basic protections in signing an agreement for arbitration. Since
facilities will only be able to approach residents to request them to
sign an agreement for binding arbitration after a dispute has arisen,
residents and their representatives will have the information necessary
to make an informed decision, and should also be able to negotiate
specific terms. Former HHS Secretary Leavitt's letter, dated July 29,
2008 addressed to the House Judiciary Committee, officially opposedthe
Fainess in Nursing Home Arbitration Act of 2008, which would have
amended the FAA to render pre-dispute binding arbitration agreements
between LTC facilities and their residents unenforceable. Again, we see
no contradiction between the Secretary's letter and this final rule.
The requirements in this rule do not prohibit arbitration between
facilities and residents. After a dispute arises, facilities and
residents could enter into agreements for binding arbitration and
settle a dispute in arbitration. Our rule also does not affect any
arbitration agreements signed before the effective date of the rule.
Moreover, it does not purport to preempt or otherwise supersede
arbitration agreements made after the effective date. We have only
prohibited pre-dispute binding arbitration agreements between
facilities and residents as a condition of participation in Medicare
and Medicaid. If a facility wishes to continue to utilize pre-dispute
agreements, it is free to continue in business without Medicare or
Medicaid residents.
We agree with the commenters that arbitration is clearly favored in
the Federal courts and has been used in many industries, including the
healthcare industry, successfully for years. As discussed in detail
below, however, some of the key organizations whose members conduct
nursing home arbitrations (including the American Bar Association, the
American Health Lawyers Association, and the American Arbitration
Association) have expressed concerns about the fairness of pre-dispute
arbitration clauses in the LTC context. Thus, while the FAA contains a
policy encouraging arbitration, it also recognizes that there may be
situations where enforcing an arbitration agreement is improper. For
example, the FAA's saving clause permits agreements to arbitrate to be
invalidated by certain defenses, such as ``fraud, duress, or
unconscionability,'' but not by defenses that apply only to
arbitration.
We recognize that an argument could be made that Medicare and
Medicaid beneficiaries can assert in Court the FAA's saving clause if
they believe that a pre-dispute arbitration agreement should not be
enforced. However, the comments we have received have confirmed our
conclusion that predispute arbitration clauses are, by their very
nature, unconscionable. As one commenter noted, it is virtually
impossible for a resident or their surrogate decision-maker to give
fully informed or voluntary consent to such arbitration provisions.
That same commenter also noted that refusing to agree to the
arbitration clause, in most cases, means that care will be denied.
Furthermore, Medicare and Medicaid beneficiaries are aged or disabled
and ill. Many beneficiaries lack the resources to litigate a
malpractice claim, much less an initial claim seeking to invalidate an
arbitration clause. Rather than requiring Medicare and Medicaid
beneficiaries to incur the additional fees, expense, and delay that
would be the direct cost of opposing a motion to enforce arbitration,
we have concluded that this is precisely the type of situation
envisioned by the Congressional grant of authority contained in
sections 1819(d)(4)(B) and 1919(d)(4)(B) of the Act authorizing the
Secretary to establish ``such other requirements relating to the
health, safety, and well-being of residents or relating to the physical
facilities thereof as the Secretary may find necessary.''
There is a significant differential in bargaining power between LTC
facility residents and LTC facilities. LTC agreements are often made
when the would-be resident is physically and possibly mentally
impaired, and is encountering such a facility for the first time. In
many cases, geographic and financial restrictions severely limit the
choices available to a LTC resident and his/her family. LTC facilities
are also, in many cases, the resident's residence. These facilities not
only provide skilled nursing care, but also everything else a resident
needs. Many of these residents may reside there for a prolonged period
of time, some for the rest of their lives. Because of the wide array of
services provided and the length of time the resident and his/her
family may have interactions with the LTC facility, disputes over
medical treatment, personal safety, treatment of residents, and quality
of services provided are likely to occur. Given the unique
circumstances of LTC facilities, we have concluded that it is
unconscionable for LTC facilities to demand, as a condition of
admission, that residents or their representatives sign a pre-dispute
agreement for binding arbitration that covers any type of disputes
between the parties for the duration of the resident's entire stay,
which could be for many years.
Comment: Some commenters stated that the proposed requirements
concerning arbitration agreements violate the Non-Delegation and the
Separation of Powers Doctrines (See Black's Law Dictionary, 7th ed.,
West
[[Page 68793]]
Group, MN (1999)). The Delegation Doctrine states that an agency may
only act within the authority granted to it by Congress in the enacting
legislation. The Separations of Powers Doctrine states that
governmental authority is divided between the three branches of
government--the legislative, executive, and judicial--each has its own
duties and the other branches should not encroach on its duties.
According to these commenters, CMS, is quasi-executive and quasi-
legislative. It is not part of the judicial branch and has no authority
to act in a quasi-judicial function. They argue that the attempt to
regulate arbitration amounts to interference in private contracts,
which is contrary to legal policy and tradition favoring contract
formation.
Response: As discussed above, the Secretary has statutory authority
to promulgate regulations for the residents' health, safety, and well-
being and administer the programs under the Act. In addition, the
Secretary has the authority to create specified rights for LTC facility
residents, including, but not limited to, free choice, confidentiality,
privacy, and grievances. Sections 1819(c)(1)(A)(xi) and
1919(c)(1)(A)(xi) of the Act also grant the Secretary authority to
establish any other rights for residents. Thus, the Secretary, in this
final rule, is acting well within her statutory authority, particularly
given the concerns raised by commenters over the unfairness of pre-
dispute arbitration and the harm these agreements cause LTC facility
residents. In addition, these requirements do not decide the validity
of existing arbitration agreements, but establish protections for LTC
facility residents prospectively by prohibiting pre-dispute binding
arbitration agreements and establishing requirements for post-dispute
agreements entered into after the provision's effective date. Insofar
as the commenters are going beyond this to question the Secretary's
right to issue legislative rules in general, we believe the Secretary's
authority under the Social Security Act, authorizing her to promulgate
legislative rules under the Administrative Procedure Act (5 U.S.C. 553)
that protect the well-being of Medicare and Medicaid beneficiaries, is
a matter of settled law.
Residents' Health, Safety, and Well-Being
Comment: Some commenters acknowledged that the Secretary had
authority to promulgate regulations for the health and safety of LTC
facility residents; however, they indicated that our concerns about
these agreements being detrimental to the residents' health and safety
were theoretical and the proposals were not ``necessary.'' They also
indicated that they were not aware of any incidents in which residents
or their families were precluded from expressing quality-of-care
concerns with governmental officials. In contrast, other commenters
stated that they believed that some facilities use pre-dispute binding
arbitration agreements to avoid responsibility for providing poor or
substandard care to their residents. Some commenters believed that
residents who did not sign pre-dispute binding arbitration agreements
received better care than the residents who did sign these agreements.
Many commenters expressed their belief that the proposed requirements
did not go far enough to protect residents' rights. Most of these
commenters wanted to ban arbitration agreements, especially pre-dispute
arbitration agreements. However, some of the commenters said that post-
dispute binding arbitration agreements should be allowed.
Response: In addition to reviewing the comments received, we
conducted a literature review and also reviewed court opinions
involving arbitration in LTC facilities. Many the articles we reviewed
provided evidence that pre-dispute arbitration agreements were
detrimental to the health and safety of LTC facility residents (See,
e.g., Tripp, Lisa, ``A Senior Moment: The Executive Branch Solution to
the Problem of Binding Arbitration Agreements in LTC facilities
Admission Contracts'', Campbell Law Review Sym. 2009, 31 Campbell
L.Rev. 157 (2009); Tripp, Lisa, ``Arbitration Agreements Used by LTC
facilities: An Empirical Study and Critique of AT&T Mobility v.
Concepcion'', 35 Am. J. Trial Advoc. 87 (2011); and Bagby, K. and
Souza, S., ``Ending Unfair Arbitration: Fighting Against the
Enforcement of Arbitration Agreements in Long-Term Care Contracts'', 29
J. Contemp. Health L. & Pol'y (2013)). These articles discuss, among
other things, the unequal bargaining power between the resident and the
LTC facilities; inadequate explanations of the arbitration agreement;
the inappropriateness of presenting the agreement upon admission, an
extremely stressful time for the residents and their families; negative
incentives on staffing and care as a result of not having the threat of
a substantial jury verdict for sub-standard care; and the unfairness of
the arbitration process for the resident. Bagby and Souza note that
``oftentimes, only after a nursing facility's negligence has caused a
resident severe injury or death, does the resident or family member
discover that, upon admission to the nursing facility or during their
stay, the resident became bound to settle disputes in arbitration,
ostensibly giving up the resident's constitutional right to a jury
trial.'' (29 J. Contemp. Health L. & Pol'y 183). Tripp notes that
``residents of nursing homes are frail and elderly people who are
completely dependent on the facility and its employees for their safety
and health. Thus, many residents and their families would not oppose
the arbitration provision because they are fearful of antagonizing the
facility'' (31 Campbell L.Rev. 157, p. 5). Tripp further notes that,
``with so many operators selecting pre-dispute binding arbitration,
this may have the effect of forcing some vulnerable elders suffering
serious injury or even death to adjudicate their claims outside of the
public court system with all of its safeguards, and into private
arbitration without those protections'' (35 AM. J. Trial Advoc. 89).
Additionally, a number of commenters stated that arbitration
clauses have a detrimental effect on patient safety. One commenter, a
healthcare provider who had previously treated LTC facility residents,
stated that they had personally witnessed resident neglect and
attributed it to facilities believing that they were immune to any
legal consequences for their mistreatment because of the likelihood
that they would prevail in binding arbitration. Another commenter, a
large association of lawyers, asserted that permitting pre-dispute
arbitration clauses creates an unnecessary shield that protects
facilities. Other commenters stated that binding arbitration clauses
generally cover all claims, including claims involving serious bodily
harm and death, and allow facilities to escape accountability for
neglect and abuse. We believe we have ample basis between the published
research and the statements of commenters to support the connection
between the use of pre-dispute arbitration clauses and the health and
safety of LTC facility residents.
Comment: Some commenters stated that proposed Sec. 483.70(n)(4),
regarding communication with outside parties, was unnecessary because
proposed Sec. 483.11(i) contained similar provisions. Proposed section
483.70(n)(4) would require that the binding arbitration agreement could
not contain any language that prohibited or discouraged the resident or
anyone else from communicating with federal, state, or local officials,
including but not limited to, federal and state surveyors, other
[[Page 68794]]
federal and state health department employees; and representatives of
the Office of the State Long-Term Care Ombudsman, in accordance with
Sec. 483.10(k).
Response: Although the two requirements are similar, they are not
identical. Proposed Sec. 483.11(i), which is being moved but otherwise
finalized as proposed, states that facilities must not prohibit or in
any way discourage a resident from communicating with federal, state,
or local officials, including, but not limited to, federal and state
surveyors, other federal and state health department employees,
including representatives of the Office of the State Long-Term Care
Ombudsman and the protection and advocacy system, regarding any matter,
whether or not subject to arbitration or any other type of judicial or
regulatory action. However, Sec. 483.70(n)(4) specifically addresses
the arbitration agreement and applies both to the resident and anyone
else who would like to, or chooses to, communicate with outside
authorities. We wished to ensure that pre-dispute arbitration
agreements could not be used to in any way prohibit or discourage
anyone from contacting or communicating with outside authorities, while
Sec. 483.10(k) simply addresses the resident's right to contact
outside entities. We believe both requirements are necessary to protect
residents' rights and have finalized both of these requirements in this
rule.
Arbitration as an Appropriate Forum
Comment: Some commenters believed that the proposed rule suggested
that the arbitration proposals were being proposed due to recent
changes in the business practices of LTC facilities, especially an
increased prevalence of binding arbitration agreements in these
facilities. These commenters stated that LTC facilities have been using
these agreements for many years. These commenters also noted that
residents can still obtain judicial review of an arbitration decision
if the agreement was entered into as a result of corruption, fraud, or
undue means or that an arbitrator was guilty of misconduct or exceeded
his or her powers. They also pointed out that these agreements only
establish the forum in which legal claims will be heard and not that
residents are denied an opportunity to bring them. However, other
commenters pointed out that the differences between arbitration and
litigation did result in disadvantages to residents in addition to the
lack of judicial review, such as, lack of choice of arbitrators, the
venue for the arbitration, and limitations on discovery and damages,
such as punitive damages, which might have been available if the
dispute were settled in a court. Another commenter, a national
association whose members included several groups dedicated to the
protection of senior citizens and consumer rights, argued that these
pre-dispute binding arbitration agreements and the associated
disadvantages they have for residents actually deter many residents
from pursuing claims and result in claim suppression.
Response: Although arbitration has been an alternative dispute
resolution strategy that has been in use for many years, based upon the
comments we have received, as well as our literature review, it appears
to us that the use of arbitration agreements has increased in LTC
facilities in recent years (Tripp, Lisa. ``A Senior Moment: The
Executive Branch Solution to the Problem of Binding Arbitration
Agreements in LTC facilities Admission Contracts.'' Campbell Law Review
Sym. 2009 31 Campbell L. Rev. 157 (2009); and Schleppenback, John R.,
``Something Old, Something New: Recent Developments in the
Enforceability of Agreements to Arbitrate Disputes Between LTC
facilities and Their Residents'', 22 Elder L.J. 141 (2014)). A number
of commenters to this rulemaking also stated that there has been a
marked increase in the use of binding arbitration agreements by LTC
facilities in recent years. For example, one commenter, a large
organization of attorneys, referenced a Wall Street Journal article
that noted that LTC facilities became some of the biggest converts to
binding arbitration after sustaining some very large jury awards in the
1990s (Nathan Koppel, ``LTC facilities, in Bid to Cut Costs, Prod
Patients to Forgo Lawsuits'' Wall Street Journal, April 11, 2008,
available at http://www.wsj.com/articles/SB120786025242805879, accessed
August 3, 2016). The Wall Street Journal article also stated that
attorneys that litigate on both sides of LTC facility-resident disputes
agreed that arbitration in LTC facilities was quickly becoming the rule
rather than the exception in these cases.
We disagree with the commenters who suggest that arbitration is
merely a change of the forum and therefore, inconsequential.
Arbitration changes the manner in which a dispute will be resolved by,
among other things, waiving the right to a jury trial, and providing
only limited grounds to appeal the arbitrator's decision. Some
commenters noted that arbitration can be very expensive for the
resident, with some agreements requiring the resident to bear some of
the costs of the arbitration, and the limited discovery generally
allowed puts the resident at a distinct disadvantage. However, due to
contingency agreements with attorneys and the public funding of the
court system, residents have a possibility of litigating a dispute with
the LTC facility for little or no money. As noted, by entering into an
arbitration agreement, both parties are waiving their right to a jury
trial. There is no public forum and the arbitrator's decision will not
usually be publically available, whereas a court decision would be a
matter of public record. We believe that a public knowledge about a
dispute and a public record of a decision are vitally important for
checking the worst abuses of non-compliant LTC facilities.
We also disagree with the implication that judicial review of an
arbitrator's decision is adequate protection for beneficiaries. A
resident cannot usually challenge an arbitrator's decision even if it
is based on a mistake in the applicable law for the issue in dispute.
In addition, even when there are grounds under the applicable state law
to overturn the arbitrator's decision, this requires additional
judicial proceedings, which adds additional time and expense to the
litigation.
We are also concerned about the possibility of claim suppression.
If a resident or their representative does not believe that arbitration
is a fair process, they may not pursue a claim despite its merit; the
secretive nature of the process and decision only adds to the public
perception that the forum may be biased against the resident. However,
we believe that the requirements being finalized in this rule should
mitigate some of commenters' concerns about claim suppression.
Comment: One commenter pointed out that other Medicare and Medicaid
healthcare providers use arbitration agreements. This commenter also
stated that there was no factual or legal justification for imposing
requirements for arbitration agreements on LTC facilities and not on
these other providers.
Response: We believe that the concerns about pre-dispute binding
arbitration are applicable to any resident that signs one as a
condition of receiving services, regardless of provider or supplier
type. However, we have decided to make LTC facilities our first
priority because many of the residents spend an extended period of time
in these facilities, and as noted, these facilities often serve as the
resident's residence. A number of commenters agreed with our
conclusions. Whether arbitration
[[Page 68795]]
agreements should be prohibited for other providers and supplier types
is beyond the scope of this rule. However, we will retain this comment
for review in case there is future rulemaking in this area.
Comment: One commenter made a Freedom of Information Act (FOIA)
request asking for the comments that raised our concerns about
arbitration agreements in LTC facilities. They noted that CMS' response
was that there was only one document and that was a three-year old
letter that had been submitted by a national organization for trial
attorneys. The commenter stated that the letter contained an inaccurate
portrayal of the use of arbitration agreements in LTC facilities.
Response: We understand that the commenter may have different views
from those expressed in the letter that raised the issue of arbitration
agreements in LTC facilities. However, our proposed requirements for
arbitration agreements were not based solely upon that letter. We
performed a literature search and reviewed judicial decisions that
involved arbitration agreements in LTC facilities. We also received
input from healthcare providers with experience working in or surveying
LTC facilities. Thus, our proposed requirements were based upon
multiple sources of information, not just the letter described by the
commenter. Moreover, as noted, we have received nearly a thousand
comments on our proposal and reviewed substantial amounts of
information supporting many different points of view.
Comment: Many commenters argued that arbitration was beneficial for
residents and their families as well as facilities. Disputes could be
resolved more quickly and with less animosity and expense than
litigation. Some commenters also argued that prohibiting these
agreements would only benefit lawyers, result in protracted litigation,
increase costs to the facilities, and increase the burden on an already
overwhelmed court system. This would also result in resources for
resident care being diverted for litigation. Other commenters argued
that prohibiting arbitration could be detrimental to residents. If a
dispute was not worth a sufficient amount of money, the resident or
their representative might not be able to obtain a lawyer, which could
result in the resident not being able to address the dispute with the
facility. Some commenters discussed how arbitration agreements may
include a prohibition against the individual pursing a class action. A
class action arbitration or lawsuit may be the only opportunity an
individual may realistically have to pursue their claim. If they could
not join a class action, they could be effectively denied any avenue of
redress for the dispute. Other commenters were concerned that we had
not sufficiently assessed not only the costs of these proposals but
also the real life, practical implications of these proposals within
the long-term care community and the daily practice within this
community. Other commenters disagreed with these arguments. Some argued
that there could still be protracted litigation even within the context
of pre-dispute arbitration agreements; and noted that arbitration could
be very expensive for the resident.
Response: There are both advantages and disadvantages associated
with both pre-dispute arbitration agreements and arbitration itself. As
finalized in this rule, residents and their representatives have the
option of signing an agreement for binding arbitration with the
facility after a dispute arises. In addition, residents can also use
the facility's grievance process, as set forth at Sec. 483.10(j).
However, arbitration agreements, particularly pre-dispute agreements
provided to residents on a ``take-it-or-leave-it'' basis, present
opportunities for facilities to include terms that undercut commenters'
contention that arbitration is a neutral process that works to the
benefit of both parties. A report of the American Bar Association
noted, ``[c]lauses frequently specify that the provider can select the
arbitration service and the location of the arbitration. Some include
caps on damages, even for tragic and possibly preventable deaths.
Moreover, some clauses or arbitration procedures restrict the discovery
process-limiting the number of investigative interviews or the exchange
of documents. `This could prevent an aggrieved consumer's lawyer from
deposing all possible employees who might have witnessed an incident at
a nursing home and gaining access to relevant records,' whereas the
facility has the records and personnel at its disposal (Sturgeon, J.,
``Nursing Homes Use Arbitration As a Shield,'' The Roanoke Times, Aug.
24, 2006). The resident may have to pay substantial fees for the
arbitration.'' (American Bar Association, Commission on Law and Aging,
Policy on LTC facility Arbitration Agreements 111B, page 4, February
16, 2009, at http://www.americanbar.org/content/dam/aba/directories/policy/2009_my_111b.authcheckdam.pdf, accessed on September 15, 2016).
By contrast, this final rule will allow residents to avail themselves
of the benefits of arbitration once a dispute has arisen and the
resident and/or his/her representatives can determine whether it may be
an advantageous forum for them.
Concerning class actions, we share the commenters' concerns about
residents possibly not being able to pursue their claims. However,
since we did not propose to address matters relating to class actions
in our proposed rule, we are unable to address them in this final rule.
We also note that to date, litigation against LTC facilities has
involved primarily malpractice claims, which tend to be individual-
specific. Because class actions against LTC facilities remain rare, we
believe that it is not yet clear that there is a problem that would
require additional regulation. We will retain these comments and
concerns about protection of class-action litigation and consider for
future rulemaking.
Comment: Some commenters pointed out the lawyers in their areas are
already aggressively advertising for LTC facility litigation. Another
commenter noted that some residents and/or their families are already
dispositionally angry before they even arrive at the facility and may
find fault with the facility despite the provision of quality care.
Other commenters noted that depending upon the jurisdiction and the
aggressiveness of the attorney, jury verdicts could be excessive;
however, an arbitrator who is an impartial and experienced profession
should be able to look at the dispute and make a rational decision.
Some commenters noted that an important factor in determining liability
insurance premiums was whether a facility used pre-dispute arbitration
agreements and that prohibiting these agreements could result in a
substantial increase in LTC facilities' insurance premiums. Other
commenters expressed their concern that prohibiting pre-dispute binding
arbitration agreements could result in a substantial increase in the
cost of business without any commensurate quality in care. It would
increase the amount of frivolous lawsuits because arbitration was
effective in deterring those claims due to the lower damages generally
awarded by an arbitrator. In addition, attorney fees are generally much
lower in arbitration. This could result in costs becoming prohibitive
and force some LTC facilities to close.
Response: We agree with the commenters that arbitration offers
advantages to both parties. We also realize that settling disputes in
court might take longer and result in more costs to facilities.
