New LTC Regulations – Summary of Implementation Mandates

October 13, 2016

Our Health & Long Term Care (LTC) group is integrating the new LTC final regulations for clients and will begin advising of changes required in the coming weeks before Phase I requirements become effective on November 28, 2017. Given the extent of the changes and the implementation time line (effective November 28 2016, with some mandates deferred to November 2017 and November 2018), we will be issuing segments on a weekly basis focusing on key aspects of the final rule. This past week, our team provided a summary of the prohibitions on pre-dispute arbitration agreements. (See https://www.bsk.com/media-center/3593-health-care-cms-final-rule-prohibits-pre-dispute-arbitration-agreements-at-long.) Last year, we provided a summary of the proposed regulations. (See https://www.bsk.com/media-center/3180-health-law-wire-cms-proposes-major-overhaul-ltc-survey-regulations-7-15 .)

Within this current Health Law Wire, we are advising clients of our review of the major mandates arising out of the now finalized LTC standards. What follows is the Centers for Medicare & Medicaid Services (CMS) – an agency within the Health and Human Services Department – summary provided within its 700 plus page final rule on the direct impact to LTC facilities. This summary is quoted directly from the regulatory commentary provided by CMS:

1. RESIDENT RIGHTS § 483.10

NOTIFICATION OF CHANGES TO CARE PLAN (§ 483.10(C)(2))
Existing requirements require that a resident, to the extent practicable, participate in the development of his or her care plan and be informed of the need to significantly alter treatment. We believe that the involvement and notification will include an opportunity to see the care plan. Periodic review after development of the care plan is also already required. However, we require a new right for the resident, the right to sign the care plan. 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.

NOTIFICATION OF A NEED TO SELECT A NEW PHYSICIAN (§ 483.10(D)(4)
In this final rule, we require facilities to inform the resident if the facility determines that the physician chosen by the resident is unable or unwilling to comply with regulatory requirements, discuss alternatives, and honor the resident's preferences. Under existing requirements, the facility is already required to ensure that the resident is informed of the name, specialty, and way of contacting the physician responsible for his or her care.

NOTIFICATION OF CHARGES § 483.10(F)(11)(III)
We specify that if a resident requests an item or service for which the facility will charge, the facility must inform the resident both orally and in writing of the charge. Existing provisions require that facilities only “inform” the resident. We expect that “informing” has typically been accomplished orally; therefore the additional cost to facilities is associated with providing the written information at the time the oral information is given. We anticipate that this written information will most often be in the form of a list of standard charges for frequently requested items and the cost will be the cost of photocopying or printing the list. In infrequent cases, an individualized cost page may be needed.

INTERNET ACCESS (§ 483.10(G)(9))
Section 483.10(g)(9) requires that a resident has the right to reasonable access and privacy for electronic communications such as email and video communications and internet research. This provision does not require that the facility provide internet access to any greater extent than the facility already has internet access (that is, a facility that has no internet access due to logistical deterrents is not required to overcome those obstacles based on this requirement) and the facility is allowed to transfer any additional expense to the resident if any additional expense is incurred. The facility is not obligated to provide each resident an individual means of access (that is, a personal computer or tablet). A community computer with associated rules for sharing, such as is commonly done in public libraries, may be an appropriate model. While we allow the facility to pass additional costs to the resident, we anticipate that some facilities may incur an initial hardware cost that is not attributable to an individual resident. In addition, we expect there will be minimal ongoing maintenance/replacement costs for the shared devices. We do not believe this requirement will add to the supervision burden for facility staff, as appropriate resident supervision is already required, it may require a director of nursing (DoN) or nursing home administrator (NHA) to establish rules for use.

RESIDENT GROUPS IN THE FACILITY(§ 483.10(F)(5)(III))
Facilities are currently required to provide a designated staff person to participate in resident and family groups. The revised requirement adds that the designated staff person must be approved by the resident or family group. We anticipate that the DoN will select a representative and obtain group agreement by providing a name or names to the group and the group will respond.

UPDATING OF NOTICES
We are finalizing provisions that will require facilities to review and update their existing notices of rights and services and inform residents of these updates. First, at § 483.10(f)(4)(vi)), we are finalizing our provision to require facilities to inform each resident of their visitation rights. Second, at § 483.10(g)(5) we have added additional state regulatory and information agencies that facilities must post the contact information for to be available to residents.

When assessing the burden of these requirements we make a few assumptions. First, we believe that notices regarding facility practices are periodically reviewed and updated as a standard business practice. In addition, we believe that a facility's visitation policy is already addressed in their notices of rights and services that must be provided to a resident regarding the rules and regulations that govern resident conduct and responsibilities during their stay in the facility.

