Earlier this month, the Center for Medicare and Medicaid Services (“CMS”) issued a final rule repealing its’ prior rule prohibiting long-term care providers (“LTC”) from entering into pre-dispute, binding arbitration agreements with their residents. This change takes effect September 16, 2019 and comes after years of protracted rule-making efforts, public comment, and litigation that began in October 2016 when CMS issued a final rule prohibiting the agreements in nursing facilities and ended up in the U.S. Supreme Court in May 2017.

This new final rule represents a win, albeit a limited one, for the long-term care industry. On one hand, the ability to pursue arbitration represents a real opportunity for facilities to reduce liability and minimize the costs of potential litigation with residents by eliminating discovery, attorneys’ fees, and other related litigation expenses. On the other hand, the final rule contains a number of provisions, intended to protect nursing home residents, which may cause providers concern as they evaluate the benefit of adding these provisions to their Admission Agreements.

Changes Made to Compliance and Ethics Programs and Quality Assurance and Performance Improvement Programs

On July 16, 2019, the Centers for Medicare & Medicaid Services (“CMS”) released a pre-publication copy of the revisions (“Proposed Rule”) to Part 483 to Title 42 of the Code of Federal Regulations the Requirements for States and Long-Term Care Facilities (“RoPs”). CMS stated that it identified a number of existing skilled nursing facility requirements that could reduce unnecessary burdens on facilities if they were simplified or eliminated.

The Proposed Rule would alter a over dozen sections of the RoPs, including: (1) resident rights; (2) admissions transfers and discharges; (3) quality of care; (4) nursing services; (5) behavioral health; (6) pharmacy services; (7) food and nutrition services; (8) facility assessments; (9) physical environment; (10) compliance and ethics programs; (11) Quality Assurance and Performance Improvement (“QAPI”) programs; and (12) infection control. The Proposed Rule also proposes to delay implementation to some of these Phase 3 provisions until one year following the effective date of the Proposed Rule.

ACHCA heard today from Mary Elizabeth (Liz) Chesney, Contract Support, National Healthcare Preparedness Programs, HHS/ASPR/OEM. She reported the following information: 

Today, the Centers for Medicare & Medicaid Services (CMS) finalized rules to establish consistent emergency preparedness requirements for health care providers participating in Medicare and Medicaid, increase patient safety during emergencies, and establish a more coordinated response to natural and man-made disasters. These new rules will require certain participating providers and suppliers to plan for disasters and coordinate with federal, state, tribal, regional, and local emergency preparedness systems to ensure that facilities are adequately prepared to meet the needs of their patients during disasters and emergency situations. The effective date will be November 16, 2016 and the implementation date will be November 16, 2017. [emphasis added]