However, a resident or their representative's choice to engage in
arbitration to settle a dispute should be informed and voluntary. This
final rule does not prohibit binding
[[Page 68796]]
arbitration, only the use of pre-dispute binding arbitration
agreements. Once a dispute arises between a resident and the facility,
the parties can enter into an agreement for binding arbitration subject
to the requirements in this rule. No resident, resident representative,
or facility is being denied the opportunity to engage in arbitration to
settle a dispute, and this rule has no effect on the enforceability of
arbitration agreements in general.
Comment: Some commenters have argued that CMS should not be
interfering with a matter that is a private contract between the
parties. They noted that some states have already passed legislation
concerning arbitration. This legislation may directly concern
arbitration, arbitration in LTC facilities, or tort reform. Commenters
argued that these issues should be left to the states.
Response: We disagree with the commenter's contention that LTC
services are a private contractual matter between two independent
parties. Unlike traditional arms-length commercial contracts that are,
for the most part, business arrangements between two private
individuals, the Medicare and Medicaid programs have a significant
interest in both the services being delivered as well as the well-being
of the beneficiary. In many cases, Medicare and Medicaid are the sole
payors for the services. This is why, for example, Congress has
required that the Secretary create a wide assortment of rules and
regulations relating to quality of care and the delivery of services in
the LTC context.
Furthermore, because the Congress has expressed an clear interest
in protecting the rights of Medicare and Medicaid beneficiaries in LTC
facilities, it has granted the Secretary statutory authority to
establish rights for residents (sections 1819(c)(1)(A)(xi) and
1919(c)(1)(A)(xi) of the Act) and to protect the health, safety and
well-being of residents in LTC facilities (sections 1819(d)(4)(B) and
1919(d)(4)(B) of the Act). Because of overriding Congressional mandate
that the Secretary protect the health and welfare of LTC residents, we
believe that a federal uniform response is both necessary and
appropriate.
When, How Arbitration Agreement Is Reached
Commenters noted that residents or their representatives are
typically asked to sign arbitration agreements during the admission
process, and that the pre-dispute arbitration agreement is one clause
in a contract comprising many pages. Since no dispute had yet occurred,
the resident or their representative could not fully understand the
rights they were waiving or how any future dispute would be handled.
They might also not understand or be thinking about the possible
problems that could occur during their stay, including substandard care
that could result in serious injury or even death. It is also highly
unlikely they would have consulted a lawyer about the agreement.
Commenters noted that admission to a LTC facility is usually an
extremely stressful time for the resident and his or her family. The
resident may have a serious injury, surgery, or illness, is being
removed from their usual living arrangements, and is being admitted to
a facility for an indeterminate period of time.
One commenter noted that one state, Georgia, has a statute that
states, concerning medical malpractice claims, ``no agreement to
arbitrate shall be enforceable unless the agreement was made subsequent
to the alleged malpractice and after a dispute or controversy has
occurred and unless the claimant is represented by an attorney at law
at the time the agreement is entered into'' (Ga. Code Ann., Sec. 9-9-
62).
Some commenters pointed out that in the state of Mississippi this
proposal could result in neither the resident nor a healthcare
surrogate being able to sign an agreement to arbitrate disputes with
the facility. Miss. Code Ann. Sec. 41-41-211 allows for a healthcare
surrogate to make healthcare decisions for another person if that
individual's primary care physician determines that he or she lacks
capacity and no agent or guardian has been appointed or the agent or
guardian is not reasonably available. Commenters also cited a court
case, Mississippi Care Center of Greenville, LLC. et al. v. Nancy
Hinyub, 975 So.2d 211 (Miss. 2008) (Hinyub), a case in which the
Mississippi Supreme Court held that a health care surrogate could not
bind a party to arbitration unless the arbitration provision was an
essential part of the consideration for the receipt of ``health care.''
The commenters noted that after Hinyub, Mississippi LTC facilities now
require patients or their surrogates to sign pre-dispute arbitration
agreements as a condition of admission and receipt of services. Some
commenters noted that a facility's explaining an arbitration clause to
a resident could be viewed as providing legal advice and therefore the
unlicensed practice of law.
Response: When a resident or his or her representative signs an
agreement for binding arbitration, he or she is waiving the right to go
to court and have a dispute decided by a judge and jury. We believe
that any waiver of this right should be voluntary and informed. Would-
be residents are often presented a ``take-it-or-leave-it'' contract
under circumstances where meaningful or informed consent for pre-
dispute arbitration is often lacking. Thus, we believe that voluntary
post-dispute arbitration agreements are the best way to balance the
policy favoring arbitration with the need to protect beneficiaries from
unfairly waiving their rights to a jury trial. While we support the
public policy behind the Georgia statute referenced by the commenter,
we acknowledge that this provision was determined to have been
preempted by the Federal Arbitration Act (see Triad Health Management
of Georgia, LLC, III v. Johnson, 298 Ga. App. 204, 679 SE.2nd 785
(2009) and suggests that leaving this policy to the discretion of
states may not be an effective strategy. Consequently, this case, like
others, illustrates the necessity of prohibiting pre-dispute
arbitration agreements.\4\ With respect to the decision in Hinyub, we
note that this rule will effectively moot the holding in this case,
since LTC facilities will no longer be able to assert that pre-dispute
binding arbitration agreement was an element of consideration in the
admissions contract. To the extent that Hinyub would be applicable to
surrogates' power to bind the resident to a post-dispute arbitration
agreement meeting our requirements, we defer to state law on this
matter.
---------------------------------------------------------------------------
\4\ According to the complaint in Triad, ``as a proximate result
of Triad's negligence, Johnson's father, Matthew Johnson, developed
bed sores, which led to his development of sepsis and his subsequent
hospitalization, illness, and death.'' 298 Ga. App. At 204.
---------------------------------------------------------------------------
Comment: A few commenters were concerned about the requirement in
proposed Sec. 483.70(n)(5)(iii) that indicated that another individual
could sign the agreement for binding arbitration if, among other
things, that individual had no interest in the facility. Commenters
pointed out that some residents might have next-of-kin or
representatives that work for the facility or are otherwise associated
with, or have an interest in, the facility. This proposed requirement
could result in representatives that might want to sign the agreement,
but would be prohibited from doing so.
Response: We understand that, in some circumstances, this could
mean that a particular representative for a resident would not be able
to sign an agreement for binding arbitration. However, we continue to
believe that individuals who have a financial or employment interest in
a facility have
[[Page 68797]]
an inherent conflict of interest and must not sign an agreement for
binding arbitration for another person. We believe that the resident's
family would be able to find an individual not associated with the
facility for such purposes. In any case, the rare occasion when the
representative of the patient also has a financial interest in the
facility will not prevent us from implementing a provision that
generally protects residents against conflicts of interest.
Unequal Bargaining Power
Comment: Commenters noted that facilities would likely have
experience with arbitrations, but not residents. The facility usually
decides, and sometimes names in the arbitration agreement, how the
arbitrator will be chosen and where the arbitration will be held. Some
commenters argued that the arbitrator has a financial incentive to be
favorable to the facility. It is unlikely that the resident will need
to hire an arbitrator in the future; however, facilities are likely be
involved in future arbitrations. Hence, the arbitrator will want
facilities to select them for future arbitrations. Other commenters
said that this potential bias could be addressed by educating residents
and their representatives about local arbitrators. Other commenters
believed that no regulation could overcome the problems with
arbitration in LTC facilities, such as the facility's superior
bargaining power, the risk that the resident or their representative
will not fully understand the agreement, that signing the agreement
would inherently be coerced, unfair, or unconscionable, and the
inherent conflict of interest of having the facility explain the
agreement (the potential future adversary in any dispute). Some
commenters noted that facility may imply that the agreements were not
voluntary such that the resident or their representative may not
believe they have a choice on whether to sign it. As previously noted,
arbitration agreements are often just one paragraph of an admissions
package that generally that is quite extensive. The arbitration
agreement may be a clause within another document or otherwise does not
stand out. Thus, the resident or their representative may not even
realize they are signing an arbitration agreement. The agreement may
not be sufficiently explained so that the resident or their
representative fully understands the rights they are waiving or the
arbitration process. The facility employee admitting the resident may
not even fully understand the agreement.
Response: We agree with those commenters that asserted that there
is unequal bargaining power between the residents and their
representatives and the facilities. The resident's immediate need for
nursing care and lack of experience with arbitration means that
residents are unlikely to ask for time to seek legal advice concerning
the agreement for binding arbitration. We believe that this unequal
bargaining power cannot be alleviated with the protections we initially
proposed. Thus, in this final rule, in response to a significant volume
of public comment, we are prohibiting the use of pre-dispute binding
arbitration agreements between residents and the facilities. After a
dispute arises, residents or their representatives will have the time
to seek legal advice, if they choose to, and evaluate the option to
arbitrate the dispute with the facility.
Three major legal or arbitration associations have made policy
statements against pre-dispute binding arbitration agreements. In 2009,
the American Bar Association (ABA) issued a policy statement that
opposed the use of mandatory, binding, pre-dispute arbitration
agreements between a long-term care facility and a resident or a person
acting for the resident. That policy statement also indicated that the
ABA supported enactment of federal regulations that would, among other
things, invalidate such arbitration agreements (American Bar
Association, Commission on Law and Aging, Policy on LTC facility
Arbitration Agreements 11B, February 16, 2009, at http://www.americanbar.org/content/dam/aba/directories/policy/2009_my_111b.authcheckdam.pdf, accessed on August 3, 2016). The
American Health Lawyers Association's Alternative Dispute Resolution
Services Rules of Procedure for Arbitration, revised in May 2012,
indicated that their ADR service would administer a ``consumer health
care liability claim'' only if ``all of the parties agreed in writing
to arbitrate the claim after the injury has occurred'' or arbitration
is order by a judge (file:///G:/DIQS/LTC%20Facilities/Regulations/
Resources/AHLA%20Arbitration%20Procedures%20May%2031,%202012.pdf,
citation added). (A later revision to the statement did not include
this prohibition, but did include requirements to ensure, among other
things, that a pre-dispute arbitration agreement was voluntary, could
not be a condition for obtaining care, and included a right to revoke
the agreement within 10 days after being signed.) (https://www.healthlawyers.org/dr/SiteAssets/Lists/drsaccordion/EditForm/Rules%20Effective%20April%207.pdf, accessed on August 3, 2016). In
addition, in 2003, the American Arbitration Association issued a
Healthcare Policy Statement that said ``it would not administer
healthcare arbitrations between individual patients and healthcare
service providers that relate to medical services, such as negligence
and medical malpractice disputes, unless all parties agreed to submit
the matter to arbitration after the dispute arose'' (file:///C:/Users/
PI47/Downloads/HC%20Policy%20Statement.pdf, accessed August 3, 2016).
After a dispute arises and residents or their representatives have
the opportunity to seek legal counsel and review their options, we
believe they can make a rational and informed decision about
arbitration. Thus, while the bargaining power between LTC facilities
and residents will undoubtedly never be equal, we believe that the
requirements finalized in this rule will provide residents with the
protections they need to preserve their rights, while still preserving
the option of arbitration if both parties decide to arbitrate a
dispute.
Confidentiality of Arbitration Process and Decisions
Comment: Several commenters indicated that the arbitration process
is usually confidential and secretive. Most, arbitration agreements
have confidentiality clauses that prohibit both parties from discussing
the dispute and what happens during the arbitration process, including
the decision, with outside parties. Some of the commenters were
concerned that arbitration regarding disputes involving abuse and
neglect shields facilities from having their poor quality or dangerous
conditions exposed to the public and prevented judges who would hear
the case if it were decided in court from making findings of fact and
conclusions of law that would influence future nursing facility
conduct. One commenter stated that not only did arbitration and its
secrecy result in substandard care for residents but also that
facilities had incentives to, and did, provide better care to residents
who did not sign the pre-dispute arbitration agreements. Other
commenters asked how CMS would be able to survey facilities for
compliance with arbitration requirements.
Response: We agree that the secrecy surrounding the arbitration
process is a substantial concern. We are also concerned that the
arbitration process, especially the secrecy it involves, could
[[Page 68798]]
result in some facilities evading responsibility for substandard care.
We are finalizing the proposed requirement at Sec. 483.70(n)(4) that
the agreement cannot contain any language that prohibits or discourages
the resident or anyone else from communicating with federal, state, or
local officials. When any dispute involves any allegations that relate
to our long-term care requirements, especially the health care provided
by the facility or instances of abuse or neglect, we believe it is
necessary for the protection of the health and safety of residents that
federal, state, and local health and regulatory officials have access
to the relevant information and be able to conduct an investigation as
appropriate. Anything that could interfere with federal, state, or
local health and regulatory officials or LTC advocates from learning
of, or restricting the investigation of, instances of substandard care
or other serious instances affects the health and safety of residents.
When a surveyor discovers substandard care or another violation of the
LTC facility requirements of participation and cites the facility with
a deficiency, the surveyor would cite the deficiency on a Form CMS-
2567, which is filed with both the state surveyor agency and CMS. This
form is available to the public and can be accessed on the LTC Facility
Compare Web site at https://www.medicare.gov/nursinghomecompare/search.html. Concerning CMS' ability to survey for compliance with the
requirements in this final rule, we have also inserted a requirement
that when the facility and a resident resolve a dispute with
arbitration, a copy of the signed agreement for binding arbitration and
the arbitrator's final decision must be retained by the facility for 5
years and be available for inspection upon request by CMS or its
designee. This will provide surveyors and CMS the opportunity to learn
how often and under what circumstances arbitration is occurring at a
facility, as well as the outcomes of any arbitrations. In addition, CMS
will be publishing sub-regulatory guidance for surveyors concerning the
requirements. Although arbitration proceedings will not have the
potential publicity of a trial, arbitrations in LTC facilities will no
longer be confidential and secret. CMS will be monitoring the use of
arbitration in LTC facilities through the survey process, not only
through the normally scheduled surveys but also through the complaint
process.
General Comments
Comment: Some commenters argued that it was inconsistent for CMS to
describe the problems associated with the use of binding arbitration
agreements but nonetheless authorize their use in LTC facilities. Some
commenters also believed the proposed arbitration requirements were
inconsistent with other proposed requirements in the proposed rule.
Specifically, commenters noted that Sec. 483.15(a)(2)(iii), which
prohibits facilities from requesting or requiring residents ``to waive
potential facility liability for losses of personal property'' could be
deemed to be at cross-purposes with binding arbitration. In addition,
the commenters noted that proposed Sec. 483.10 confirms the residents'
rights to exercise rights as citizens or residents of the United
States.
Response: We agree with the commenters that indiscriminate use of
arbitration agreements in LTC facility contracts can create a risk of
improperly insulating facilities from liability or loss of property,
and they, likewise, create a risk of residents unwittingly waiving
their rights. We also recognize, however, there are legal and policy
reasons supporting post-dispute arbitration. We believe a balance be
struck between protecting residents' rights and conducting arbitration
when appropriate. We do not believe that the requirements identified by
the commenters are inconsistent with the arbitration requirements. In
cases where residents or their representatives sign arbitration
agreements, they still have the right to pursue claims for losses of
personal property. However, the dispute would be handled through
arbitration, rather than in court. Section 483.10, which confirms the
residents' rights to exercise their rights as citizens or residents of
the United States, is also consistent with the arbitration
requirements. The arbitration requirements in no way denigrate the
residents' rights as citizens or residents of the United States. We
will continue to monitor arbitration agreements to ensure that
residents' rights are, in fact, protected.
Comment: Some commenters argued that our proposed requirements
concerning arbitration were inconsistent with the positions taken by
the legal community and other federal agencies. One commenter said that
one legal scholar has called on the Department of Health and Human
Services to declare arbitration agreements by LTC facilities
unconscionable and to ``prohibit federal funding of LTC facilities that
use them'' (citing Lisa Tripp's ``A Senior Moment''). They pointed to
the 2009 Midyear Meeting of the American Bar Association, in which the
House of Delegates adopted Resolution 111B, which was introduced by the
ABA Commission on Law and Aging and co-sponsored by the Section of
Dispute Resolution. The Resolution, which became official policy of the
ABA, ``supports the enactment of federal, state, and territorial
legislation and regulations that oppose the use of mandatory, binding,
pre-dispute arbitration agreements between a long-term care facility
and a resident of such facility or person acting on behalf of such
resident'' accessed at http://www.americanbar.org/content/dam/aba/directories/policy/2009_my_111b.authcheckdam.pdf, on September 19,
2016). In addition, the commenters discussed an initiative of the
Consumer Financial Protection Bureau (CFPB), which initiated rulemaking
on arbitration agreements, and, in March 2015, issued a
Congressionally-mandated report, which found that arbitration
agreements limit consumer relief in disputes. Some commenters pointed
to examples in which arbitration was specifically prohibited for
specific types of claims. For example, commenters cited a 2009
amendment to the Department of Defense Appropriations Act, which
imposed a restriction on the ability of certain DOD contractors and
subcontractors to enter into or enforce mandatory arbitration
agreements with their employees in cases of discrimination or sexual
assault (Section 8116, Pub. L. 111-118 December 19, 2009). According to
the commenters, since its passage, the amendment has been successfully
implemented by the Department of Defense, the government's largest
federal contracting agency. (See 48 CFR 252.222-7006 Restrictions on
the Use of Mandatory Arbitration Agreements). Another example was from
2014, when President Obama issued an Executive Order (E.O.) aimed at
ensuring safe workplaces and fair pay for American workers. Among its
protections, the E.O. mandates that companies with federal contracts of
$1 million or more cannot require their employees to enter into pre-
dispute arbitration agreements for any disputes arising out of Title
VII of the Civil Rights Act or from torts related to sexual assault or
harassment. E.O. 13673, Section 6, 79 FR 45309 (July 31, 2014).
Response: While we recognize that some members of the legal
community and other federal agencies may have taken different
approaches to this issue,
[[Page 68799]]
each situation is different, and the legal and policy issues are unique
to each particular agency and program. While some commenters have
requested that we ban all arbitration, we have determined, at this
point, to implement a policy that strikes a balance between banning
arbitration in all situations and allowing unfettered use of
arbitration clauses with no restrictions on their terms or usage. We
are aware of attempts to regulate arbitration taken by these agencies,
and we are also aware of the positions taken by some groups against
arbitration and pre-dispute arbitration agreements. The regulations
finalized in this rule prohibit pre-dispute binding arbitration
agreement and are intended to protect residents from many of the
problems identified by critics of arbitration. We also note that many
groups do not call for an outright ban on arbitration in LTC facility
contracts but, rather, encouraged us to add limits on arbitration
agreements. For example, as noted above, the American Bar Association's
comments stated that, while arbitration can be a viable means of
resolving LTC facility resident-facility disputes, it is only
appropriate after the dispute has arisen and each party knows the
contours and seriousness of the claims. See the ABA's Position
Statement 111B at http://www.americanbar.org/content/dam/aba/directories/policy/2009_my_111b.authcheckdam.pdf, accessed on August 1,
2016. The other requirements finalized in this rule also work to
protect the rights of the residents and prohibit many of the unfair
practices that have been identified by the commenters. We will continue
to monitor this issue in order to ensure that the requirements
implemented by these regulations adequately protect resident' rights
and, if we determine that they do not, we may revisit the issue of
banning arbitration or adding additional protections for residents.
Comment: Some commenters pointed out that the proposed requirements
could adversely affect residents' legal positions in litigation
regarding the enforceability of arbitration agreements in general.
Facilities could use their compliance with the requirements to argue
that the resident or their representative fully understood the
agreement and voluntarily choose to sign the agreement. The
requirements could also be interpreted as in some way condoning or
authorizing binding arbitration agreements in facilities. It could make
it more difficult for residents to challenge the arbitration.
Response: These regulations are not meant to limit or provide
standards for courts to use in determining if an arbitration agreement
should be enforced in, for example, a motion to compel arbitration.
These requirements are minimum requirements for ensuring fairness for
LTC facility residents. By addressing these agreements in this rule, we
are not condoning them, but simply acknowledging that they are used by
LTC facilities. The requirements will provide residents with the
minimum protections they need and we intend that these rules will allow
residents to make an informed and voluntary choice. With respect to the
litigation posture of parties that might have wished to challenge a
facility's motion to compel arbitration under our proposed rule, we
believe that this concern has been mooted by our decision to prohibit
the use of pre-dispute arbitration agreements entirely. Insofar as a
party would wish to challenge a post-dispute arbitration agreement, we
believe the existing jurisprudence interpreting the FAA would be
applicable under such circumstances.
Comment: Commenters disagreed with our contention that the proposed
requirements ensured that residents and their representatives would be
offered a ``voluntary'' choice concerning binding arbitration. The
commenters stated that both arbitration and mediation are alternatives
to litigation and options for alternative dispute resolution (ADR). If
arbitration is the only ADR option offered to residents and their
representatives, it is a forced substitute rather than an alternative
that is voluntarily and knowingly entered into by the parties.
Response: We agree that ADR consists of multiple options in
addition to arbitration. However, we are only addressing arbitration in
this rule. Rules regarding mediation are not within the scope of this
rulemaking.
Comment: Some commenters cited Hinyub for the proposition that it
is permissible for LTC facilities to require residents or their
surrogates to sign arbitration agreements as a condition of admission
and receipt of services. Commenters claim that, if these agreements
were not part of the admissions contracts, there may be no one to sign
them, which would deny the resident the option to choose arbitration,
which would be a violation of the FAA.
Response: Although the commenters cite Hinyub as support for the
legality of mandatory arbitration agreements under Mississippi law, to
the contrary, this case illustrates the Secretary's concerns about the
fundamental fairness of making arbitration agreements a mandatory
condition for admission to a LTC facility. The dispute in Hinyub
included, among other things, claims against a LTC facility and others
for malpractice, negligence, fraud, breach of fiduciary duty, and
wrongful death. The response of Mississippi's LTC facilities to require
arbitration agreements as an organic part of the agreement, illustrates
our underlying concerns about the incentives such agreements provide to
deliver substandard care. Under our final rule, Mississippi LTC
facilities that require new residents to agree to pre-dispute
arbitration as a condition of admission will not be deemed to be in
compliance with our requirements and will be subject to termination.