Based on these assumptions, we expect that facilities will need to review and update their notices of rights and services on a one-time basis to specifically include the new visitation requirements, additional contact information, and grievance requirements. We believe that an office assistant may be tasked with updating the notices and distributing or posting, as appropriate, the updated information.

MEDICAID ELIGIBILITY (§ 483.10(G)(17))
Current regulations facilities to provide notice to a resident of their Medicaid eligibility. We have revised the requirement so that those residents who are not eligible for Medicaid at admission will receive an additional notice when they do become eligible. This means some residents will require both a notice at admission and a second notice. As the notice of Medicaid eligibility is already required once, the new cost is associated with providing the notice an additional time. We anticipate that this will affect only a subset of residents (those eligible but not yet receiving Medicaid). Thus, based on a data analysis by AHCA, approximately 64 percent of LTC facility residents are already Medicaid recipients (that is, Medicaid is the payor of record), 14 percent are covered by Medicare, and 22 percent have another payor. Of those, only the 36 percent who are not receiving Medicaid may require the second notice of Medicaid eligibility. We assume that a portion of those will require ongoing care and become eligible for Medicaid. We also assume that some of those residents will apply for Medicaid at or shortly after admission or as a result of the first notice and not require the second notice.

GRIEVANCES (§ 483.10(J))
We are finalizing our proposal to require facilities to establish a grievance policy and identify a grievance official who is responsible for overseeing the grievance process. Existing regulations provide residents with the right to voice grievances without discrimination or reprisal and require facilities to promptly resolve grievance. Based on these existing regulations, we expect that most facilities already have process for residents to file a grievance and a process in which they will investigate and respond. Therefore, the cost associated with establishing a grievance policy will be associated with designating an individual as the grievance official who is responsible for overseeing the grievance process. We do not specify who has to be the grievance official….

2. ADMISSION, TRANSFER, AND DISCHARGE RIGHTS (§ 483.15)

NOTICE OF TRANSFER (§ 483.15(C)(4))
Existing regulations require facilities to notify the resident and a representative of the resident before a facility transfers or discharges the resident. These final regulations add that a facility must also send notice to the Office of the State Long-Term Care Ombudsman. The notice is already created for the resident; this requirement poses an additional burden of printing a copy of the notice and sending it to the Office of the State Long-Term Care Ombudsman or, if a means of electronic transmission is available, sending a notice electronically.

UPDATE TRANSFER NOTICES (§ 483.15(C)(6))
We are finalizing our proposal to add a requirement for facilities to update a transfer notice if the information changes and provide the updated information to the recipients of the notice as soon as practicable once the updated information is available. We believe that updates regarding any changes are already occurring in facilities informally.

3. COMPREHENSIVE RESIDENT CENTERED CARE PLANNING (§ 483.21)

ADDITIONAL MEMBERS OF THE IDT (§ 483.21(B)(2)(II))
We are finalizing our proposal to require that a nurse aide and member of nutrition services participate on the IDT. We note that based on concerns raised by commenters, we have removed our requirement for a social worker to participate on the IDT. We believe that this requirement will add to the current duties of each of these staff members and therefore would be a new economic cost to each facility. Communications about the status of a resident are a part of standard job duties. We envision that these staff members are already regularly discussing resident's needs and their plans of care. When assessing the amount of burden associated with this requirement, we believe that this requirement will produce an incremental increase in the staff time necessary to participate on the IDT. In addition, we do not specify the type of communication the IDT must use. IDT members may use electronic communication as well as informal discussions to participate in IDT meetings.

DISCHARGE PLANNING (§ 483.21(C)(1)(VII))
We require that, for residents who are transferred to another SNF or who are discharged to a HHA, IRF, or LTCH, facilities 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. The facility also must ensure that the post-acute care standardized patient assessment data, data on quality measures, and data on resource use is relevant and applicable to the resident's goals of care and treatment preferences. We believe that a social worker will be responsible for compiling the standardized data, reviewing the resident's preferences/goals, and pulling data that applies to these preferences/goals. We estimate that it will take a social worker approximately one hour of staff time to compile and review the data in order to align the data with each resident's preferences/goals.

4. NURSING SERVICES (§ 483.35)

We are finalizing our proposal to require facilities to ensure that licensed nurses have the specific competencies and skill sets necessary to care for residents' needs, as identified through resident assessments and care plans. This will require facilities to identify, document, and maintain any training, certification, and similar records in an existing personnel file or training record for direct care personnel. This specifically includes nursing services and food and nutrition services but may apply to any direct care provider. We anticipate that any initial competency requirements will be identified by the facility assessment with documentation of individual accomplishments managed by an administrative position, likely an office assistant, as an addition to existing documentation.