Comment: One commenter recommended that any regulations concerning
arbitration be delayed. The commenter believed that there was
insufficient evidence of what problems, if any, existed with
arbitration in LTC facilities. The commenter noted that Congress has
considered various pieces of legislation concerning this issue and not
passed any of them; this demonstrates that the issues are not well
understood or no optimal solution has yet to be determined. They
recommended that CMS not finalize any requirements concerning
arbitration until Congress has more fully explored this issue and
determined what, if any, actions are appropriate.
Response: We disagree with the commenter. In response to the
proposed rule, we received almost 1,000 comments about our proposed
arbitration requirements. In addition, we believe that our review of
case law and the literature, including law review articles, amply
demonstrates the importance of the issues surrounding arbitration in
LTC facilities. Because we believe that further monitoring of the
effects of this rule are necessary, we are requiring that LTC
facilities retain a copy of the signed agreement for post-dispute
binding arbitration and the arbitrator's final decision for 5 years to
that it can be inspected by CMS or its designee upon request. This will
enable us to gather information on arbitrations that have taken place
in LTC facilities to determine if the requirements finalized in this
rule are providing the protections resident need.
We also note that although no specific legislation has passed,
Congress has not been silent on this issue. Several hearings have been
held on this issue, and there is a voluminous legislative record
evidencing the need for action on this matter. We also note that there
is broad support for protecting residents of LTC facilities. For
instance, in a Joint Hearing of the Senate Judiciary Subcommittee on
Antitrust, Competition, and Consumer Rights and
[[Page 68800]]
the Special Committee on Aging, Sen. Gordon Smith (R-OR) stated, ``The
Federal Arbitration Act was enacted in 1925 as a means to ensure a
framework for the enforcement and to determine the validity of
arbitration agreements. . . . Today, however, we are talking about a
particularly vulnerable population. And when we talk about such
populations, we must ensure an additional level of scrutiny to
guarantee that their rights are protected, as they may not be in a
position to protect themselves.'' (Senate Special Committee on Aging,
``S. 2838, the Fairness in Nursing Home Arbitration Act'', 110th
Congress, June 18, 2008, accessed at http://www.aging.senate.gov/hearings/s2838-the-fairness-in-nursing-home-arbitration-act September
15, 2016).
Comment: One commenter, an association of elected officials,
believed that it was important that consumers be informed of the
potential impact of binding arbitration agreements on LTC facility
residents. They suggested that HHS develop a public information
campaign concerning these agreements and tools to assist consumers to
understand the implications of these agreements and how they would
affect their rights as consumers.
Response: We understand and appreciate the commenter's concern that
consumers, especially facility residents and their representatives, be
informed about binding arbitration agreements, their implications, and
how they affect consumer rights. However, such a campaign is beyond the
scope of this rule.
Final Decision
We are adding a requirement to proposed Sec. 483.70(n) to provide
that Medicare and Medicaid-participating LTC facilities can no longer
enter into pre-dispute binding arbitration agreements with their
residents or their representatives. We are retaining the proposed
requirements and specifying at paragraph (n) that they will apply if a
facility chooses to ask a resident to sign a post-dispute arbitration
agreement. We have also revised proposed Sec. 483.70(n)(3) to provide
that an LTC facility cannot require the resident to sign a post-dispute
arbitration agreement as a condition of the resident's continuing to
stay at the facility. Finally, to address commenters' concerns
regarding the confidentiality of the arbitration process and its
negative effects on patient health and safety, we have added a new
paragraph (n)(2)(vi) to provide that when the facility and a resident
resolve a dispute with arbitration, a copy of the signed agreement for
binding arbitration and the arbitrator's final decision must be
retained by the facility for 5 years and be available for inspection
upon request by CMS or its designee. Although the arbitration
proceedings themselves could still be confidential, this requirement
will enable us to evaluate whether agreements for binding arbitration
and the impact of arbitration in the long-term care industry is having
desired effects for both the residents and the facilities.
We emphasize that this final rule does not prohibit all arbitration
agreements between residents and the LTC facilities in which they
reside, and does not have any effect on existing arbitration agreements
or render them unenforceable. It has no effect on LTC facilities that
do not participate in the Medicare or Medicaid programs. It does not
create any new standard for determining whether an arbitration
agreement is unconscionable. It only affects Medicare and Medicaid LTC
facilities insofar as they wish to ask their residents if they wish to
voluntarily enter into arbitration. After a dispute arises, the
resident and the LTC facility may voluntarily enter into a binding
arbitration agreement if both parties agree and comply with the
relevant requirements set forth in Sec. 483.70(n) of this final rule.
Social Worker (Sec. 483.70(p))
We proposed to relocate the requirement for and qualifications of a
social worker from the current Sec. 483.15(g)(3) to Sec. 483.70(p).
In addition, there is a list of human services fields from which a
bachelor's degree could provide the minimum educational requirement for
a social worker. We proposed to add ``gerontology'' to that list of
human services fields.
Comment: Commenters were very supportive of and expressed their
belief in the importance of social workers in LTC facilities. Some
commenters were very concerned about the qualifications for social
workers in LTC facilities, especially the education that is required.
Some commenters disagreed with allowing individuals with bachelor's
degree in a human services field other than social work, which is a
human services field, to work as social workers in LTC facilities and
believed that the minimum requirement for a social worker in a LTC
facility should be a bachelor's in social work. Other commenters wanted
a bachelor's or master's degree in social work as a minimum education
requirement and that the degree be from a program accredited by the
Council On Social Work Education (CSWE). Other commenters' objected to
using the title of ``social worker'' for anyone who does not have a
bachelor's (BSW), master's (MSW) or doctorate in social work.
Commenters pointed out that individuals with a bachelor's in a human
services field do not have the same education as social workers. Social
workers, at both the bachelor's and master's degree levels, receive
training in interviewing and psychosocial assessment, care planning,
and intervention. Individuals with other human services degrees may not
be adequately prepared to identify and address psychosocial issues. In
addition, some commenters specifically disagreed with the proposed
addition of ``gerontology'' to the examples of human services degrees
that could qualify someone as a social worker. Commenters noted that
CSWE-accredited programs provided competency-based education that
integrates and applies knowledge, skills, and values and are based on
nine competencies and that these competencies are congruent with the
competency based emphasis in the proposed rule. They also noted that
these programs provide for field placements that are under the
supervision of professional social workers. They noted their concerns
about CMS recognizing degrees in psychology, rehabilitation counseling,
sociology, special education, and other ``human services'' as
sufficient preparation for LTC facility social work. They were also
concerned with the de-professionalization of LTC facility social work
and cited to a study that indicated that 20 percent of social services
director did not have even a bachelor's degree and only 50 percent held
a bachelor's in social work. Commenters also noted that the educational
preparation for BSWs and MSWs prepares individuals to fulfill the
requirements in the proposed rule, such as, promoting quality of care
and quality of life for all residents (Sec. 483.25), advocating for
residents' rights and helping facilities uphold those rights (Sec.
483.10), preventing and addressing abuse, neglect, and exploitation of
older adults and other LTC facility residents (Sec. 483.12), and
facilitating transitions of care and discharge planning (Sec. 483.15
and Sec. 483.20). Commenters also pointed to other areas that
professional social workers were well-equipped to perform in the
facility, such as, strengthening communication among residents,
families, and facility staff; facilitating financial and medical
decision making, including advance care planning; and providing
individual, family, and group education and counseling related to
[[Page 68801]]
illness, disability, treatment, interpersonal relationships, grief,
loss, dying, and death. Commenters also agreed with the one year of
supervised social work experience in a health care setting working
directly with individuals.
Response: We understand the commenters' concern for the
qualifications for social workers in LTC facilities. However, pursuant
to sections 1819(b)(7) and 1919(b)(7) of the Act, for skilled nursing
facilities and nursing facilities, respectively, with 120 or more beds,
the facility must have a full-time social worker with at least a
bachelor's degree in social work or similar professional qualifications
employed to provide or assure the provision of social services. This is
a statutory requirement. Thus, we cannot remove the requirement that an
individual with similar professional qualifications can provide or
assure the provision of social services. Individuals with a bachelor's
degree in a human services field, including but not limited to,
sociology, special education, rehabilitation counseling, and psychology
can be qualified social workers under the current requirements for
long-term care facilities. We believe that LTC facilities need the
flexibility to hire individuals who are qualified and have the
competencies and skill sets to perform the jobs they are hired to do.
According to this final rule, LTC facilities must conduct a facility
assessment, which assesses, among other factors, the care required by
the resident population and the staff competencies necessary to care
for that resident population (Sec. 483.70(e)), and, must have
sufficient direct care/direct assess staff with the appropriate
competencies and skills to provide nursing and related services to
assure resident safety and attain or maintain the highest practicable
physical, mental and psychosocial well-being of each resident (Sec.
483.40(a)). If the LTC facility does employ an individual with a human
services degree as a social worker, that individual must have the
competencies and skill sets to perform the duties and responsibilities
the LTC facility determines are needed for the social worker position
in their facility. Thus, we are finalizing the social worker
qualifications at Sec. 483.70(p) as proposed, with ``gerontology'' as
an example of a human services field that an individual with a
bachelor's degree could qualify as a social worker in a LTC facility.
Comment: Some commenters wanted to delete the exemption for a full-
time social worker in LTC facilities with 120 or fewer beds and require
that all LTC facilities, regardless of size, be required to employ a
full-time social worker. Other commenters recommended a ratio of one
full-time equivalent (FTE) social worker for the first 50 residents and
one FTE social worker for up to an addition 12 residents. Commenters
noted that this is the ratio proposed by the National Nursing Home
Social Work Network's Policy Committee. They believe that all LTC
facility residents need the services of social workers because of their
importance in ensuring residents' quality of care and quality of life
and that there must be a sufficient number of social workers in each
facility. Commenters also noted that the new requirements in the
Mandatory Data Set (MDS) increased the social workers' workload and has
already affected the quantity and quality of psychosocial services they
can provide and the launch of MDS 3.0 will increase that workload. In
addition, some commenters argued that the 120-bed rule was incompatible
with the current and proposed requirements to provide person-centered
care.
Response: As discussed above, the requirement for one full-time
social worker for LTC facilities with more than 120 beds is statutory
(sections 1819(b)(7) and 1919(b)(7) of the Act). One of the focuses of
this final rule is person-centered care (see Sec. 483.21
``Comprehensive person-centered care planning''). Social services are
essential; however, the requirements for social workers will vary
depending up the needs of the resident population, as well as the staff
and the facility itself. Smaller LTC facilities might not need a full-
time social worker. Larger LTC facilities or facilities with residents
with complex needs might require either more than one full-time social
worker or more staff to assist the social worker. As discussed above,
the facility assessment performed by the LTC facility should identify
the social services the resident population requires (Sec. 483.70(e)).
The LTC facility should then determine how to ensure that those social
services are provided. Hence, we will be finalizing the requirement for
the social worker as proposed.
Comment: Commenters noted that some LTC facilities might decide to
hire social services staff to fulfill administrative function, such as
completing financial paperwork, or meeting some of the residents'
needs, such as arranging appointments or locating lost items. The
commenters wanted these individuals to be called ``social services
assistants'' and not be counted as ``qualified social workers,''
especially for any minimum staffing ratio.
Response: As discussed above, we are finalizing the qualifications
for a ``qualified social worker'' as proposed. Hence, the facility may
refer to anyone who meets those qualification as a ``qualified social
worker'' regardless of the duties and responsibilities they are
assigned. In addition, as discussed above, we will not be establishing
any minimum staffing ratios for LTC facilities, including ratios for
social workers.
Comment: Some commenters stated that social work practitioners with
more experience providing quality psychosocial care could provide
consultation to BSWs and MSWs, especially those with little experience,
to ensure that residents receive high-quality psychosocial care. The
commenters recommended that LTC facilities provide expert social work
consultation to social work directors. This consultation should address
practice, administrative, and organizational issues along with program
planning and professional development. A consultant could also provide
consultation to the facility administration and staff concerning
program planning, policy development, and priority setting related to
social work services; case consultation concerning the psychosocial
needs of residents and their families; and in-service education on
selected topics.
Response: We agree with the commenters that many LTC facilities and
their residents could benefit from consultation with an expert in
social work. However, we do not believe that we should require that
consultation in this final rule. As discussed above, LTC facilities
must perform a facility assessment and determine what resources it
needs to care for its residents. LTC facilities need the flexibility to
not only assess the needs of the resident population but determine how
to satisfy those needs. When a LTC facility determines that it is
deficient in the social services it needs to provide its residents, and
perhaps the staff or facility itself, then we would encourage them to
obtain consultation concerning social services. However, we will not
require that consultation.
Comment: Some commenters acknowledged that some facilities had
reported difficulties in locating an adequate number of BSWs or MSWs.
These commenters offered some suggestions on how LTC facilities could
recruit and retain BSWs and MSWs. These suggestions included partnering
with social work degree programs, chapters in social work associations,
and state associations that are concerned about the care provided by
[[Page 68802]]
LTC facilities to recruit social workers. Commenters also believed that
LTC facilities could enhance their recruiting and retention of social
workers by making their jobs more appealing and noted some of the
challenges social workers encounter in LTC facilities, such as low
wages, large caseloads, professional isolation, and assigned tasks
being below their skill level. Commenters also recommended that CMS
provide extra resources to support social worker recruitment and
retention efforts for LTC facilities, especially for frontier and rural
areas.
Response: We appreciate the commenters' suggestions. We encourage
LTC facilities to consider these suggestions for recruiting and
retaining social workers. However, requiring LTC facilities to follow
these suggestions will not be included in this final rule. In addition,
providing more resources is beyond the scope of this rule. LTC
facilities are expected to comply with these requirements within the
funding that is provided.
Mandatory Submission of Staffing Information Based on Payroll Data in a
Uniform Format (Sec. 483.70(q))
Finally, we indicated that in the proposed rule entitled ``Medicare
and Medicaid Programs; Prospective Payment System and Consolidated
Billing for Skilled Nursing Facilities (SNFs) for FY 2016, SNF Value-
Based Purchasing Program, SNF Quality Reporting Program, and Staffing
Data Collection'' (CMS-1622-P) (80 FR 22044), published on April 20,
2015, at Sec. 483.75(u), we proposed to require that facilities submit
staffing information based on payroll data in a uniform format. Section
6106 of the Affordable Care Act of 2010 (Pub. L. 111-148, March 23,
2010) added a new section 1128I to the Act that requires a facility to
electronically submit to the Secretary direct care staffing
information, including information for agency and contract staff, based
on payroll and other verifiable and auditable data in a uniform format
according to specifications established by the Secretary. We proposed
to re-designate Sec. 483.75(u) (as set out in the April 20, 2015
proposed rule at 80 FR 22044) to Sec. 483.70(q). We note that the
proposed rule was finalized on August 4, 2015 (see 80 FR 46389) and we
are finalizing the re-designation of the requirement in the final rule
at Sec. 483.75(u) to Sec. 483.70(q) in this final rule.
As a result of comments received, we are finalizing this section as
proposed, with the following revisions:
We have added 45 CFR part 92 to the regulations
specifically referenced in Sec. 483.70(c) ``Relationship to other HHS
regulations.''
We have withdrawn our proposal to delete the phrase
``where licensing is required'' from Sec. 483.70(d)(2)(i).
In Sec. 483.70(n), we have modified paragraph (1) to
prohibit the use of pre-dispute agreements for binding arbitration
between any resident or their representative and the facility and allow
post-dispute agreements for binding arbitration, if the facility
complies with the requirements in this section.
V. Quality Assurance and Performance Improvement (QAPI) (Sec. 483.75)
Section 6102 of the Affordable Care Act amended the Act by adding
new section 1128I. Subsection (c) of section 1128I of the Act requires
that the Secretary establish and implement a QAPI program requirement
for all SNFs and NFs, including those that are part of a multi-unit
chain of facilities. Under the QAPI provision, the Secretary must
establish standards relating to facilities' QAPI program and provide
technical assistance to facilities on the development of best practices
in order to meet these standards. No later than 1 year after the date
on which the standards are issued, a facility must submit to the
Secretary a plan for the facility to meet these standards and implement
the best practices, including a description of how it would coordinate
the implementation of the plan with quality assessment and assurance
activities currently conducted under sections 1819(b)(1)(B) and
1919(b)(1)(B) of the Act. In accordance with the QAPI provisions of the
Affordable Care Act, we proposed to establish these standards.
Current regulations at Sec. 483.75(o) require a facility to
maintain a quality assessment and assurance (QAA) committee, consisting
of the director of nursing services, a physician designated by the
facility, and at least three other members of the facility staff. The
QAA committee must meet at least quarterly and identify quality
deficiencies and develop and implement plans of action to correct the
deficiencies. The facility is only required to disclose records of the
QAA committee if the disclosure is related to the compliance of the
committee with the regulatory requirements. We proposed to retain the
substance of the existing QAA requirements at Sec. 483.75(o) and
pursuant to the requirements of the Affordable Care Act, we proposed a
revised Sec. 483.75 entitled, ``Quality Assurance and Performance
Improvement.''
At Sec. 483.75(a), we proposed to require that a facility develop,
implement, and maintain an effective, comprehensive, data-driven QAPI
program, reflected in its QAPI plan, that focuses on systems of care,
outcomes, and services for residents and staff. The QAPI program would
be designed to monitor and evaluate performance of all services and
programs of the facility, including services provided under contract or
arrangement. We proposed that the facility's governing body, or
designated persons functioning as a governing body, would ensure that
the QAPI program is defined, implemented, and maintained and addresses
identified priorities. Therefore, we proposed at Sec. 483.75(a)(1)
that the facility maintain documentation and demonstrate evidence of
its QAPI program. This would include, but would not be limited to, the
QAPI plan. We proposed at Sec. 483.75(a)(2) that the facility would be
required to submit the QAPI plan to the State Agency or federal
surveyor, as the agent of the Secretary, at the first annual
recertification survey 1 year after the effective date of these
regulations. In addition, we proposed at Sec. 483.75(a)(3), based on
the Secretary's authority at sections 1819(d)(4)(B) and 1919(d)(4)(B)
of the Act to establish other requirements relating to the health and
safety of residents, to require that the facility present the QAPI plan
to the State Agency surveyor at each annual recertification survey and
upon request to the State Agency or federal surveyor at any other
survey and to CMS upon request. Further, we proposed at Sec.
483.75(a)(4), to require the facility to present its documentation and
evidence of an ongoing QAPI program upon request of a State Agency,
federal surveyor, or CMS. The State Agency, pursuant to its agreement
with the Secretary under section 1864 (a) of the Act, would consider
such plan in making its certification recommendation and providing
evidence to the CMS Regional Office for a compliance determination.
At Sec. 483.75(b), we proposed requirements for the design and
scope of the QAPI program. We proposed to require that the facility
design its QAPI program to be ongoing, comprehensive and address the
full range of care and services provided by the facility. When
implemented, the QAPI program would be required to address all systems
of care and management practices and always include clinical care,
quality of life, and resident choice. It would also require LTC
facilities to utilize the best available evidence to define and measure
indicators of quality and facility goals that reflect processes of care
and facility operations that have
[[Page 68803]]
been shown to be predictive of desired outcomes for residents of a
facility and reflect the complexities, unique care, and services that
the facility provides.
We proposed at Sec. 483.75(c) to establish requirements for QAPI
program feedback, data systems and monitoring. We proposed at new Sec.
483.75(c)(1) that, as part of its QAPI process, the facility must
maintain effective systems to obtain and use feedback and input from
direct care/direct access workers, other staff, and residents, resident
representatives and families to identify opportunities for improvement.
At Sec. 483.75(c)(2), we proposed to require that the systems,
governed by appropriate policies and procedures, also include how the
facility would identify, collect, and use data from all departments,
including how the information would be used to identify high risk, high
volume or problem-prone areas. At Sec. 483.75(c)(3), we proposed to
require that the policies and procedures include a description of the
methodology and frequency for developing, monitoring, and evaluating
performance indicators. Finally, at Sec. 483.75(c)(4), we proposed to
require that the system, policies and procedures include the process
for identification, reporting, analysis, and prevention of adverse
events and potential adverse events or near misses. We indicated in the
proposed rule that this would include methods by which the facility
obtains information on adverse events and potential adverse events from
residents, family and direct care/direct access staff, and how the
facility addresses and investigates the adverse event or potential
adverse event and provides feedback to those same individuals.
We proposed to establish a new Sec. 483.75(d) to address QAPI
program systematic analysis and systemic action. We proposed in Sec.
483.75(d)(1) to require that the facility take actions aimed at
performance improvement and, after implementing those actions, to
measure the success of those actions and to track performance to ensure
that the improvements are sustained. We further proposed to require in
Sec. 483.75(d)(2), that the facility develop policies describing how
they would use a systematic approach (such as, root cause analysis,
reverse tracer methodology, and health care failure mode and effects
analysis, for example) to determine underlying causes of problems
impacting larger systems.
At Sec. 483.75(e), we proposed to establish requirements for
program activities. Specifically, we proposed to require at Sec.
483.75(e)(1) through (3) that the facility establish priorities for
performance improvement activities that focus on patient safety;
coordination of care; autonomy; choice; and high risk, high volume,
and/or problem-prone areas identified as a result of the facility
assessment as specified in Sec. 483.70(e). We proposed to require that
performance improvement activities track medical errors and adverse
resident events, analyze their causes, and implement preventative
actions and mechanisms that include feedback and learning throughout
the facility. Finally, we proposed to require that the QAPI program
activities include Performance Improvement Projects (PIPs). Under the
proposal, the facility is required to conduct distinct performance
improvement projects. The number and frequency of improvement projects
conducted by the facility must reflect the scope and complexity of the
facility's services and available resources. We proposed that each
facility be required to implement at least one project annually that
focused on a high risk or problem prone area identified through the
required data collection and analysis.
Finally, at Sec. 483.75(f), we proposed to require that the
facility ensure, through the governing body or executive leadership,
that an ongoing QAPI program would be defined, implemented, and
sustained during transitions in leadership and staffing and that the
QAPI program is adequately resourced, including ensuring staff time,
equipment, and technical training as needed. Furthermore, we proposed
that the governing body or executive leadership would have to ensure
that the QAPI program identified and prioritized problems and
opportunities based on performance indicator data; resident and staff
input that reflected organizational processes, functions, and services
provided to residents; that corrective actions addressed gaps in
systems, and were evaluated for effectiveness; and that clear
expectations were set around safety, quality, rights, choice, and
respect.
We proposed to re-designate Sec. 483.75(o) as Sec. 483.75(g). At
Sec. 483.75(g)(1), we proposed revisions to clarify that the QAA
committee membership requirements would be a minimum requirement. We
also proposed the requirement that the Infection Control and Prevention
Officer (ICPO) would participate in the quality assessment and
assurance committee.
At Sec. 483.75(g)(2), we proposed that the quality assessment and
assurance committee would report to the facility's governing body, or
designated persons functioning as a governing body, regarding its
activities, including implementation of the QAPI program required under
new Sec. 483.75(a) through (f). We further proposed that the committee
would coordinate and evaluate activities under the QAPI program,
including performance improvement projects, and that the committee
would review and analyze data collected under the QAPI program as well
as data from pharmacists resulting from monthly drug regimen reviews
and the resulting reports as specified in Sec. 483.45(c)(4).
We proposed to add a new Sec. 483.75(h) to address disclosure of
information. We proposed to re-designate existing Sec. 483.75(o)(3) as
Sec. 483.75(h)(1) and add a new Sec. 483.75(h)(2) to clarify that
facilities, in order to demonstrate compliance with the requirements of
this section, may be required to disclose or provide access to certain
QAPI information. Specifically, we proposed to require, to the extent
necessary to demonstrate compliance with the requirements of this
section, access to systems and reports demonstrating systematic
identification, reporting, investigation, analysis, and prevention of
adverse events; documentation demonstrating the development,
implementation, and evaluation of corrective actions or process
improvement activities; and other documentation considered necessary by
a state or federal surveyor in assessing compliance. We further
proposed to re-designate Sec. 483.75(o)(4) as Sec. 483.75(i).
In the proposed rule we included a discussion regarding technical
assistance, materials, and resources available to LTC facilities on the
development of best practices relating to QAPI (80 FR 42168, July 16,
2015). We encourage readers to review that discussion and take
advantage of the tools available.
Comment: Many commenters stated that they generally support QAPI in
facilities. One commenter stated that they were pleased that we have
proposed standards for QAPI.
Response: Thank you. These standards build on our experience
requiring QAPI for other providers and, importantly, on the knowledge
gained during the CMS QAPI demonstration project in LTC facilities. We
believe facilities are familiar with the principles we are using and
expect that some facilities have or are in the process of developing
QAPI programs using the materials developed during the project and now
available through the CMS Web site.
Comment: Some commenters felt that mandating QAPI in facilities was
unnecessary due to current voluntary
[[Page 68804]]
activities in hospitals and managed care, including quality improvement
efforts to reduce unnecessary re-hospitalizations, and value-based
purchasing.
Response: We disagree. Effective QAPI programs are critical to
improving the quality of life, and quality of care and services
delivered in facilities. Furthermore, QAPI in LTC facilities is
mandated by Section 6102 (c) of the Affordable Act and CMS does not
have any discretion to not implement the provision.
Comment: One commenter requested that we not use the word
``program'' to encourage facilities to make QAPI part of the everyday
life and operations of the facilities.
Response: We thank the commenter and agree that QAPI should be part
of the everyday life and operations of the home; however, the statute
specifically refers to the ``QAPI program'' and, for clarity and
consistency, we have chosen to remain consistent with statutory
language.
Comment: One commenter supported our focus on ``high-risk, high-
volume, or problem-prone areas'' and suggested we not include a list of
areas that each facility must address. If we were to provide such a
list, the commenter suggests that inclusion of topics addressing
psychosocial well-being, mental and behavioral health, and quality of
life are crucial. They specifically note that a positive approach that
focuses on improving long-term residents' everyday experience,
promotion of short-term residents' decision making, and improving
palliative and end of life care would be particularly useful. One
commenter stated that ``each organization should be able to determine
their own areas of focus based on the collection of data, trends, and
comparable benchmarks vs arbitrary mandates.''
Response: We are not adding a specific list of QAPI topics or
required performance improvement projects at this time. We want to
allow facilities the flexibility to determine what issues should be
prioritized for their QAPI program based on the needs of the facility
and its residents. If we decide to require specific topics or
performance improvement projects in the future, we will consider the
topics suggested by the commenter as well as other comments we may have
received.
Comment: One commenter felt that the proposed requirements exceeded
our authority, and suggested that we withdraw our proposal and replace
it with the statutory language. Some commenters felt that the proposed
requirements are very detailed, too prescriptive, and significantly
exceed the requirements for other providers. One commenter believes
that the number of system areas that must be minimally included is too
large. Some commenters expressed general concern that our proposed QAPI
provisions lack specific requirements or stated that additional
guidance is necessary. One commenter suggested regional sharing of
program development, training, program evaluation and other resources.
Some commenters suggested that we allow a 5 year implementation
period during which the facility would show progress in its
implementation process during the annual standard survey, while other
commenters suggested a 2 to 3 year phase-in for the QAPI provisions.
Response: We appreciate the commenters concerns regarding both the
need for sufficient specificity to meet requirements and sufficient
flexibility. We have worked to achieve a balance between specificity
and flexibility in recognition of the wide diversity that exists among
LTC facilities. We have re-evaluated our proposal to determine if we
can be less prescriptive in some areas, and have modified our language
accordingly. For example, we have eliminated the specific methodologies
listed in proposed Sec. 483.75(d)(2)(i), as these may be more
appropriate in sub-regulatory guidance. We do not agree that we have
exceeded our authority and should include only the statutory language
as suggested.
In addition, we have received many comments regarding the overall
implementation of this rule and address that issue in section II.B.
Implementation. With regard specifically to QAPI, we note that the
statute requires at 1128I(c)(1) of the Act that the QAPI plan be
submitted to the Secretary not later than one year after the date on
which the requirements are issued. We have modified our regulatory
provision to mirror the statutory language. We would expect facilities
to show their efforts to effectuate the QAPI plan, on an ongoing basis
thereafter, with no fixed start or end date.
QAPI is intended to be a continuous part of the everyday life and
operations of the home. We note that facilities have been expecting
these regulations for a number of years, since publication of the
Affordable Care Act in 2010. In developing our proposal, we relied
heavily on the experiences gained in the CMS QAPI demonstration project
which was conducted from Sept 2011 through Sept 2013. Resources and
tools were developed as a result of that pilot, were rolled out on June
7, 2013 (see https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-13-37.pdf) and remain available on the CMS Web site (see https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/QAPI/NHQAPI.html). In addition, QIOs are currently using these tools in
their work with LTC facilities and additional resources are under
development. We would encourage facilities to share best practices and
other resources as they develop their QAPI programs. Furthermore, this
proposal, while tailored to long-term care facilities, is consistent
with our requirements (Conditions of Participation and Conditions for
Coverage) for QAPI for other providers, such as community mental health
centers (Sec. 485.917), end stage renal disease facilities (Sec.
494.110), hospitals (Sec. 482.21), hospices (Sec. 418.58), organ
procurement organizations (Sec. 486.348), and transplant centers
(Sec. 482.96) as well as proposed requirements for home health
agencies (79 FR 61164).
Comment: One commenter supports the concept of an effective QAPI
program, but feels we have over-emphasized data and outcomes and do not
adequately acknowledge the qualitative processes such as clinical
reasoning, correct diagnoses, and the nuances of selecting
individualized treatments that are the foundation of high-quality
results. They further state that any requirements about QAPI programs
should focus attention on improving processes and practices, including
those related to both clinical and nonclinical decision making,
reasoning, and problem solving. The commenter is concerned that
excessive emphasis on data and results distracts attention from
improving the basis for those results, that available quality measures
and data only represent a small part of the many aspects of quality
care, and that aggregate results may not faithfully reflect the quality
of the overall care of individual residents. The commenter suggests
language to strike a better balance between looking at data and
focusing on practices and processes that need optimized regardless of
the data. The commenter also suggests that the QAPI requirements
specifically include case review.
Response: We believe that our focus on outcomes is appropriate. We
agree that QAPI should focus on improving processes and practices, and
believe that data is a necessary element in doing so. Data is used to
identify problems in processes and practices and to set goals related
to improving those processes and practices. It is then used to validate
that a change is successful in improving
[[Page 68805]]
that process or practice and subsequently to monitor that the change is
sustained. Using data involves critical reasoning and analytical
thinking; these are not mutually exclusive. We agree that case review
is one tool that can be used to identify problems and collect data. We
would defer specificity regarding such tools to sub-regulatory
guidance.
Comment: One commenter suggests we use the term ``information''
instead of ``data.'' They note that ``information'' includes data as
well as other knowledge, whereas data could exclude other information.
Response: We agree that information other than data may be useful
in the QAPI process, but we also believe that data-facts, measurements,
and statistics collected for analysis and planning are an integral part
of the QAPI process. Rather than substitute one term for the other, we
have, where appropriate, used both.
Comment: One commenter believes the regulations should be more
flexible with regard to performance improvement projects (PIP) and that
the proposal is overly prescriptive. The commenter notes that there are
many performance project activities that would not be considered a PIP
but are activities that could be built into everyday activities and
real-time problem solving. They state that the PIP requirement is
problematic and these regulations need a better balance of diverse
methods including qualitative reasoning and real-time problem solving.
Another commenter suggested that each facility be required to have
at least three PIPs in place at a time, reflecting different areas of
concern and at least one reflecting residents' rights and quality of
life. The commenter further suggests that a facility cited with
immediate jeopardy deficiency(ies) be required to initiate a PIP in the
area where the immediate jeopardy was cited.
One commenter suggests that CMS develop and annually update a list
of a dozen mandatory PIPs reflecting issues that CMS has identified as
significant quality of care and quality of life issues. Each facility
would then be required to choose at least one PIP from that list
annually.
Response: The comments regarding the PIP requirements reflect
opinions advocating for both less and more specificity in our PIP
requirements. One of the critical elements of QAPI is to give
facilities the flexibility to use QAPI to best meet their own needs. In
order to give facilities this flexibility, we believe that a less
prescriptive approach to PIPs is appropriate. However, this flexibility
must occur in the context of a QAPI program that addresses the full
range of care and services provided by the facility. Accordingly, we
limited our proposal to require only one PIP annually, and declined to
establish mandatory PIPs at this time.
We agree that not all improvement activities are PIPs and believe
that our proposed regulatory language is inclusive of these activities.
(See Sec. 483.75(e)). In addition, we have reviewed our proposals and,
where appropriate, have expanded our references to PIPs to include
other improvement activities. While we agree that areas in which an
immediate jeopardy deficiency is cited require immediate action, we are
not certain that a PIP will always be an appropriate response, and
therefore have not adopted this recommendation at this time.
Comment: One commenter stated that they were pleased that the
medical director or his or her designee is specifically listed as a
member of the QAA committee. They support medical director and other
medical practitioner involvement in the development and assessment of
the QAPI program.
Response: Thank you. We agree that medical director involvement in
QAPI is an important leadership element. We also believe that the
involvement of other medical practitioners can contribute to the
success of a QAPI program.
Comment: Some commenters suggested that we needed to ensure
resident, resident representative, and staff participation in the QAPI
program. The commenters raised concerns and suggested additional
language that would address resident, resident representative, and
staff involvement in the QAPI program.
Response: Our proposed requirements include obtaining and using
feedback and input from staff, residents and resident representatives.
We are finalizing this particular requirement as proposed.
Comment: Some commenters recommend adding staffing and worker
safety elements to the QAPI requirements.
Response: The QAPI program is required to address the full range of
care and services provided by the facility. This would include staffing
as well as a number of other areas. We defer additional specificity to
sub-regulatory guidance. While facilities could certainly include
worker safety in their QAPI processes, we have not specifically
included worker safety in this regulation as we believe worker safety
is more appropriately the purview of other federal agencies such as
HRSA and OSHA.
Comment: One commenter suggested that we require effective
collaboration training for members of the QAA committee.
Response: We agree that effective collaboration training could be
useful for members of a QAA committee, as well as individuals in other
positions. However, we do not mandate any specific trainings for QAA
committee members and do not believe that we should mandate this
specific training for all QAA committee members. There are many
trainings that could be equally beneficial, and some that might be a
greater priority, based on prior training and experience of the members
of the QAA committee. We will defer such decisions to the facility.
Comment: One commenter recommended that we require a contracted
consultant pharmacist sit on the Quality Assessment and Assurance
Committee. The commenter stated that adverse medication events,
including medication errors, remain a serious problem in LTC
facilities.
Response: We appreciate the commenters' suggestion, but, while we
would agree that this would be a good practice, we are not adopting
this recommendation at this time. As part of the update of these
requirements, we have updated our requirements related to pharmacy
services and mandated adverse event monitoring as a part of the QAPI
program. We believe that these requirements will help reduce adverse
medication events. Mandatory membership on the Quality Assessment and
Assurance Committee reflects a minimum standard and facilities can add
members based on the needs and priorities of the facility.
Comment: Several commenters supported our proposed requirements
regarding disclosure of QAPI information to demonstrate compliance with
the requirements for the QAPI program. One commenter stated that they
believed it would improve facility compliance with the requirements and
would assist in federal and state oversight. Another stated that the
purpose of the quality assurance provisions is to ensure that LTC
facilities identify and act on information about neglect, abuse, and
other adverse events, not that they be able to hide this information by
making it part of a QAPI record. Another asked that we clarify that
documents and reports used or relied on by QAPI are not confidential
and that non-disclosure applies only to minutes, internal working
papers, or statements of conclusions of QAPI and
[[Page 68806]]
QAA. They further stated that we should clarify that records and
materials submitted to the QAA committee for review are not
confidential solely because they are used or reviewed by the QAA
committee. Others stated that the QAPI plan should be made available to
residents, resident representatives, and staff.
Other commenters objected to our proposed provisions regarding
information disclosure to demonstrate compliance with the QAPI
requirements. One commenter stated that this requirement could be
misconstrued. Several suggested that these requirements could have a
chilling effect on advancing QAPI efforts and should be deleted or
substantially modified. Several commenters felt that the proposed rules
for QAPI would discourage open and honest evaluation of areas of
concern without fear of negative consequences. A number of commenters
were concerned that disclosing quality assurance records to surveyors
would expose providers to increased risk of sanctions and litigation.
One commenter stated that surveyors should not have broad access to
facilities' QAPI data or deliberations. Another commenter stated that
they believe that the proposed regulations exceed the statutory
authority granted to CMS. The commenter stated that we have
significantly expanded upon the statutory mandate by requiring a
``laundry list'' of requirements related to the QAPI program, including
requiring the disclosure of, or potentially requiring a facility
provide access to, a plethora of QAPI-related documents and records.
They further stated that proposed 42 CFR 483.75(a)(4), requiring
facilities to present documentation and evidence of its ongoing QAPI
program's implementation and the facility's compliance with the
requirements to a State Agency, Federal surveyor, or CMS upon request
exceeds the permissibly required disclosures under the statute. One
commenter stated that these provisions are contrary to state law.
Finally, they believed that proposed Sec. 483.75(h) is internally
inconsistent.
Response: We thank those commenters who support our proposal
regarding the need to provide documentation demonstrating compliance
with the QAPI requirements. We have attempted to strike an appropriate
balance between concerns about inappropriate use of QAPI materials and
our obligation to provide effective oversight of Medicare and Medicaid
participating facilities.
We do not agree with commenters who believe that we have exceeded
our authority in establishing these requirements. Under section
1128I(c) of the Act, as added by section 6102 of the ACA, Congress
required the Secretary to establish and implement a quality assurance
and performance improvement program for facilities. The Secretary is
also required to set forth standards for QAPI and provide technical
assistance to develop best practices for facilities to meet those
standards. The expectation that facilities will implement a QAPI
program that meets those standards is clear, and facilities must be
able to demonstrate that they have implemented their QAPI plan and have
an effective, ongoing QAPI program. The standards, the best practices,
and the tools to support facilities as they implement their plan to
meets those standards were developed in the course of the QAPI
demonstration project conducted by CMS. We also consider our
experiences with requiring QAPI programs from other providers such as
community mental health centers (Sec. 485.917), end stage renal
disease facilities (Sec. 494.110), hospitals (Sec. 482.21), hospices
(Sec. 418.58), organ procurement organizations (Sec. 486.348), and
transplant centers (Sec. 482.96) as well as proposed requirements for
home health agencies (79 FR 61164).
QAPI is intended to be one aspect of a LTC facility's operations
that helps to maintain and protect the health and safety of the
residents of the facility. Section 1819(f)(1) of the Act states that it
is the duty and responsibility of the Secretary to assure that
requirements which govern the provision of care in skilled nursing
facilities under Title XVIII, and the enforcement of such requirements,
are adequate to protect the health, safety welfare, and right of
residents and to promote the effective and efficient use of public
moneys. Therefore, we have an obligation to ensure that the QAPI plan
becomes more than a paper exercise. To that end, we proposed
requirements that would demonstrate that a facility has not only
written a plan that meet the established standards, but has actually
implemented that plan. In our proposed requirements, we stated that the
facility must present its QAPI plan at its annual recertification (or
in the case of a new facility, during its initial certification) after
the effective date of this regulation and at every annual survey
thereafter, as well as during other surveys or upon our request. We
included this ongoing requirement because we understand that a QAPI
plan will need to be updated and modified as a facility implements it
and learns from the QAPI program. We proposed that the facility would
have to present documentation and evidence of its ongoing QAPI
implementation to reflect the ongoing nature of the QAPI program.
It is not our intent that a facility lose existing protections for
QAA documents, including those established under state law, nor do we
intend to create a punitive environment or increase litigation. At the
same time, we cannot ignore our obligation to ensure that facilities
implement their QAPI plan, and continue to modify and implement that
plan over time. What we require is satisfactory evidence that a
facility is implementing its QAPI plan and maintaining an ongoing QAPI
program. We further articulated in the proposed rule what sort of
evidence and documentation we believe may be necessary to demonstrate
compliance. We retain the proposed requirement, as required by statute,
that a State or the Secretary may not require disclosure of a QAA
committee's records except insofar as such disclosure is related to the
compliance of such committee with the requirements of the statute.
Clearly, this requirement recognizes that, in some cases, such records
will be necessary to evaluate compliance. However, much information
relating to the implementation of the QAPI plan could be available
outside of the QAA committee's records. Further, we do not believe that
every document, piece of information, or data reviewed or generated in
the course of implementing QAPI is a ``record of the QAA committee.''
We also retain the proposed requirement that ``Good faith attempts
by the committee to identify and correct quality deficiencies will not
be used as a basis for sanction.'' This requirement is not new;
however, it now also includes QAPI activities. As is currently the
case, surveyors are instructed not to cite as a deficiency for a
requirement other than the QAPI requirements a concern that would not
have been identified but for a review of QAPI materials for the purpose
of determining compliance with the QAPI regulations. That said, nothing
in this section would preclude a surveyor from citing a concern that is
identified based on a review of materials or on observations separate
and apart from an assessment of QAPI compliance. Excluding such a
concern simply and only because it has also been identified by the QAPI
program would be irresponsible of CMS. We understand that the ability
to discern when and how a deficiency is identified is of concern to
facilities. We have and will continue to educate surveyors on the
parameters of this provision and the need to not
[[Page 68807]]
inappropriately request or use QAPI documentation.
With regard to concerns about increased litigation, we reiterate
that our purpose is neither to inappropriately make documents public
nor to expose facilities to litigation risk. In fact, section 1106 of
the Act specifically states that, for health programs established by
titles XVIII and XIX, reports (including program validation survey
reports and other formal evaluations of the performance of providers of
services) made public by the Secretary or the State Agency shall not
identify individual patients, individual health care practitioners, or
other individuals. Our obligation to conduct effective oversight is not
waived in the face of litigation fears. We have attempted in these
regulations to establish an appropriate balance between ensuring that
QAPI can be conducted in an open, non-punitive environment and ensuring
that we can provide effective oversight of requirements necessary to
protect the health and safety of LTC facility residents. We have re-
evaluated our proposed language and made some modifications in order to
be less prescriptive and duplicative. In order to address the
commenters concerns about internal consistency and overreach, we have
moved the language regarding the information that may be necessary to
demonstrate compliance to section (a)(1) and eliminated, as potentially
overbroad, proposed paragraph (iii) which stated ``other documentation
considered necessary by a State or Federal surveyor in assessing
compliance.'' We are finalizing as proposed the requirement that
facilities must provide documentation and information that demonstrates
that they are effectively implementing their QAPI plan, on an ongoing
basis, and surveyors must have sufficient information to evaluate if a
facility is in compliance with the requirements of this section.
Comment: One commenter supported our proposed QAPI provisions and
stated that QAPI must be among the services disclosed to residents on
the notice of services. The commenter suggested that there be some
method for a resident to ``trigger'' a QAPI performance improvement
project (PIP).
Response: Our requirements include obtaining and using feedback and
input from staff, residents and resident representatives. While not all
such input would trigger a PIP, it is important that it be included in
the facility's assessment of concerns and priorities.
Comment: One commenter asked if using programs such as Abaqis or
PCC are sufficient to meet the QAPI regulation.
Response: Programs such as PointClickCare and Abaqis may assist
facilities to meet the QAPI requirements, but using them is neither
necessary nor sufficient for compliance. Facilities must evaluate their
use of such tools and ensure that they comply with the QAPI
requirements.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
We have modified paragraph (a)(2) to mirror the statutory
language to indicate that the facility must present its QAPI plan to
the State Survey Agency not later than one year after the date the
regulation is issued.
We have added the term ``information'' in paragraphs
(c)(2) and (f)(4).
In paragraph (e)(3), we have referenced performance
improvement activities in the context of our PIP requirement.
We eliminated the parenthetical examples in paragraph
(d)(2)(i)
We have moved the language in proposed Sec. 483.75(h)(2)
regarding the information that may be necessary to demonstrate
compliance to section (a)(1) and eliminated proposed paragraph (iii)
which stated ``other documentation considered necessary by a State or
Federal surveyor in assessing compliance.''
W. Infection Control (Sec. 483.80)
As part of our overall reorganization of these regulations, we
proposed to re-designate the provisions under existing Sec. 483.65 as
Sec. 483.80. We proposed to modify the introductory language to
include infection prevention as well as control and to clarify that the
program must help prevent the development and transmission of
communicable diseases as well as infections. We proposed to revise
paragraph (a) to read ``Infection prevention and control program''
(IPCP) and add new Sec. 483.80(a)(1), (2) and (3) to specify the
elements of the IPCP. We proposed to require that the program must
follow accepted national standards, be based upon the facility
assessment conducted according to Sec. 483.70(e) and include, at a
minimum, a system for preventing, identifying, reporting,
investigating, and controlling infections and communicable diseases for
all residents, staff, volunteers, visitors, and other individuals
providing services under a contractual arrangement. We proposed to
require the facility to have written standards, policies, and
procedures for the IPCP, including but not limited to, a system of
surveillance designed to identify possible communicable disease or
infections before it can spread to other persons in the facility;
reporting requirements for possible incidents of communicable disease
or infections; standard and transmission-based precautions to be
followed to prevent spread of infections; circumstances in which
generally, isolation should be used for a resident; the circumstances
under which the facility must prohibit employees with a communicable
disease or infected skin lesions from direct contact with residents or
their food, if the contact is likely to transmit the disease; and the
hand hygiene procedures to be followed by all staff as indicated by
accepted professional practice. We also proposed that the facility be
required to train staff related to the IPCP as specified in Sec.
483.95.
We proposed that the facility's IPCP must also include an
antibiotic stewardship program that includes antibiotic use protocols
and systems for monitoring antibiotic use and recording incidents
identified under the facility's IPCP and the corrective actions taken
by the facility.
We further proposed to add a new paragraph (b) to require that the
facility designate an infection prevention and control officer (IPCO)
who is responsible for the IPCP and who has received specialized
training in infection prevention and control. We proposed that the IPCP
be a major responsibility for the individual assigned as the facility's
IPCO. We proposed to require that the IPCO be a healthcare professional
with specialized training in infection prevention and control beyond
their initial professional degree. At Sec. 483.80(c), we proposed to
require that the IPCO be a member of the facility's Quality Assessment
and Assurance (QAA) committee.
We proposed to eliminate the exception that is currently located at
Sec. 483.25(v), which provides that, based on an assessment and
practitioner recommendation, a second pneumococcal immunization could
be given after 5 years following the first pneumococcal immunization,
unless medically contraindicated or the resident or the resident's
legal representative refuses the second immunization.
We proposed to add a new Sec. 483.80(f) to require that the
facility review its IPCP annually and update the program as necessary.
We also proposed to relocate the requirements for influenza and
pneumococcal immunizations from the current Sec. 483.25(n) to Sec.
483.80(d). The language in Sec. 483.80(d) is identical to the current
Sec. 483.25(n), except that
[[Page 68808]]
we proposed using the term ``resident representative'' instead of
``legal representative.'' Finally, we proposed moving the requirement
concerning linens from the current Sec. 483.65(c) to the proposed
Sec. 483.80(e).
Infection Prevention and Control Program (IPCP)
Comment: Many commenters agreed that infection control is very
important for residents in LTC facilities and commended CMS for
proposing to significantly enhance the infection control requirements
given the physical harm and financial cost of HAIs. One commenter said
the proposed measures are an important step forward.
Response: We would like to thank the commenters for their support.
We agree that infection control is very important for residents, as
well the staff and other individuals who work or visit the facility. We
believe the requirements that are finalized in this rule will
contribute to the reduction in HAIs, which should result in a reduction
in physical harm to residents and others, as well as a decrease in the
associated health care costs.
Comment: One commenter expressed a concern that the infection
control efforts could not be effective without adequate numbers of
consistently assigned, well-trained and well-supervised direct care
nursing staff. Nurses and nursing assistants are essential for
infection control prevention, detection and intervention. The commenter
recommended a minimum staffing standard of at least 4.1 hours of direct
care nursing per resident day, 24-hour registered nurse coverage for
the facility, and staffing practices to promote successful infection
prevention.
Response: We agree with the commenter that for the infection
control requirements finalized in this rule to be effective, the
facility would need a sufficient number of trained and supervised
direct care nursing staff. However, we disagree that this final rule
should establish a minimum staffing standard for LTC facilities. In
this final rule, each facility must conduct and document a facility-
wide assessment to determine what resources are necessary to care for
it residents competently during both day-to-day operations and
emergencies (Sec. 483.70(e)). That assessment must include, among
other things, the resident population and the care required by that
population considering the types of diseases, conditions, physical and
cognitive disabilities, overall acuity, and other pertinent facts that
are present in that population, as well as the staff competencies that
are necessary to provide the level and types of care needed by that
population. This assessment must then be used to determine what is the
number of sufficient nursing staff and the competencies and skill sets
the nursing and related staff must have to care for their resident
population (Sec. 483.35). Based on these requirements, as well as the
infection control requirements finalized in this rule, each facility
will need to determine the resources it needs to devote to its
infection control program.
Comment: Commenters recommended that the guidelines from the
Centers for Disease Control and Prevention be inserted into Sec.
483.80(a)(1), so that it reads, ``staffing practices, and following
accepted national standards including, but not limited to guidelines
from the Centers for Disease Control and Prevention; . . .''
Response: We disagree with the commenters. We believe that
facilities need the flexibility to determine which national standard
they are going to follow. We also believe it is appropriate for the
different types of national standards that are acceptable to CMS to be
included in the sub-regulatory guidance for this rule. Although we are
not requiring that LTC facilities follow the CDC guidelines, we agree
with the commenters that the CDC is an excellent resource for
guidelines, as well as other information on infection control, and
encourage LTC facilities to consider the CDC guidelines. For example,
the CDC has a Web site for information on infection control in LTC
facilities, ``New CDC Infection Control Web site for Nursing Homes and
Assisted Living,'' (http://www.leadingage.org/Infection_Control_Website.aspx). Other organizations also have
information available on their Web sites, such as The Society of
Healthcare Epidemiology of America (SHEA) (http://www.shea-online.org/
), Infectious Diseases Society of America (IDSA) (https://www.idsociety.org/Index.aspx), and the Association for Professionals in
Infection Control and Epidemiology (APIC) (http://www.apic.org/).
CDC and CMS are also exploring opportunities to develop and
implement infection prevention and control training specific for LTC
facility clinical personnel. We expect that this would provide training
on a variety of infection control topics relevant for LTC facility
staff developing and sustaining an IPCP. We expect that any training
would be widely available for all providers, surveyors, and other
partners. We are also exploring opportunities for continued education,
dissemination of promising practices, and ensuring that new infection
prevention and control guidance and information for LTC facility staff
can be shared widely. CMS is pleased to be collaborating with CDC on
this type of comprehensive training for providers. CMS has previously
developed specific surveyor training on infection control topics in
2014 and 2015. CMS is also exploring processes for reviewing infection
prevention and control practices in the context of transitions of care.
Please see https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-16-05.pdf for additional information about that pilot.''
Comment: One commenter stated that the detail in the scope and
components in the infection control program went well beyond what is
required in the hospital CoPs. They noted that hospitals are a setting
with much greater risk of infections and individuals at higher risk of
adverse events from infections. They recommended adopting more general
language similar to that used in the hospitals CoPs and specify the
details in interpretive guidance that should be developed in
partnership with stakeholders. They noted that referring to the goal
and purpose of the infection control program along with following
national standards allows the goal and intent to be accomplished. This
affords the providers greater flexibility and creativity in how to
achieve the goals also provides CMS flexibility to provide additional
suggested approaches in interpretative guidance. They also noted that
modifying and updating the guidance as new and better practices are
identified over time is preferable to the long and arduous formal
rulemaking process to update the requirements.
Response: We disagree with the commenters. As we discussed in the
proposed rule, it is estimated that there are between 1.6 and 3.8
million HAIs in LTC facilities annually (80 FR 42215). These infections
result in an estimated 150,000 hospitalizations; 388,000 deaths; and
healthcare costs between $673 million to $2 billion. In addition,
residents may be more susceptible than individuals in other types of
healthcare facilities due to malnutrition, dehydration, comorbidities,
or functional impairments, such as urinary and fecal incontinence, or
medications that diminish immunity or mobility. Also, due to the length
of their stays, there is more opportunity for exposure to infectious
agents from the socialization between residents. This clearly indicates
that infection prevention and control is a critical issue for LTC
facility residents. In addition,
[[Page 68809]]
due to transfers between hospitals and LTC facilities, infection
control in LTC facilities directly affects hospitals as well. The LTC
facility resident with an infection today maybe the patient that the
hospital must treat tomorrow when he or she arrives in the hospital's
ED.
Concerning the level of detail in the infection control
requirements, we disagree with the commenter. Hospitals and LTC
facilities are different types of facilities. LTC facility residents
generally stay much longer than patients in hospitals and generally
require care for chronic conditions instead of acute illnesses,
injuries, or surgeries. In addition, there must be sufficient detail in
the regulatory text so that LTC facilities know what will be needed to
be in compliance with requirements. We believe there is sufficient
detail in the infection control requirements so that LTC facilities and
the public understand what is expected for compliance. We also note
that CMS published a proposed rule on June 16, 2016 entitled,
``Hospital and Critical Access Hospital Changes to Promote Innovation,
Flexibility and Improvement in Patient Care (CMS-3295-P) (81 FR 39448).
These proposed regulations update and add specificity to the infection
prevention and control requirements for hospitals.
Concerning the commenter's recommendation that referring to the
goal and purpose of the infection control program along with following
national standards allows the goal and intent to be accomplished. We do
not believe this is needed in the regulatory text. However, further
direction will be provided in sub-regulatory guidance. Concerning the
use of interpretative guidance, sub-regulatory guidance for this final
rule will be developed and published as soon as possible. That guidance
will contain more specific direction for long-term care facilities,
surveyors, and others concerning compliance with these regulatory
requirements. Thus, we believe that the level of detail in the
infection prevention and control requirements in this final rule are
appropriate and ensure that LTC facilities are aware of what is
required to comply with these requirements.
Comment: One commenter was concerned about the specificity of the
language in the infection control comments. They recommended specific
language changes to remove much of the detail in this section and
suggested using ``should'' instead of ``must'' to allow more
flexibility for both the providers and CMS when legitimate exceptions
are identified or new and better practices are identified.
Response: We disagree with the commenter. While the commenter is
correct that the use of ``should'' would convey more flexibility, that
is not the purpose of these requirements. This final rule contains
requirements for LTC facilities, not suggestions. LTC facilities must
be in compliance with these requirements. In addition, further guidance
will be provided through sub-regulatory guidance. As practices change
in the future, we would appreciate comments from the commenter, as well
as any other individuals, on any recommended changes to these
requirements.
Comment: One commenter supports the efforts to address antibiotic
stewardship; however, they noted that the problem is not isolated to
LTC facilities. For example, hospital emergency departments (EDs) will
usually obtain a urine analysis on residents who are sent to the ED.
Over 50 percent of these tests will show asymptomatic bacteria which
would not meet the Society for Healthcare Epidemiology of America
(SHEA) criteria for giving antibiotics. However, the ED frequently
starts the resident on antibiotics before the resident returns to the
facility. In addition, a State Survey Agency will cite a facility for
an adverse event when the LTC facility does not begin an antibiotic
based upon an asymptomatic urinalysis but the resident later develops
an infection. The commenter noted that this has occurred across the
country over the past several years as providers have attempted to
follow the SHEA criteria. If the proposed requirements are finalized as
proposed, the commenter requested that language be added that indicates
that providers will not be cited if an infection develops when the
provider has followed nationally accepted guidelines for antibiotic
use, such as SHEA. The commenter recommended that the hospital CoPs
also be modified to prevent citation for an adverse event under these
circumstances.
Response: We agree with the commenter that antibiotic stewardship
is not an issue for LTC facilities alone and as noted above, we have
published a proposed rule with requirements for antibiotic stewardship
programs for hospitals (81 FR 39454 through 39459). However, it is
crucial that LTC facilities establish an infection prevention and
control program that contains an antibiotic stewardship program. As we
discussed in the proposed rule, antibiotic resistance has become a
national concern and both the inappropriate and even appropriate use of
antibiotics contribute to this problem (80 FR 42215). In addition, LTC
facilities are part of the overall healthcare system. With the growth
in the short term resident population, more residents with complex
healthcare issues are coming from the hospital into the LTC facility.
Residents with infections in the LTC facility may become patients in
the hospitals ED. In addition, residents also may go to other
healthcare facilities for care, such as ambulatory surgical centers
(ASCs) and dialysis centers. Therefore, the facility's IPCP, and its
antibiotic stewardship program, also affects other facilities and
individuals throughout the healthcare system. Therefore, we are
finalizing the requirement for LTC facilities to establish and maintain
an IPCP, which must include, among other things, an antibiotic
stewardship program that includes antibiotic use protocols and a system
to monitor antibiotic use.
Regarding the commenter's concern about being cited by a surveyor
for following national standards and modification of the hospital CoPs,
we will be working on developing sub-regulatory guidance and training
for the surveyors that should address situations that the commenter
described.
Comment: One commenter expressed concerns about Sec.
483.80(a)(2)(iv), which requires ``(2) [w]ritten standards, policies
and procedures, which must include, but not limited to: . . . (iv)
[w]hen isolation should be used for a resident.'' The commenter said
they had heard directly from residents, families and ombudsmen about
situations where facilities have barred all visitors from accessing
residents for a significant period of time due to the outbreak of
certain infectious viruses among residents and/or facility staff. The
commenter noted that the practice of facilities restricting visitation
as part of an infection control protocol has been regularly reported in
the news. The commenter noted that the current interpretive guidelines
already recognize the potential adverse psychological impact on
residents when instituting any precautions to control outbreaks.
According to the guidelines, ``because of the potential negative impact
that a resident may experience as a result of the implementation of
special precautions, the facility is challenged to promote the
individual resident's rights and well-being while trying to prevent and
control the spread of infections,'' and it is appropriate for
facilities to ``use the least restrictive approach'' to infection
control while adequately protecting the residents and others.'' The
commenter recommended that the language from the interpretive
guidelines be inserted in the rule to strike a balance between
protecting the
[[Page 68810]]
health of the residents and their psychological well-being. They
recommended the following language, ``[t]he facility must isolate
infected residents only to the degree needed to isolate the infecting
organism. The method used must be the least restrictive possible:''
Response: We agree with the commenter that isolation should only be
used when necessary to control the spread of infections and should be
the least restrictive as possible to the resident. The current
interpretative guidelines contain language about using the least
restrictive approach possible that adequately protects both the
resident and others and that maintaining isolation longer than
necessary my adversely affect the resident's psychosocial well-being,
We also agree that there should be more detailed requirements for
isolation in the regulatory text. Thus, in this final rule we have
modified the text of Sec. 483.80(a)(2)(iv) to read: ``When and how
isolation should be used for a resident, including but not limited to,
(A) the type and duration of the isolation depending upon the
infectious agent or organism involved, and (B) that the type and
duration of the isolation should be the least restrictive possible for
the resident under the circumstances.''
Infection Prevention and Control Officer (IPCO)/Infection Preventionist
(IP)
Comment: Some commenters were concerned about the requirement for
an IPCO. They question whether the requirement was even viable,
particularly in areas that already lack adequate numbers of registered
nurses. They indicated that for many locations, particularly rural
areas, individuals with this expertise are simply not available. The
commenter also expressed concern that the requirement was mandating
structure instead of focusing on process expectations, which left
little to no opportunity to accomplish the objectives of infection
prevention and control through means other than those prescribed by the
structure-related regulation.
Response: We disagree with the commenters. We do not believe that
requiring an IPCO is unrealistic. We believe it is necessary to have
one or more individuals responsible for the infection control program
in each facility. However, as discussed below, we have modified this
requirement based upon other comments.
Comment: Some commenters recommended that the requirement for the
IPCO, allow two or more individuals to be responsible for the IPCP.
Another commenter noted that the director of nursing (DoN) is often the
part-time infection prevention and control officer for the facility.
When the DoN is unavailable because he or she is on vacation or busy
with other responsibilities, there is no one to address the infection
prevention and control responsibilities. The commenter recommended that
we not allow the DoN to be the primary IP.
Response: After reviewing the comments, we agree that LTC
facilities should have the flexibility to determine if more than one
individual should be designated to be responsible for the facility's
IPCP. We also believe that LTC facilities should ensure coverage
whenever the designated IP(s) is unavailable. However, we disagree with
the commenter that recommended that we prohibit the DoN from being an
IP. We believe that each facility should have the flexibility to
determine how their facility should comply with the requirements in
this final rule, including which individuals should be designated as
the IP(s). Therefore, we have modified the requirements at proposed
Sec. 483.80(b) to allow for more than one individual to be responsible
for the IPCP and be the designated IP.
Comment: Some commenters argued that the requirement for the IPCO
was inconsistent with our assertion in the proposed rule, ``[w]e
considered prescriptive approaches, such as requiring specific numbers
and types of staff . . .'', but instead decided on a ``competency-based
approach.'' The commenters recommended that a more reasonable approach
that would be to provide detailed standards for the infection control
activities and procedures, and then allow LTC facilities to make the
determination as to whether the individual responsible for this
function possesses the competency and expertise to function effectively
in the role to accomplish the defined processes.
Response: We disagree with the commenters. The language referenced
by the commenters in the proposed rule (80 FR 42175) is located under
our discussion of the facility assessment and competency based approach
taken in the proposed rule and finalized in this rule. It pertains to
the approach we have taken towards staffing. We noted in the proposed
rule that we wanted to ensure that our requirements would ``align with
current clinical practice and allow flexibility to accommodate multiple
care delivery models to meet the needs of the diverse populations that
are provided services in these facilities'' (80 FR 42175). However,
regardless of the facility assessment, each LTC facility must have an
IPCP. As we said in the proposed rule, ``[w]hile all staff should be
responsible for infection prevention and control, we agree with the
SHEA/APIC guidelines that establish that an effective IPCP should have
a designated IPCO for whom implementation and management of the IPCP is
a major responsibility'' (80 FR 42216). As discussed above, we are not
finalizing ``major'' to describe the IP's responsibility due to the
burden it would impose on nursing facilities. However, we continue to
believe that it is essential at least one individual be designated the
IP for each LTC facility. In addition, we have modified this final rule
so that LTC facilities can designate more than one individual as an
ICPO. Thus, requiring that at least one individual be responsible for
the IPCP is consistent with the facility assessment and competency-
based approach in this final rule.
Comment: Commenters disagreed with using the term ``officer'' for
the infection prevention and control officer (IPCO). The commenter said
that officer was ill-defined and its rationale is unclear. The
commenter recommended that the term ``coordinator'' or infection
prevention and control coordinator (IPCC).
Response: We understand that different terms are used to identify
the individual or individuals who are responsible for the facility's
infection control program. For example, in Appendix A-Survey Protocol,
Regulation and Interpretive Guidance for Hospitals, (Rev.151,11-20-15),
it states that the individual(s) ``responsible for the infection
control program may be called a hospital epidemiologists (HEs),''
``infection control professionals (ICPs)'' or ``infection
preventionists (IPs).'' In the Appendix PP-Guidance to Surveyors for
Long Term Care Facilities in the SOM, accessed on January 28, 2016),
the interpretative guidelines refer to an ``infection Preventionist
(IP)'' or an ``infection control professional (ICP)''. Regardless of
the title used by the facility, we are referring to the individual who
is responsible for the facility's IPCP. However, to prevent any
confusion, we have modified this final rule to use the term ``infection
preventionist'' or IP. Therefore, there must be at least one individual
who is responsible for the facility's infection control program.
Comment: Some commenters were concerned about the qualifications
for the ICP. Some commenters asked who would be included in the term
``clinician'' and asked that it be defined. Other commenters were
concerned about the requirement that the IPCO
[[Page 68811]]
(now IP) to have specialized training in infection prevention and
control beyond their initial professional degree. One commenter noted
that APIC provides specialized training in infection prevention and
control and also provides the opportunity for individuals to become
certified. Some were unsure what training would qualify, while others
believed it would difficult for facilities to find qualified staff with
this training or get the training for their staff due to availability
or cost.
Response: We understand that there is a substantial amount of
concern and confusion about the qualifications for the IP. We also
understand that many LTC facilities currently have individuals who are
responsible for infection control who might not qualify under the
proposed requirements, but who have been performing their duties
exceptionally well. These individuals may have obtained their knowledge
through training at the facility or other experience. Thus, we have
modified the requirements to allow for flexibility and for individuals
with a broader range of experience to be a qualified IP. Specifically,
we have removed the term ``clinician'' and instead provide at Sec.
483.80(b) that the IP's primary professional training must be in
nursing, medical technology, microbiology, or epidemiology, or other
related field and that IPs can be qualified by education, training,
experience or certification.
Comment: Commenters supported the requirement for a LTC facility to
designate an IP for whom the IPCP is their major responsibility and who
serves as a member for the facility's QAA committee. However, other
commenters argued that it is unrealistic to specify that the IPCP must
be a ``major responsibility'' for the IP and that this requirement was
unclear. The commenter said that this could easily be interpreted as
0.50 FTE or more. This lack of clarity will lead to confusion and
inconsistencies for providers and surveyors, resulting in technical
misunderstandings that will undermine the intent of the requirement.
One commenter pointed out that the hospital CoPs do not require the
IPCP as a major responsibility of the IP or require the IP to have
specialized training in infection prevention and control. The commenter
recommended that the word ``major'' not be finalized. If the
requirement is finalized, the meanings of ``major responsibility'' and
``specialized training'' should be clarified. However, other commenters
wanted the requirement strengthened by changing ``major'' to
``primary'' responsibility.
Response: Depending upon the facility, we understand that there is
a substantial variation in the amount resources required for the IPCP,
especially the amount of time the IP needs to devote to those
responsibilities. For some facilities, especially small and rural LTC
facilities, it may not be feasible or even necessary to have one staff
person devote a substantial amount of their time to the IPCP or have it
be their primary responsibility. Hence, we have modified the
requirement for the IP by removing the language at Sec. 483.80(b)
indicating the IPCP must be a major responsibility for the IP. However,
we expect that each facility will review their facility assessment they
conducted according to Sec. 483.70(e) to determine the resources it
needs for its IPCP and ensure that those resources are provided for the
IPCP to be effective. In addition, we are finalizing the requirement
that the IP work at the facility at least part-time.
Comment: One commenter questioned whether the reference in proposed
Sec. 483.80(a)(1) to Sec. 483.75(e) should be Sec. 483.70(e).
Response: We would like to thank the commenter for pointing out
this discrepancy in the reference. Yes, the reference should be to
Sec. 483.70(e). We have inserted the correct reference to that section
in this final rule.
Influenza and Pneumococcal Immunizations
Comment: Some commenters disagreed with many of the requirements
related to influenza and pneumococcal immunizations. They noted, among
other things, that no justification had been provided for a different
process for immunizations in LTC facilities as compared to other
healthcare facilities and that it was unclear why these particular
vaccines should have these detailed requirements when other vaccines
may have higher side effects. They also noted that the requirements did
not recognize electronic medical records (EMRs). They noted that
specifying the date ranges is not consistent with good public health
practices and that the level of detail makes it more difficult to
modify or update standards. The commenter recommended that most of the
section be removed and that the facility should be required to develop
policies and procedures to ensure that all residents and employees with
direct patient care contact be offered and receive the influenza
vaccine, unless they decline, per CDC guidance and that all residents
be offered and receive the pneumococcal vaccine, unless they decline,
per CDC guidance. Other commenters expressed concerns about the
recommended dates for immunizations since this may change or vary in
different regions. The commenter saw no valid reason to be so
prescriptive about the exact date range and stated that doing so may
make the regulations obsolete in the future. One commenter agreed with
informing residents and/or their representatives about influenza and
pneumococcal immunizations. However, since it is impossible to identify
or judge whether they were sufficiently ``educated,'' the commenter
recommended that the wording be changed.
Response: We disagree with the commenters. As we explained in the
proposed rule, we reorganized the requirements for influenza and
pneumococcal immunizations for their previous location at Sec.
483.25(n) to where it is now finalized, Sec. 483.80(d). With few
exceptions, it is the identical requirement. We eliminated the
exception that was set out at Sec. 483.25(v), which provided that
based on an assessment and practitioner recommendation, a second
pneumococcal immunization could be given after 5 years following the
first pneumococcal immunization, unless medically contraindicated or
the resident or the resident's legal representative refuses the second
immunization because this was no longer the standard of care (80 FR
42216). We replaced the term ``legal representative'' with ``resident's
representative'' because we believe it is a broader term and
encompasses individuals whom the resident has personally identified as
their representative (80 FR 42216 through 42217). We believe that
reorganizing this requirement to the infection control requirement was
appropriate. According to the CDC, a vaccine is a product that
stimulates the immune system to produce immunity to a specific disease
(Immunization: The Basics, located at http://www.cdc.gov/vaccines/vac-gen/imz-basics.htm, accessed on January 26, 2016). Based upon our
experience with LTC facilities, these immunizations are generally given
by nursing personnel. Therefore, we believe that the infection control
section is the most appropriate place for the requirements related to
influenza and pneumococcal immunizations.
Concerning the other comments on requirements for the pneumonia and
pneumococcal immunizations, we did not propose any changes to these
requirements. Influenza and pneumococcal immunizations are crucial for
the resident populations. Due to the higher morbidity and mortality
rates, we believe it is crucial that these immunizations be offered to
the resident
[[Page 68812]]
population. Thus, we believe it is appropriate to specifically address
these immunizations in these requirements. We also believe that the
details, including dates and documentation, are also necessary to
ensure appropriate immunizations for the residents. Although EHRs are
not specifically addressed in this requirement, we do discuss health IT
in other sections of this final rule. We expect that LTC facilities
that use EHRs will include documentation concerning immunizations in
those EHRs, as LTC facilities that use paper charts are expected to
include the immunization documentation in the paper record. We have
decided to retain the wording about ``education'' in the requirement.
We believe further details concerning this requirement are best
addressed in sub-regulatory guidance, which we will be producing for
this final rule after it is published.
Implementation
Comment: One commenter recommended that LTC facilities be allowed a
minimum of two and up to three years to meet the requirements for a
healthcare professional with additional training to serve as an IP and
that there be a waiver process when the facility can not comply when
due diligence has been followed but such a person is not available.
They also recommend a minimum of two years and up to three years for a
LTC facility to fully develop and implement the IPCP.
Response: We understand that for some facilities, especially the
smaller and rural LTC facilities, coming into compliance with the
infection control requirements in this final rule may require an
extended period of time. We are finalizing a phased in delay of the
implementation date for these requirements. We refer readers to Section
II. B for a detailed discussion regarding the implementation deadline
for these specific requirements.
Costs
Comment: Commenters pointed out that the proposed infection control
requirements, especially those concerning the IP, are unnecessary and
will increase costs.
Response: We agree that coming into compliance with the infection
control requirements in this final rule will require additional
resources for many facilities. However, we have modified the
requirements for the IP, now the infection control professional or ICP,
which we believe will decrease the burden associated with this
provision and address many of the commenters' concerns related to
increased costs.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
We have modified Sec. 483.80(a)(1) by changing the
reference from Sec. 483.75(e) to Sec. 483.70(e).
We have modified Sec. 483.80(a)(2)(iv) by inserting
after, ``[w]hen and how isolation should be used for a resident,'' the
following language, ``including but not limited to, (A) the type and
duration of the isolation depending upon the infectious agent or
organism involved, and a requirement that the isolation should be the
least restrictive possible for the resident under the circumstances.''
We have modified Sec. 483.80(b) to change the infection
prevention and control officer (IPCO) to an infection preventionist
(IP).
We have modified Sec. 483.80(b) to allow LTC facilities
to designate more than one IP.
We have modified Sec. 483.80(b)(1) and (2) to establish
that IPs must have primary professional training in nursing, medical
technology, microbiology, epidemiology, or other related field and can
be qualified by education, training, experience or certification.
We have modified Sec. 483.80(b) by removing the
requirement that the IPCP be a major responsibility for the IP.
X. Compliance and Ethics Program (Sec. 483.85)
As noted previously, section 6102 of the Affordable Care Act
amended the Act by adding new section 1128I. Subsection 1128I(b) of the
Act requires the operating organizations for SNFs and NFs to have in
operation a compliance and ethics program that is effective in
preventing and detecting criminal, civil, and administrative violations
under the Act and in promoting quality of care consistent with
regulations developed by the Secretary. In the proposed rule we
included a robust discussion regarding several industry-specific
guidance documents on compliance issued by the DHHS OIG. In addition,
we also included a detailed discussion regarding a September 23, 2010
proposed rule entitled, ``Medicare, Medicaid, and Children's Health
Insurance Programs; Additional Screening Requirements, Application
Fees, Temporary Enrollment Moratoria, Payment Suspensions and
Compliance Plans for Providers and Suppliers,'' in the Federal Register
(75 FR 58204), to which we received feedback through public comment
regarding compliance program requirements that are required by both
sections 6102 and 6401(a) of the Affordable Care Act. We encourage
readers to review the proposed rule for this background information.
Proposed Sec. 483.85(a) and Sec. 483.85(b)
At Sec. 483.85(a), we proposed to define the terms ``compliance
and ethics program,'' ``high-level personnel'', and ``operating
organization.'' We proposed to define ``compliance and ethics program''
to mean with respect to a facility, a program of the operating
organization that has been reasonably designed, implemented, and
enforced so that it is effective in preventing and detecting criminal,
civil, and administrative violations under the Act, and in promoting
quality of care; and includes, at a minimum, the required components
specified in Sec. 483.85(c). We did not propose using the term
``managing employee'' that is contained in the current LTC facility
requirements, but rather proposed to retain the use of the term ``high-
level personnel'', which is used in the Affordable Care Act. We
proposed to define ``high-level personnel'' as individuals who have
substantial control over the operating organization or who have a
substantial role in the making of policy within the operating
organization. We indicated that the individuals considered ``high-level
personnel'' will differ according to each operating organization's
structure. However, some examples include, but are not limited to, the
following: (1) A director; (2) an executive officer; (3) an individual
in charge of a major business or functional unit; and (4) an individual
with a substantial ownership interest as defined in section 1124(a)(3)
of the Act in the operating organization.
We also proposed to define ``operating organization'' to mean the
individual(s) or entity that operates a facility. Section 1128I(b)(1)
of the Act defines an ``operating organization'' as ``the entity that
operates the facility.'' Although many LTC facilities are part of
corporate chains, there are still some LTC facilities that are owned by
an individual or a small group of individuals. Therefore, we proposed
to add ``individual(s)'' to the definition to make it clear that all
LTC facilities, regardless of their legal structure, are required to
comply with these requirements.
In Sec. 483.85(b), we proposed that the operating organization for
each facility must have in operation a compliance and ethics program
(as defined in Sec. 483.85(a)) that meets the requirements of this
section beginning on the date
[[Page 68813]]
that is one year after the rule's effective date.
Proposed Sec. 483.85(c)
In Sec. 483.85(c), we proposed that the operating organization for
each facility be required to develop, implement, and maintain an
effective compliance and ethics program that contains at a minimum
several components. First, at Sec. 485.85(c)(1) we proposed that the
operating organization must establish written compliance and ethics
standards, policies, and procedures to follow that are reasonably
capable of reducing the prospect of criminal, civil, and administrative
violations under the Act and which include, but are not limited to, the
designation of an appropriate compliance and ethics program contact to
which individuals may report suspected violations, as well as an
alternate method of reporting suspected violations anonymously without
fear of retribution; and disciplinary standards that set out the
consequences for committing violations for the operating organization's
entire staff; individuals providing services under a contractual
arrangement; and volunteers, consistent with the volunteers' expected
roles. Second at Sec. 483.85(c)(2), we proposed that the operating
organization must assign specific individuals within the high-level
personnel of the operating organization with the overall responsibility
to oversee compliance with the operating organization's compliance and
ethics program's standards, policies, and procedures, such as, but not
limited to, the chief executive officer (CEO), members of the board of
directors, or directors of major divisions in the operating
organization (proposed Sec. 483.85(c)(2)). At Sec. 483.85(c)(2), we
proposed that the program must include provisions ensuring that the
specific individuals designated with oversight responsibility in
proposed Sec. 483.85(c)(2) have sufficient resources and authority to
assure compliance with these standards, policies, and procedures.
Next at Sec. 483.85(c)(4), we proposed that the operating
organization is required to use due care not to delegate discretionary
authority to individuals whom the operating organization knew, or
should have known through the exercise of due diligence, had a
propensity to engage in criminal, civil, or administrative violations
under the Act.
We also proposed at Sec. 483.85(c)(5) that the operating
organization be required to effectively communicate the standards,
policies, and procedures in the operating organization's compliance and
ethics program to the operating organization's entire staff including
individuals providing services under a contractual arrangement, and
volunteers, consistent with the volunteers' expected roles.
Requirements include, but are not limited to, mandatory participation
in training or orientation programs, and/or dissemination of
information that explained in a practical manner what was required
under the program.
Next at Sec. 483.85(c)(6), we proposed that the compliance program
must ensure that reasonable steps were being taken to achieve
compliance with the program's standards, policies, and procedures, such
as utilizing monitoring and auditing systems reasonably designed to
detect criminal, civil, and administrative violations under the Act by
any of the operating organization's staff, individuals providing
services under a contractual arrangement, or volunteers, having in
place and publicizing a reporting system whereby any of these
individuals could report violations by others anonymously within the
operating organization without fear of retaliation, and having a
process for ensuring the integrity of any reported data. We also
proposed at Sec. 483.85(c)(6) that the operating organization be
required to enforce consistently the operating organization's
standards, policies, and procedures through appropriate disciplinary
mechanisms, including, as appropriate, discipline of individuals
responsible for the failure to detect and report a violation to the
appropriate party identified in the operating organization's compliance
and ethics program. We proposed that an operating organization is
required to consistently enforce its standards and procedures through
appropriate disciplinary mechanisms.
Lastly, at Sec. 483.85(c)(8) we proposed that after an operating
organization detected a violation, it must ensure that all reasonable
steps identified in its program were taken to respond appropriately to
the violation and, to prevent further similar violations, including any
necessary modification to the operating organization's program to
prevent and detect criminal, civil, and administrative violations under
the Act. We noted in the proposed rule that in sections 1128I(b)(3)(F)
and (G) of the Act, which correspond to Sec. 483.85(c)(7) and (8), the
term ``offense,'' is used instead of ``violation'' and that the
previously described components are mandatory for all of the SNF and NF
operating organizations' compliance and ethics programs.
Proposed Sec. 483.85(d)
At Sec. 483.85(d), we proposed to require operating organizations
that operate five or more facilities to designate a compliance officer,
and require that such individuals be designated as high-level personnel
of the operating organizations with the overall responsibility to
oversee the compliance and ethics program. In addition, the designated
compliance officer must report directly to the governing body for the
operating organization. We also proposed that all operating
organizations designate a compliance and ethics program contact.
In addition at Sec. 483.85(d), we proposed that operating
organizations that operate five or more facilities must also include,
at a minimum, the following components in their compliance and ethics
program:
A mandatory annual training program on the operating
organization's compliance and ethics program (Sec. 483.85(d)(1)).
A designated compliance officer for whom the operating
organization's compliance and ethics program is a major responsibility
(Sec. 483.85(d)(2)).
Designated compliance liaisons located at each of the
operating organization's facilities (Sec. 483.95(d)(3)).
Proposed Sec. 483.85(e)
Lastly, at Sec. 483.85(e), we proposed that the operating
organization for each facility must review its compliance and ethics
program annually, and revise its program, as needed to reflect changes
in all applicable laws or regulations and within its organization and
facilities to improve its performance in deterring, reducing, and
detecting criminal, civil, and administrative violations under the Act
and in promoting quality of care.
General Comments
Comment: Some commenters were very supportive of the proposed
requirements for compliance and ethics programs, especially the
components that are required for all facilities. Some commenters also
appreciated the recognition of the different levels of resources that
were available to smaller and larger operating organizations to
develop, implement, and maintain compliance and ethics programs.
Response: We thank the commenters for their support. We do
recognize that there would be varying levels of resources available to
smaller and larger organizations. Although the requirements for
compliance and ethics programs finalized in this rule go to all
operating organizations. with additional requirements for those with
five or more
[[Page 68814]]
facilities, we would expect that all operating organizations would also
use the facility assessment they developed according to Sec. 483.70(e)
in developing and maintaining their programs. For example, the
operating organization must provide, among other things, sufficient
resources to reasonably assure compliance with the program's standards,
policies, and procedures (Sec. 483.85(c)(3)). In addition, operating
organizations must also take steps to effectively communicate the
standards, policies, and procedures of its program to its entire staff,
individuals providing services under contractual arrangements; and
volunteers, consistent with their expected roles (Sec. 483.85(c)(5)).
This can be accomplished by mandatory training, orientation programs,
or disseminating information that explains in a practical manner what
is required under the operating organization's program (Sec.
483.95(f)). Operating organizations should use the facility assessment
to determine the resources they need to devote to their compliance and
ethics programs to reasonably assure compliance with the requirements
finalized in this rule.
Comment: Some commenters supported the proposed requirements, but
also recommended certain individuals who they believed should be
involved in developing and maintaining the facility's compliance and
ethics program. Some commenters said that professional social workers,
who are guided by the National Association of Social Work (NASW) Code
of Ethics (2008), would be well equipped to contribute to and help to
lead such programs.
Response: We appreciate the commenters support for the proposed
requirements. We also agree that social workers could play an important
role in compliance and ethics programs. However, not all LTC facilities
are required to have a full-time social worker on staff so we cannot
require that a social worker be involved in developing, implementing,
and maintaining these programs. We also believe that each facility
needs the flexibility to determine how it will comply with the
requirements finalized in this final rule, including choosing the
individuals who will be involved in compliance and ethics programs.
Comment: Some commenters noted there were definitions for some
terms used in proposed Sec. 483.85, including ``compliance and ethics
program'', ``high-level personnel'', and ``operating organization'';
however, there was no definition for ``reasonable'' or ``reasonably''.
They also noted that CMS did ask for comments on how to evaluate
``reasonableness'' in the proposed rule (80 FR 42221). The commenters
supported our statement that ``reasonableness'' may depend on the
applicable facts and circumstances. Some commenters also recommended
that the term ``reasonable'' be defined and that we use the Black's Law
Dictionary definition of ``reasonable person'' as it is often used in
other areas of the law, such as, an ordinary person who exercises care
while avoiding extremes of boldness and carefulness.
Response: We do believe that reasonableness depends upon the
applicable facts and circumstances surrounding any particular
situation. As stated in the July 16, 2015 proposed rule (80 FR 42168),
the terms ``reasonable'' and ``reasonably'' were used in the section
6102 of the ACA and consequently used in proposed Sec. 483.85(c)(1),
(6), and (8). We did not propose a definition of these terms in the
proposed rule, but did state that ``[w]e would appreciate comments on
how to evaluate the reasonableness of the design, implementation, and
enforcement of an operating organization's compliance and ethics
program and how to determine the reasonableness of the steps an
operating organization has taken to achieve compliance with its
standards and the steps an operating organization should take in
response to offenses and prevent similar occurrences (80 FR 42221). We
will not be finalizing a definition of ``reasonable'' or ``reasonably''
in this rule. However, we will be publishing further sub-regulatory
guidance on how to determine reasonableness for these requirements''.
Comment: Some commenters were concerned about including contractual
staff and volunteers in some of the requirements. Specifically,
proposed Sec. 483.85(c)(1), (5), and (6) that state that LTC
facilities must establish ``disciplinary standards,'' communicate ``the
standards, policies, procedures . . . includ[ing] . . . mandatory
participation in training or orientation programs and/or dissemination
of information,'' and ``ensure that reasonable steps were being taken
to achieve compliance'' by the facility's staff, and ``individuals
providing services under a contractual arrangement; and volunteers,
consistent with the volunteers' expected roles.'' They argued that it
would not be a good use of the facility's time and resources and that
some LTC facilities could find it burdensome to train and orient
contractor staff and volunteers to their compliance and ethics program.
It should be the contractor that it responsible for training the
contract staff and the LTC facility should only be responsible for
orienting the contract staff to the nuances in their program. In
addition, they argued that training for these individuals could be
inconsistent with the best practices that are currently in place for
LTC facilities, which is to educate contractors or volunteers about the
facility's compliance program, seven core elements of an effective
compliance program, code of conduct, reporting processes (hot line
numbers and other alternative reporting mechanisms) and correction
processes by furnishing written materials to contractors or volunteers
to review and having them attest to reviewing the materials. The
contracting agency should be discussing compliance and ethics matters
with their employees and this is often covered in their contracts with
the LTC facilities. It should be understood that the LTC facility would
be responsible for orienting contractual staff to the individual
nuances of the compliance and ethics program for the facility. The
commenters recommended that LTC facilities not be required to provide
full training and education to volunteers and contractor agency
personnel but that the facilities be required to provide these
individuals with an overview of their programs.
Response: For any operating organization's compliance and ethics
program to be effective, it is crucial that all of the organization's
staff, including those who are providing services under contract, and
volunteers, consistent with their roles, need to understand the
standards, policies and procedures for that program. If these
individuals do not understand the program's requirements and their
responsibilities under that program, they will not be able to comply
appropriately and that will severely reduce, or perhaps eliminate, the
effectiveness of the program. Operating organizations with four or less
facilities ``must effectively communicate'' to the operating
organization's entire staff; individuals providing services under a
contractual arrangement; and volunteers, consistent with their expected
roles. It could be formal training, but they could also comply with
this requirement through dissemination of materials, as the commenters
noted above. For operating organizations with five or more facilities,
annual training is required. However, these requirements do not specify
how the training or dissemination of information is to be performed.
Further, as set forth in Sec. 483.95, it states that ``[a] facility
must determine the amount and types of
[[Page 68815]]
training necessary based on a facility assessment as specified at Sec.
483.70(e).'' We believe that each operating organization needs to have
the flexibility to determine the best way for each of them to comply
with this requirement and this final rule provides them that
flexibility to determine what kind of dissemination of information or
training they need to provide. In addition, it is the training or
dissemination of the information that is crucial. For example, the
operating organization could choose to arrange with the contractor to
have the contractor provide the required training or dissemination of
information for the compliance and ethics program as some commenters
indicated happens today.
Comment: Some commenters recommended that LTC facilities be
required to integrate the information from the compliance program into
the facility's QAPI program. The commenters believed that compliance
must be coordinated into the current ongoing activities so that the
primary focus remains on doing the right thing in the right way
routinely, and on proper clinical reasoning and problem solving, with
regulatory and legal compliance always kept in mind but not as a
separate or predominant activity. They were concerned that an excessive
or separate focus on compliance could potentially result in clinically
questionable activities in the name of ``compliance'' that could be
inconsistent with desirable care approaches.
Response: We agree that the information and data obtained through
the facility's compliance and ethics program should be integrated into
the facility's QAPI program. However, the QAPI requirements finalized
in this rule already provide for this integration. The facility must
design its QAPI program to be ongoing, comprehensive, and to address
the full range of care and services provided by the facility and must
address, among other things, all of the systems of care and management
practices (Sec. 483.75(b)(1)). In addition, each facility must
establish and implement written policies and procedures for feedback,
data collections systems, and monitoring (Sec. 483.75(c)). Also, the
QAA committee must regularly review and analyze data and act on
available data to make improvements (Sec. 483.75(g)((2)(iii)). Thus,
LTC facilities should be integrating the information and data they
collect or arises out of their compliance and ethics programs into
their QAPI program.
The requirements for compliance and ethics and the QAPI programs
should work together or be coordinated to not only ensure compliance
with the requirements in this final rule but also improvements in the
quality of care provided to the residents. Also, we do not believe this
will result in an excessive or separate focus on compliance or result
in negative consequences to the residents, staff, or facility.
Additional Requirements for Operating Organizations With Five or More
Facilities
Comment: Some commenters were concerned that our proposal for
additional requirements for operating organizations with five or more
facilities was imposing additional requirements on certain operating
organizations based upon an arbitrary number of facilities. Some
commenters recommended that only operating organizations with 15 or
more facilities be required to comply with the additional requirements.
Response: We proposed additional requirements for operating
organizations with five or more facilities, because section
1128I(b)(2)(B) of the Act, as added by section 6102 of the ACA (Pub. L.
111-148 (2010), states that ``with respect to specific elements or
formality of a program, in the case of an organization that operates 5
or more facilities, vary with the size of the organization.'' Since the
statutory language specifically indicates that the compliance and
ethics programs for operating organizations with five or more
facilities should be a more formal program or have more elements, we
will be not finalize Sec. 483.85(d) to apply to operating
organizations with 15 or more facilities. Hence, we have finalized that
section so that the additional requirements apply to operating
organizations that have five or more facilities.
Comment: Other commenters were very supportive of the proposed
additional requirements for operating organizations with five or more
facilities as set forth in Sec. 483.85(d): Mandatory annual training
programs on the operating organizations' compliance and ethics programs
that meet the requirements set forth in Sec. 483.95(f); designated
compliance officers for whom their operating organization's compliance
and ethics program is a major responsibility; and designated compliance
liaisons located at each of the operating organization's facilities.''
These commenters recommended that all operating organizations,
regardless of size, be required to comply with these additional
requirements.
Response: We appreciate the commenters support for these additional
requirements. However, in developing requirements, we must balance the
necessity of the requirement for the health and safety of the residents
with the burden of that requirement to the operating organization. We
believe that the additional requirements are necessary for larger
operating organizations to develop and maintain effective compliance
and ethics programs. Larger organizations will generally be caring for
more residents and have more locations for which they are responsible.
We believe this requires that the larger operating organizations have a
compliance officer. Since that compliance officer will be responsible
for the organization's program at five or more facilities, we believe
he or she will need someone at each facility, the compliance liaison,
to assist them with the program at each facility. In addition,
considering the number of facilities, we believe this requires annual
training to ensure that all staff, including those who are providing
services under a contract and volunteers, consistent with their roles,
are knowledgeable about the operating organization's program and how
they are expected to comply with its standards, policies, and
procedures. For operating organizations with four or fewer facilities,
we believe they can develop and maintain a compliance and ethics
program that is effective in preventing and detecting criminal, civil,
and administrative violations under the Act as required by section
1128I(b)(1) of the Act without the additional requirements for larger
operating organizations. However, we would encourage operating
organizations with four or fewer facilities to incorporate these
additional elements if their facility assessments indicate that they
are necessary to ensure that their compliance and ethics programs are
effective. Thus, we will not be extending the addition requirements set
forth in Sec. 483.85(d) to all operating organizations.
Comment: Some commenters were concerned about the requirement for
designated compliance liaisons at each facility for operating
organizations with five or more facilities (Sec. 483.85(d)(3)). They
did not believe it was good policy to appoint someone at each facility
who does not have the critical experience, education, or knowledge of a
compliance officer. It is also not feasible to expect that each
facility could hire someone with the background or expertise to be a
compliance officer in the operating organization's compliance and
ethics program.
Response: Compliance liaisons are not compliance officers. In the
proposed rule, we did not define ``designated compliance liaison'' but
stated that
[[Page 68816]]
``[w]e would expect that operating organizations would develop a
description for these positions and the duties and responsibilities
these individuals would have in the operating organization's compliance
and ethics program . . . [a]t a minimum, these liaisons should be
responsible for assisting the compliance officer with his or her duties
under the operating organization's program at their individual
facilities'' (80 FR 42220). We believe that each operating organization
needs the flexibility to determine what the qualifications, duties, and
responsibilities that these compliance and ethics program liaisons
should have in their organization. Thus, it is the operating
organization with five or more facilities that will develop its own
definition for the position of ``designated compliance liaison'' and
determine the qualifications, duties, and responsibilities for the
individuals in this position.
Comment: Some commenters noted that compliance officers could not
to be subordinate to the general counsel (GC), chief financial officer
(CFO) or chief operating officer (COO) in proposed Sec. 483.85(d)(2).
They were very supportive and noted that in many large organizations
the GC is the compliance officer and is often the best qualified to
address potential legal violations and other areas of concern. In
addition, the commenters noted that in many mid-sized organizations the
GC, CFO, or COO is the compliance officer because the organization
cannot financially support a full-time compliance officer. Some
commenters recommended that we insert a sentence that specifically
indicates that the GC, CFO, or COO may serve as the compliance officer.
Other commenters recommended that the compliance officer also not be
subordinate to the facility's chief executive officer (CEO) or the
administrator.
Response: We agree with the commenters that it is very important
that the compliance officer not be subordinate to certain individuals
in the operating organization. We agree that the compliance officer
should also not be subordinate to an administrator; however, we believe
that the compliance officer would be within the operating
organization's staff and not located at an individual facility to avoid
any interference or influence of the compliance officer by an
administer. We do not agree that the compliance officer could not be
subordinate to the CEO, who is generally the highest ranking officer in
an operating organization. For these reasons, we did not propose that
the compliance officer could not be subordinate to the CEO or an
administrator. The compliance officer must be able to communicate with
the governing body without being subject to any coercion or
intimidation. This is why we proposed Sec. 483.85(d)(2) that states
that the compliance officer must be able to report directly to the
governing body. Thus, we have finalized Sec. 483.85(d)(2) as proposed.
We believe any further detail on who can and cannot serve as the
compliance officer should be provided in the sub-regulatory guidance
for this requirement. We refer facilities to additional guidance the
OIG has published for nursing home compliance programs, ``OIG
Supplemental Compliance Program Guidance for Nursing Facilities'' (73
Fr 56832) (https://oig.hhs.gov/compliance/compliance-guidance/docs/complianceguidance/nhg_fr.pdf).
Implementation and Costs
Comment: Some commenters were concerned about the 1-year timeframe
for implementation of the compliance and ethics programs. Commenters
wanted at least 2 years for LTC facilities to develop their compliance
and ethics programs. They based the 2 years on both the statutory
language in ACA that stated that the Secretary had 2 years to
promulgate regulations for compliance and ethics programs and to allow
adequate time to change and adjust current compliance and ethics
programs allow adequate time to change and adjust current processes and
procedures and to reconfigure facility budgets.
Response: We appreciate the commenters' concerns about the
implementation of the requirements for compliance and ethics programs.
We are finalizing a phased in delay of the implementation dates for
this final rule. We refer readers to Section II.B. for a detailed
discussion regarding the implementation deadlines for these
requirements. The estimated costs for complying with these requirements
are discussed in sections V. Collection of Information Requirements and
VI. Regulatory Impact Analysis (RIA).
Comment: Some commenters believed that the requirements for the
compliance and ethics program were unduly prescriptive and costly and
could impose an unnecessarily onerous burden on some LTC facilities.
However, some of these commenters also indicated that a major
organization for long-term care facilities had already been educating
its membership on the requirements in ACA for compliance and ethics
program in LTC facilities and had educational tools on its Web site.
Response: Section 6102 of the ACA mandated compliance and ethics
programs in LTC facilities. Hence, these are not discretionary
requirements. In developing these regulations, we have established the
requirements contained in the ACA and have been mindful of the burden
which will be required to comply with these requirements. In finalizing
these requirements, we strived to avoid not only any unnecessary burden
but also to provide maximum flexibility for operating organizations to
comply with the requirements established in ACA.
Surveys
Comment: Some commenters were concerned about how the LTC
facilities would be surveyed for the compliance and ethics program
requirements. Some commenters wanted a tangible observational process
established for the surveyors, which would validate that facilities are
providing compliance and ethics policies and procedures to the staff
and that governing bodies are implementing those policies and
procedures.
Response: We understand that commenters have concerns about how
surveyors would determine compliance with these requirements. As
discussed above, we will be developing and publishing or disseminating
sub-regulatory guidance, including interpretative guidelines (IGs),
before surveyors begin to survey LTC facilities for these requirements.
That guidance will provide the detailed information surveyors need to
determine compliance with these requirements.
After consideration of the comments we received on the proposed
rule, we are finalizing the requirements as proposed.
Y. Physical Environment (Sec. 483.90)
In the proposed rule we indicated that the facility must be
designed, constructed, equipped, and maintained to protect the health
and safety of residents, personnel and the public. Many of these
provisions relate to Life Safety Code (LSC) requirements. We recently
published a final rule which adopts many provisions of the 2012 LSC
``Medicare and Medicaid Programs; Fire Safety Requirements for Certain
Health Care Facilities,'' (81 FR 26871, May 4, 2016). As part of our
comprehensive review and restructuring, we re-designate the existing
provisions of Sec. 483.70 as new Sec. 483.90; however, the language
in existing Sec. 483.70(a) ``Life safety from fire'' and Sec.
483.70(b) ``Emergency power'' are unchanged, including new provisions
related to the requirement that long term care
[[Page 68817]]
facilities have automatic sprinkler systems added by the final rule
``Medicare and Medicaid Programs; Regulatory Provisions to Promote
Program Efficiency, Transparency, and Burden Reduction, Part II''
published in the Federal Register on May 12, 2014 (79 FR 27106).
In Sec. 483.90(c) ``Space and equipment'', we proposed to add the
resident's individual assessment, including preferences and choices, as
an element to consider in addition to the resident's plan of care when
considering the space and equipment requirements of the facility. We
proposed to eliminate the word ``essential'' from Sec. 483.90(c)(2)
(re-designated from Sec. 483.70(c)(2)). In addition, we proposed to
add a new Sec. 483.90(c)(3) to specifically require that facilities
conduct regular inspections of all bed frames, mattresses, and bed
rails and to ensure that bed rails are compatible with the bed frame
and mattress.
Currently, in existing Sec. 483.70(d), the regulations allow for
bedrooms that accommodate up to four residents. We proposed to require
at Sec. 483.90(d)(1)(i) that bedrooms in facilities accommodate not
more than two residents unless the facility is currently certified to
participate in Medicare and/or Medicaid or has received approval of
construction or reconstruction plans by state and local authorities
prior to the effective date of this regulation. We indicated in the
proposed rule that reconstruction means that the facility undergoes
reconfiguration of the space such that the space is not permitted to be
occupied, or the entire building or an entire occupancy within the
building, such as a wing of the building, is modified. We also proposed
to require that the bed size and height be not only convenient for the
resident's needs, but also safe.
Section 483.70(e) currently requires that each bedroom be equipped
with or located near toilet and bathing facilities. We proposed at
Sec. 483.90(e) to add the requirement that, for facilities that
receive approval of construction or reconstruction plans by state and
local authorities or are newly certified to participate in Medicare
and/or Medicaid after the effective date of this rule, each resident
room must have its own bathroom equipped with at least a toilet, sink
and shower. In addition, we proposed that if a facility undergoes
reconstruction, each resident room in the reconstructed space must have
its own bathroom equipped with at least a toilet, sink and shower. We
indicated in the proposed rule that reconstruction means that the
facility undergoes reconfiguration of the space such that the space is
not permitted to be occupied, or the entire building or an entire
occupancy within the building, such as a wing of the building, is
modified.
At Sec. 483.90(f) (proposed to be re-designated from Sec.
483.70(f)), a resident call system is required. We proposed to revise
this revision and require that the facility must be adequately equipped
to allow residents to call for staff assistance through a communication
system which relays the call directly to a staff member or to a
centralized staff work area from the resident's bedside, toilet and
bathing facilities.
At Sec. 483.90(g) (proposed to be re-designated from Sec.
483.70(g)) we address dining and activity rooms and include a
requirement to designate non-smoking areas. We proposed to eliminate
the language ``with non-smoking areas identified''.
We also proposed to add a new paragraph at Sec. 483.90(h)(5) to
require facilities to establish policies, in accordance with applicable
federal, state and local laws and regulations, regarding smoking,
including tobacco cessation, smoking areas and safety, including but
not limited to non-smoking residents.
Comment: One commenter asked that we adopt the 2012 Life Safety
Code.
Response: This concern has been addressed through separate rule-
making. As noted above, we published the final rule, ``Medicare and
Medicaid Programs; Fire Safety Requirements for Certain Health Care
Facilities,'' which would adopt many provisions of the 2012 LSC on May
4, 2016 (81 FR 26871).
Comment: Some commenters recommended that CMS consider adopting the
``Guidelines for Design and Construction of Residential Health Care and
Support Facilities,'' produced by the Facilities Guidelines Institute,
in addition to and in the same manner as we currently adopt the Life
Safety Code.
Response: We thank the commenters for their suggestion. We will
evaluate this suggestion further and consider it for future rulemaking.
Comment: Some commenters disagreed with our proposed requirement
regarding bed rails. One stated that their facility already had a
process in place and this would require an additional inspection that
would take away from their ability to complete other maintenance tasks.
Another stated that our requirements were inadequate given the risks
posed by bed rails, citing concerns about the availability of
manufacturer information and guidance. One commenter recommended
strengthening our requirements including adding additional detailed
requirements, especially to safeguard against entrapment.
Response: We agree that resident safety in important when
considering the use of bed rails. However, detailed guidance regarding
the use of bed rails is more appropriate in interpretive guidance. As
noted in the proposed rule, additional resources are available at
http://www.fda.gov/MedicalDevices/ProductsandMedicalProcedures/GeneralHospitalDevicesandSupplies/HospitalBeds/default.htm. If a
facility already conducts regular inspections of all bed frames,
mattresses, and bed rails, no new process would be required as long as
the requirements at Sec. 483.25(n) and Sec. 483.90(c) were met. If a
facility was unable to identify a manufacturer and access manufacturer
information and guidance for bed rails that they used, they would not
be meeting requirements to follow the manufacturers' recommendations
and specifications for installing and maintaining bed rails set forth
in Sec. 483.25(n)(4).
Comment: Several commenters supported our proposal to limit the
number of residents in a room to two. Many suggested that the
requirements do not go far enough. Several suggested that this
requirement should apply to all facilities, not just newly constructed,
certified, or renovated. Others suggested that private rooms should be
the standard, with a few double rooms to accommodate couples or those
desiring a roommate. A few commenters objected to the requirement. Some
commenters stated that this requirement was burdensome and would
discourage new construction and renovation. Some commenters felt that
this requirement should apply to new construction only and were
concerned about the definition of reconstruction. One commenter stated
that their facility had large rooms and putting an occupancy limit on
all rooms regardless of considering the size of the rooms would be
unreasonable.
Response: We have taken into account all of the comments received,
both supportive comments and those pointing out concerns with our
proposal to limit room occupancy only in newly constructed,
reconstructed, or newly certified facilities and considered multiple
alternatives. We believe that semi-private rooms are far more
supportive of privacy and dignity. We recognize that for many
residents, a private room would be ideal. However, for others, a spouse
or other roommate is desirable. We note that many states have physical
environment requirements that exceed our requirements. These
requirements vary widely, but many states include a
[[Page 68818]]
requirement for no more than two beds per resident room or establish a
minimum percentage of rooms that must be private or semi-private.
Individual facilities can choose to offer private rooms as well.
However, as these regulations apply to every Medicare- and Medicaid-
certified facility, we must also consider the potential for our
requirements to discourage innovation, new construction, or
reconstruction and to negatively impact access to care. Therefore, at
this time, we believe our proposal represents an appropriate balance
among the concerns voiced and we are finalizing this requirement as
proposed. With regard to the definition of reconstruction, we have
stated that this means that the facility undergoes reconfiguration of
the space such that the space is not permitted to be occupied, or the
entire building or an entire occupancy within the building, such as a
wing of the building, is modified. We would clarify that, for
reconstruction, the requirement applies to the reconstructed area, so
that where reconstruction involves a limited area within a building, we
would not expect the entire building to upgrade to the new
requirements. This should not deter facilities from making needed
renovations. We defer additional discussion to sub-regulatory guidance.
Comment: One commenter noted that residents benefit from being
outdoors, not just in the facility. The commenter suggested that CMS
should establish goals that help pave the way to more universal
standards for facilities that are person-centered in all aspect,
including physical environment that recognizes the needs of residents
for privacy, dignity and personal choice and included should look to
models such as Green House[supreg] to ``borrow'' as appropriate.
Another commenter recommended that we include a requirement that the
facility provide sufficient outdoor space that is accessible to
residents and where residents can sit and move around as independently
as possible.
Response: We thank the commenter for their suggestions. We agree
that some residents may benefit from access to outdoor spaces. Such
access, of course, must be balanced with safety and supervision
concerns, which may vary significantly across resident populations. In
addition, such requirements would need to be equally applicable to all
long-term care facilities, whether urban, suburban, or rural, or small,
medium, and large. We are aware of the Green House[supreg] and other
models and will continue to evaluate these models and new innovations,
including requirements for outdoor space, and consider their
application in future rule-making.
Comment: A couple of commenters asked that we consider using terms
other than ``toilet facilities'' or other terms that reflect an
institutional mindset.
Response: We appreciate the comment and have modified language at
Sec. 483.90(e).
Comment: Several commenters objected to our proposal to include a
shower, in addition to a toilet and sink, in rooms that are renovated,
or newly constructed or certified after the effective date of the final
regulation. A number of commenters suggested that not only would such
showers be under-utilized, they would present a safety hazard. Some
commenters raised, in particular, safety concerns related to residents
with dementia having unsupervised access to a shower. One referred to a
shower as ``costly, wasted space'' and another stated that ``it has
been our experience . . . that current showers in private rooms go
unused.'' Some commenters suggested this requirement should not apply
to facilities being renovated, as this would discourage needed upgrades
to facilities. A commenter suggested that building configuration and
existing spaces would not be conducive to adding showers, given other
square footage and code requirements applicable to resident spaces.
Further, showers in these rooms would need to be of substantial size to
accommodate specialized equipment when necessary, resulting in reduced
living space for the resident. Some commenters suggested that
construction costs may make this prohibitive for many companies to
build new facilities, resulting in reduced construction at a time when
additional facilities may be needed due to demographic factors or that
such costs would create a disincentive to update and modernize resident
rooms. Other commenters supported the inclusion of a shower for each
resident room, stating that this would eliminate residents needing to
go down the hall to a common bathing room. Another suggested that
portable showers could serve the intended purpose but avoid some of the
concerns that have been raised.
Response: We have taken into account all of the comments received,
both supportive comments and those pointing out concerns with our
proposal. We considered suggestions to require facilities to install
safety features or special monitoring in bathrooms. We acknowledge
concerns about safety as well as the disincentive for facility upgrades
that our proposal could create, particularly in light of space
requirements for a safe, effective shower. Given these concerns, at
this time, we have decided to modify the proposed requirement at Sec.
483.90(e) to require that resident rooms have a toilet and sink in
facilities that receive approval of construction plans by state and
local authorities or are newly certified to participate in Medicare
and/or Medicaid after the effective date of this rule. Facilities
continue to have the option to exceed our requirements, in keeping with
the health, safety and quality of life of its residents.
Comment: Several commenters supported our proposal to require that
each resident room must have its own commode and sink. Some commenters
objected to our requirement that each room must have its own commode
and sink. Several commenters stated that existing facilities are likely
not to have adequate space to accommodate this requirement and believed
that this would prevent facilities for undertaking renovations. One
commenter asked if a bathroom shared between two resident rooms would
be permissible.
Response: Our requirement states that each resident room must have
its own bathroom. A shared bathroom would not meet this requirement. We
have considered commenters concerns about cost and the lack of
available space to add additional bathrooms deterring upgrades to
existing facilities and have revised this requirement to apply only to
facilities that receive approval of construction from State and local
authorities or are newly certified after the effective date of this
rule. Furthermore, we believe removing the requirement for each
bathroom to include a shower substantially reduces the burden, both
financial and in terms of space, that this requirement imposes on
facilities subject to the heightened requirement.
Comment: One commenter asked that it be made clear that ``newly
certified'' does not include facilities where there has been a change
of ownership. Other commenters echoed similar concerns about
certification after change of ownership.
Response: When facilities change ownership, the new owners have the
option of accepting the existing provider agreement. In this case, the
facility would not be ``newly certified.'' However, when a new owner
does not accept the existing provider agreement, the facility does
require a ``new certification'' and these requirements would apply. We
considered explicitly exempting all changes of ownership from this
requirement, however, there is the potential for significant abuse of
[[Page 68819]]
such an exemption and we believe that to do so is not appropriate.
Comment: One commenter objected to our inclusion of smoking
cessation in proposed paragraph (h)(5). The commenter stated that while
smoking cessation is a noble cause, it should not be required in every
center's policies, particularly if a facility has adopted a policy for
non-smoking. They further stated that smoking cessation programs are
appropriate for some facilities but not for all. Finally, the commenter
stated that the requirement, as written, was confusing and should also
reference electronic cigarettes. Another commenter stated that smoking
should not be considered a resident right and that accommodating
smoking takes CNAs away from caring for residents.
Response: We appreciate the commenter's thoughtful suggestions. We
have revised the provision to remove the reference to smoking
cessation, and improve clarity. We did not at this time add electronic
cigarettes, but will evaluate whether or not electronic cigarettes
should be included in this provision in the future. We agree that a
smoking cessation program may not be appropriate for some facilities,
such as those facilities that are ``smoke-free.'' However, even
``smoke-free'' facilities may admit residents who smoke. Smoking
cessation support should be offered to residents who smoke and
addressed in their person centered plan of care. Smoking is not
addressed as a resident right; rather, we require that facilities have
policies and procedures to safeguard residents, whether smoking or non-
smoking, if and where smoking occurs.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
We have modified our proposal at Sec. 483.90(e) to
require that, for facilities that receive approval of construction or
are newly certified after the effective date of this final rule, each
resident room must have its own bathroom with at least a commode and a
sink.
We have modified our proposal at Sec. 483.90(h)(5) to
state that facilities must establish policies in accordance with
applicable Federal, State, and local laws and regulations regarding
smoking, smoking areas, and smoking safety that also take into account
non-smoking residents.
Z. Training Requirements (Sec. 483.95)
We proposed to add a new Sec. 483.95 to subpart B which sets forth
training requirements. We proposed that a facility must develop,
implement, and maintain an effective training program for all new and
existing staff; individuals providing services under a contractual
arrangement; and volunteers, consistent with their expected roles. We
also proposed that a facility be required to determine the amount and
types of training necessary based on a facility assessment as specified
at Sec. 483.70(e).
We proposed at Sec. 483.95(a) to include effective communications
as a required training topic for direct care personnel. We did not
propose to require a specific amount of time, specific communications
topics, or specific training mechanisms to meet this requirement. We
proposed at Sec. 483.95(b) to require that facilities train staff
members on the rights of the resident and the responsibilities of a LTC
facility to properly care for its residents as set forth at Sec.
483.10 and Sec. 483.11, respectively. At Sec. 483.95(c) we proposed
to require that a facility provide training to its staff on the freedom
from abuse, neglect, and exploitation requirements found in Sec.
483.12. We proposed to specify that facilities must provide training to
their staff that at a minimum educates staff on activities that
constitute abuse, neglect, exploitation, and misappropriation of
resident property and procedures for reporting incidents of abuse,
neglect, exploitation, or the misappropriation of resident property.
At Sec. 485.95(d), we proposed to require that a facility must
provide mandatory QAPI training to its staff that outline the elements
and goals of the facility's QAPI program. At Sec. 483.95(e) we
proposed to require LTC facilities to include staff training as part of
their efforts to prevent and control infection. It would be the
facility's responsibility to ensure that their staff was effectively
educated on the facility's infection control policies and procedures.
At Sec. 483.95(f)(1), we proposed that the operating organization
for each facility must include as part of their compliance and ethics
program training for staff that outlines the standards, policies, and
procedures. We did not specify how a facility should develop this
training; however we indicated in the proposed rule that the training
must explain in a practical manner the requirements under the
compliance and ethics program. In addition, at Sec. 483.95(f)(2) we
proposed to require that if the operating organization operates five or
more facilities, it must include mandatory training annually.
Section 6121 of the Affordable Care Act added sections
1819(f)(2)(A)(i)(1) and 1919(f)(2)(A)(i)(1) of the Act. These sections
require all NAs to receive on-going training in both dementia
management and patient abuse prevention training, ``if the Secretary
determines appropriate.'' We proposed to amend the LTC requirements by
requiring that the current mandatory on-going training requirements for
NAs include dementia management and resident abuse training.
We also proposed to relocate the training requirements for NAs at
Sec. 483.75(e)(8) to Sec. 483.95(g). Specifically, we proposed to re-
designate existing Sec. 483.75(e)(8)(i), (ii), and (iii) to Sec.
483.95(g)(1), (3), and (4), respectively. At Sec. 483.95(g)(2), we
proposed to add the new requirement that the 12 hours of annual in-
service training for NAs must include dementia management and abuse
prevention training. Also, at Sec. 483.95(g)(3), we proposed to add to
the existing requirement that the in-service training address areas of
weakness as determined by a facility's assessment at Sec. 483.70(e).
In addition, current regulations at Sec. 483.75(q) require facilities
to only employ as a paid feeding assistant those individuals who have
successfully completed a state approved training program, as specified
in Sec. 483.160. We proposed to relocate this provision without change
to proposed Sec. 483.95(h).
Lastly, we proposed at Sec. 483.95(i) to require that facilities
provide behavioral health training to its entire staff, based on the
facility assessment at Sec. 483.70(e). As required at Sec. 483.70(e),
we proposed that the facility be responsible for using their facility
assessment to determine the behavioral health related needs of their
residents. Then the facility must ensure that their staff is provided
with behavioral health training that correlates with the needs of their
residents.
Comment: Many commenters applauded the addition of the training
section and the inclusion of the various required topics of training.
Commenters noted that all trainings should be conducted in an
environment that encourages participation and open discussion with the
freedom to ask questions.
Response: We appreciate the feedback from commenters. We believe
that requiring facilities to develop, implement, and maintain an
effective training program for staff will help to prepare staff and
improve outcomes. In addition, we believe that appropriately training
staff can improve resident safety, create a more person-centered
environment, and reduce the number of adverse events or other resident
complications. We agree that training activities should encourage
participation and allow for open dialogue among participants in order
to
[[Page 68820]]
be productive. We encourage facilities to allow for this type of
interaction and anticipate that the interpretive guidance to this
regulation will further provide ideas and best practices for how to
implement these training requirements.
Comment: While commenters supported the training topics named in
the proposed rule, many commenters provided suggestions for additional
topics to be required for all facility staff members who provide
services directly to residents. Suggested topics included advance care
planning, cultural competence, end-of-life care, geriatrics and
gerontology, working with young and middle-aged adults, grief and loss,
interdisciplinary collaboration, person-centered care, specialized
rehabilitative therapy, and intellectual disability. In addition, one
commenter recommended that the training section be expanded to require
training on additional CMS requirements, such as resident choice and
quality of life and care. One commenter indicated that staff should be
educated on the aging process and have an understanding of how human
beings change as they grow older.
Response: We appreciate the feedback from commenters. Given the
volume of the proposed requirements and the concerns raised by
commenters regarding the time needed to implement all of the
requirements, we believe it would be overly burdensome to increase the
number of required training topics at this time. We will continue to
evaluate each of the suggested topics raised by commenters and consider
them for future rulemaking. In addition, we note that while the
regulations require specific training topics, facilities have the
flexibility to add more topics to their training programs, in
accordance with their facility assessments.
Comment: A couple of commenters recommended that the requirement
for communication training specifically address the content that should
be discussed in the training. One of the commenters recommended that
the content specifically address individuals with dementia, individuals
who are non-verbal, and individuals with hearing and/or vision
impairments. Another commenter indicated that the requirement for
communication training should specify the number of hours required for
the training. One commenter indicated that the regulations should
specifically require staff to pass exams as part of their training
program.
Response: We appreciate the recommendations from commenters, but
ultimately we recognize that training needs are likely to change over
time. We believe that it is necessary for facilities to have the
flexibility to determine, based on its internal facility assessment and
competencies and skill sets needed for employees, how to structure
training to meet its specific needs. To ensure that the training
provided is facility specific and most beneficial to the residents
receiving care in the facility, we believe that it is best not to limit
the training requirements to too many specifics. We expect that the
surveyor guidance associated with this final rule will provide
facilities with additional guidance for how to meet these requirements.
In addition we encourage readers to refer to the proposed rule
discussion (80 FR 42222) for resources available for providing
effective communication training including the Agency for Healthcare
Research and Quality's (AHRQ) Team STEPPS Long Term Care communication
training for front line staff in LTC facilities (http://www.ahrq.gov/qual/ptsafetyltc/index.html).
Comment: Many commenters recommended that caring for residents with
dementia should be highlighted as a training topic for all nurse
staffing personnel, not just nurse aides. Commenters noted that there
are an overwhelming number of individuals with a diagnosis of
Alzheimer's or another dementia-related illness in LTC facilities and
the use of interdisciplinary teams to deliver care is on the rise. One
commenter indicated that simple ideas such as sensory stimulation be
used for communicating with an individual who has dementia and that
this type of care does not need to be the province of just one type of
staff who is caring for the individual. Another commenter noted the CMS
``Hand in Hand'' curriculum (http://www.cms-handinhandtoolkit.info/) as
an excellent resource and highlighted a report developed by the
Dementia Action Alliance entitled, ``Living Fully with Dementia: Words
Matter'' (http://daanow.org/living-fully-with-dementia-words-matter/)
as an additional resource for interested parties.
Response: Given the encouragement from commenters to extend
dementia management training beyond just NAs, we have revised our
proposal in this final rule. We agree that expanding the requirement
for dementia management training to all staff will only further improve
the care that is provided. Therefore, at Sec. 483.95(c) we are adding
a provision to require that all new and existing staff, individuals
providing services under a contractual arrangement, and volunteers
receive dementia management and abuse prevention training, consistent
with their roles in the facility. We are not proposing that facilities
develop a separate training from that required for nurse aides and
given that the dementia management training will already be developed,
it will not be overly burdensome for facilities to expand the training
to all staff. In addition, we encourage facilities to utilize the free
training materials available to facilities, such as the CMS ``Hand in
Hand'' curriculum as well as the additional resources highlighted by
commenters.
Comment: One commenter recommended that the term dementia
management be replaced with ``appropriate care of residents living with
dementia'' to be more person-centered.
Response: We appreciate the recommendation; however, dementia
management is the language used in the Affordable Care Act and at this
time we are using the same term for consistency.
Comment: One commenter indicated that all or part of the abuse,
neglect, and exploitation training should be performed by an individual
or agency that is not associated with the LTC facility.
Response: The regulations do not specify that a member of the
facility has to conduct the training activities and facilities have the
flexibility to work with outside entities to provide the training. We
encourage facilities to leverage any resources available to assist with
developing and implementing their training program.
Comment: One commenter recommended that all staff be required to
receive an orientation to the LTC facility within their first two weeks
of employment that includes training in at least residents' rights,
aging, dementia, abuse reporting requirements, emergency procedures,
and the policies of the LTC facility.
Response: We agree that new staff members should also receive
training and have specified at Sec. 483.95 that training must be
provided to both new and existing staff. As discussed in a previous
comment, we believe it would be burdensome to require additional
training topics at this time.
Comment: One commenter recommended that all staff be required to be
certified as nursing assistants. The commenter indicated that all staff
should be able to assist residents with all activities of daily living
without having to wait for a CNA.
Response: We agree that all staff should be able to assist
residents with activities of daily living. However, we do not believe
that having this capability is dependent on being a nursing assistant
and therefore do not believe that it is necessary to require all
[[Page 68821]]
staff to be certified as nursing assistants. Instead we believe that
facilities should assess their resident population including, among
other things, the care required by the resident population considering
the overall acuity that are present within the population. We proposed
at Sec. 483.70(e) to require facilities to conduct an annual facility
assessment that addresses the staff competencies that are necessary to
provide the level and types of care needed for the resident population.
We believe that facilities will be able to use this information to
appropriately staff their facilities and provide residents with the
care and attention that they need.
Comment: One commenter recommended that those facilities with
residents diagnosed with dementia should be required to conduct an
annual assessment of all direct care staff that includes observation,
to ensure that staff are providing adequate dementia care and abuse
prevention. The commenter recommends further that for those staff
members who exhibit caregiver stress, the facility should be required
to have a plan in place to identify and support these individuals.
Response: The in-service training requirement for nurse aides
specifies that the training must be no less than 12 hours per year.
Therefore, following the implementation of this final rule nurse aides
who provide direct care to residents will be re-trained in dementia
management, as proposed at Sec. 483.95(g)(2), at least annually. In
addition, we note that in response to comments in this final rule we
are expanding the requirement for dementia management and abuse
prevention training to all direct care staff. As discussed previously,
by direct care staff we are referring to those individuals who, through
interpersonal contact with residents or resident care management,
provide care and services to allow residents to attain or maintain the
highest practicable physical, mental, and psychosocial well-being.
While we appreciate that recommendation to provide staff members with
support for caregiver stress, we believe that it would be overly
burdensome to place this additional responsibility on facilities. We
encourage those facilities that are capable to consider developing some
type of employee assistance program that can be utilized by those staff
members that may be exhibiting caregiver stress.
Comment: One commenter disliked the use of the phrase ``dementia
management'' and suggested the use of the phrase ``dementia care''
indicating that this phrase is more person-centered.
Response: We appreciate the commenter's feedback, however dementia
management is the phrase used in the statute and at this time we are
aligning the terminology in our regulation with that of the statute for
consistency.
Comment: A few commenters recommended increasing the number of on-
going in-service training hours for nurse aides. Commenters provided
various recommendations for the number of hours increased from 12 to 24
hours. Another commenter recommended that CMS evaluate the current in-
service training provided to nurse aides in order to determine a
minimum requirement for hours to enhance the continued competency of
staff.
Response: We appreciate the feedback from commenters and agree that
additional consideration should be given to increasing the number of
in-service training hours required for nurse aides. We will continue to
review the commenters and as recommended by commenters, review the
current in-service training for nurse aides in order to determine a
minimum number of training hours that will help to enhance the
continued competency of staff.
Comment: One commenter recommended that the in-service training for
nurse aides be expanded to include training in end-of-life care,
teamwork, and problem solving. Another commenter recommended that nurse
aides should also be trained to recognize situations where licensed
nursing staff are needed and how to initiate immediate contact with
them.
Response: We appreciate the feedback from commenters and believe
that their concerns are already covered in the regulations. We proposed
at Sec. 483.95(a) to include effective communications as a required
training topic for direct care personnel, which includes NAs. We
believe that effective communication is important for reducing
unnecessary hospitalizations as well as for improving a resident's
overall quality of life and quality of care.
Comment: One commenter questioned whether employees of the LTC
facility must develop the training materials. The commenter indicated
that many facilities use consultants or contractors to develop
training. In addition, a commenter indicated that the proposed rule did
not clearly define the type of training that volunteers should receive.
Also, the commenter indicated that the requirement for facilities to
train all individuals under a contractual arrangement is unreasonable.
Response: Facilities have the flexibility to determine the
materials to use for providing training and determining the appropriate
individuals to be responsible for providing the training. In the
proposed rule we indicated that training should be provided for new and
existing staff, individuals providing services under a contractual
arrangement, and volunteers consistent with their expected roles. We do
not agree that requiring individuals under a contractual arrangement be
trained is unreasonable. Facilities have a responsibility to ensure
that the individuals they employ, whether directly or under contract,
have their appropriate competencies and capabilities to provide
services in their facility.
Comment: Commenters indicated concern regarding the financial and
administrative burdens associated with requiring expansive training
requirements. Commenters noted that it is already challenging to
address the currently imposed training requirements. Also, commenters
indicated that facilities need the flexibility to determine how to
training staff on the proposed training topics. One commenter
recommended that the proposed training topics be evaluated by a
workgroup comprised of both CMS and providers and that any new training
topics be implemented based on a 5 year phased-in schedule.
Response: We did not propose a specific training mechanism to meet
the training requirements, therefore facilities have the flexibility to
determine how to appropriately train staff. Given the overall
comprehensive revision to the LTC requirements we are finalizing a
phased in implementation schedule for this regulation. We defer readers
to section II.B. Implementation for a detailed discussion regarding the
implementation timeline for the training requirements, as well as the
other requirements finalized in the rule.
Comment: One commenter noted that there are many ways to provide
training such as computer based training, self-directed learning,
mentoring and coaching.
Response: We appreciate the feedback from commenters and agree that
there are many effective training mechanisms available to facilities to
meet the training requirements including those recommended by the
commenter.
After consideration of the comments we received on the proposed
rule, we are finalizing our proposal with the following modifications:
Adding a new requirement at Sec. 483.95(c)(3) to require
that staff
[[Page 68822]]
receive dementia management and abuse prevention training.
III. Provisions of the Final Regulations
In this final rule, we are adopting the provisions of the July 16,
2015 proposed rule with the following revisions:
In Sec. 483.5, we are revising the definition of
``abuse'' to ``the willful infliction of injury, unreasonable
confinement, intimidation, or punishment with resulting physical harm,
pain or mental anguish. Abuse also includes the deprivation by an
individual, including a caretaker, of goods or services that are
necessary to attain or maintain physical, mental, and psychosocial
well-being. Instances of abuse of all residents, irrespective of any
mental or physical condition, cause physical harm, pain or mental
anguish. It includes verbal abuse, sexual abuse, physical abuse, and
mental abuse including abuse facilitated or enabled through the use of
technology. Willful, as used in this definition of abuse, means the
individual must have acted deliberately, not that the individual must
have intended to inflict injury or harm.''
In Sec. 483.5, we are revising the definition of
``exploitation'' to ``taking advantage of a resident for personal gain
through the use of manipulation, intimidation, threats, or coercion.''
In Sec. 483.5, we are adding ``registered respiratory
therapist or certified respiratory therapy technician'' to the
definition of ``licensed health professional.''
In Sec. 483.5, we are adding a definition of
``mistreatment'' and define it as ``inappropriate treatment or
exploitation of a resident.''
In Sec. 483.5, we are revising the definition of
``neglect'' to ``the failure of the facility, its employees or service
providers to provide goods and services to a resident that are
necessary to avoid physical harm, pain, mental anguish or emotional
distress.''
In Sec. 483.5, we are revising the definition of
``resident representative'' to (in accordance with 45 CFR 1324.1),
``(1) An individual chosen by the resident to act on behalf of the
resident in order to support the resident in decision-making; access
medical, social or other personal information of the resident; manage
financial matters; or receive notifications; (2) A person authorized by
State or Federal law (including but not limited to agents under power
of attorney, representative payees, and other fiduciaries) to act on
behalf of the resident in order to support the resident in decision-
making; access medical, social or other personal information of the
resident; manage financial matters; or receive notifications; (3) Legal
representative, as used in section 712 of the Older Americans Act; or
(4) The court-appointed guardian or conservator of a resident. (5)
Nothing in this rule is intended to expand the scope of authority of
any resident representative beyond that authority specifically
authorized by the resident, State or Federal law, or a court of
competent jurisdiction.''
In Sec. 483.10, we have consolidated proposed Sec.
483.10 and proposed Sec. 483.11 into Sec. 483.10, ``Resident rights''
and removed or updated all cross-references as appropriate.
In Sec. 483.10, we have replaced the term ``verbal'' with
``oral'' throughout this entire section.
In Sec. 483.10, we have moved introductory language from
proposed Sec. 483.10 and proposed Sec. 483.11, as well as Sec.
483.11(a)(2) to Sec. 483.10(a) ``Resident Rights.''
In Sec. 483.10, we have consolidated proposed Sec.
483.10(a)(1) through (5), and proposed Sec. 483.11(a)(1), and (a)(3)
through (5) into Sec. 483.10(b), ``Exercise of rights.''
In Sec. 483.10, we have revised Sec. 483.10(b)(3) to
incorporate previously existing language clarifying that the provision
applies to residents who have not been adjudged incompetent by a State
court.
In Sec. 483.10, we have revised Sec. 483.10(b)(7)(i) to
clarify that, in the case of a limited guardianship, a facility does
not defer all decision making to a guardian, when a court's
determination does not require it.
In Sec. 483.10, we have consolidated proposed Sec.
483.10(b) and proposed Sec. 483.11(b) into Sec. 483.10(c), ``Planning
and implementing care.''
In Sec. 483.10, we have changed the term '' disciplines''
to ``the type of care giver or professional'' at Sec. 483.10(c)(4).
In Sec. 483.10, we have clarified in Sec. 483.10(c)(5)
that the physician or other practitioner or professional informs the
resident of the risks and benefits of proposed care, of treatment and
treatment alternatives or treatment options.
In Sec. 483.10, we have consolidated Sec. 483.10(b)(6)
and Sec. 483.11(b)(2) into Sec. 483.10(c)(7) which now states ``The
right to self-administer medications if the interdisciplinary team, as
defined by Sec. 483.21(b)(2)(ii), has determined that this practice is
clinically appropriate.''
In Sec. 483.10, we have withdrawn proposed Sec.
483.10(c)(2) to require that physician's meet facility credentialing
requirements and consolidated Sec. 483.10(c)(1) and (3), and Sec.
483.11(c)(1) through (3) at Sec. 483.10(d).
In Sec. 483.10, we have redesignated Sec. 483.10(d) as
Sec. 483.10(e), revised paragraph (6) to specify that the resident has
a right to receive written notice, including the reason for the change
before the resident's room or roommate in the facility is changed and
added a new paragraph (7)(iii) to clarify that a room change cannot be
solely for the convenience of staff.
In Sec. 483.10, we have consolidated proposed Sec.
483.10(e) and proposed Sec. 483.11(d) at Sec. 483.10(f), Self-
determination.
In Sec. 483.10, we have added ``and other applicable
provisions of this Part'' to Sec. 483.10(f)(1).
In Sec. 483.10, we have consolidated Sec. 483.10(e)(3)
and Sec. 483.11(d)(1) at Sec. 483.10(f)(4), clarified that the
resident's right to deny visitation is ``when applicable,'' clarified
that a facility must have written policies and procedures for
visitation that includes restrictions, when such limitation may apply
consistent with the requirements of this subpart, that the facility may
need to place on such rights and the reasons for the clinical or safety
restriction or limitation, and clarified that the facility must inform
each resident not only of any limitation, but also to whom the
restrictions apply.
In Sec. 483.10, we have added at Sec. 483.10(f)(5)(i)
that a facility must take reasonable steps, with the approval of the
group, to make residents and family members aware of upcoming meetings
in a timely manner.
In Sec. 483.10, we have added at paragraph (f)(5)(ii)
``or other guests'' to the list of individuals who may only attend a
resident or family group meeting at the group's invitation.
In Sec. 483.10, we have consolidated proposed Sec.
483.10(e)(8) and Sec. 483.11(d)(4) into Sec. 483.10(f)(9).
In Sec. 483.10, we have consolidated proposed Sec.
483.10(e)(9) and Sec. 483.11(d)(5) into Sec. 483.10(f)(10).
In Sec. 483.10, we have changed ``may'' to ``must'' in
Sec. 483.10(f)(11)(i).
In Sec. 483.10, we have changed ``health care provider''
to ``physician, physician assistant, nurse practitioner, or clinical
nurse specialist'' in Sec. 483.10(f)(11)(ii)(L)(1).