5. FOOD AND NUTRITION (§ 483.60)
REQUIREMENTS FOR FOOD

SERVICE DIRECTORS (§ 483.60(A)(2))
We are finalizing our provision to establish requirements for directors of food and nutrition services hired before or after the effective date of these requirements. We require that the director of food and nutrition services be certified as a certified dietary manager, certified food service manager or similar national certification for food service management and safety from a national certifying body; or has an associate's or higher degree in food service management or hospitality from an accredited institution of higher learning, or meets established state requirements. Many states already establish additional staff qualifications for food service directors and we expect that most facilities already hire food service directors that meet these requirements. In addition, we note that if the facility choses to designate their current food service manager as their director of food and nutrition services, the final rule allows 5 years following the effective date of this final rule for these individuals to comply with these requirements. We do not anticipate that many hiring officials will spend additional time recruiting other appropriate candidates, however we can assume that a small percentage will pursue additional candidates and spend time verifying credentials.

MENU OPTIONS (§ 483.60(C)(4))
We are finalizing our proposal to require facilities to have menus that reflect the cultural and ethnic needs of residents. We expect that facilities will have their menus updated by a qualified dietitian or other clinically qualified nutrition professional in the course of routine reviews and updates.

6. QAPI (§ 483.75)

We are finalizing the requirement for facilities to develop a QAPI program. In addition to the QAPI requirement related ICR costs discussed in the COI section, we expect that facilities will incur additional costs that will be dependent upon the projects they selected for their quality improvement activities. In turn, the projects will be dependent upon resident needs, and the type, complexity, and quality of services already provided by the facility. Facilities have the flexibility to determine their quality performance improvement activities based on their assessment of needs of their residents and their prioritized performance improvement projects. For example, a facility that chose, as one of its projects, to improve residents' nutritional status and satisfaction with the facility's food services could incur costs for higher quality, more palatable food. A facility that chose, as one of its projects, to improve nurse aides' interactions with residents suffering from dementia could incur costs for nurse aide training and/or additional nurse aide staffing. A facility that chose, as one of its projects, to improve residents' psychosocial well-being could incur costs for conversion of double rooms to single rooms, and additional social worker, and/or increased social activities for residents.

7. INFECTION CONTROL (§ 483.80)

Facilities and their staffs are currently required to have an infection control program (§ 483.65). In this final rule, we have modified our proposal to require each facility to designate one individual as the infection preventionist (IP) for whom the infection prevention and control program (IPCP) is a major responsibility. We have revised the requirement to specify that each facility may designate more than one person as the IP and the IPCP no longer has to be a major responsibility of the individual(s). The IP is responsible for assessing the current program, making any changes to the IPCP necessary to comply with the program's requirements, and implementing and managing the IPCP. This individual will also be required to be a member of the facility's QAA committee. The percentage of a full time equivalent position (FTE) that will be required at each facility will vary greatly. We believe that each facility will have to determine the appropriate percentage based upon it facility assessment, especially its assessment of the acuity of its resident population. A facility with a generally healthy population of elderly individual will likely require many fewer hours than a facility with a large percentage of sub-acute residents or residents that are on ventilators.

8. COMPLIANCE AND ETHICS PROGRAM (§ 483.85)

COMPLIANCE OFFICER AND COMPLIANCE LIAISON ACTIVITIES
We are finalizing our proposal to require facilities to develop a compliance and ethics program.

ANNUAL REVIEW OF PROGRAM (483.85(E))
As detailed in the COI section, facilities are required to review their compliance and ethics program annually. Therefore, for subsequent years we estimate to comply with the ICR requirement to review and, if necessary, revise the operating organization's program annually will cost an estimated $6,216,900.

9. PHYSICAL ENVIRONMENT (§ 483.90)

RESIDENT ROOMS (§ 483.90(D)(1)(I))
For facilities that receive approval of construction or reconstruction plans by state and local authorities or are newly certified or undergoing reconstruction after the effective date of this final rule, we are finalizing our proposal to require that resident rooms accommodate no more than two residents.

TOILET FACILITIES (§ 483.90(E))
In this final rule, we have removed our proposal to require that for resident rooms newly constructed or undergoing reconstruction, each room must have its own bathroom equipped with at least a commode, sink and shower. We have revised the proposal to require that for newly constructed or newly certified facilities, each bathroom must be equipped with at least a commode and sink.

10. TRAINING REQUIREMENTS (§ 483.95)

GENERAL TRAINING TOPICS (§ 483.95A)
We are finalizing our proposal to require facilities to develop and/or update training materials to include topics on communication, resident rights, facility obligations, abuse, neglect, exploitation, infection control, and its QAPI program. We require that these training topics be provided for all new and existing staff; individuals providing services under a contractual arrangement; and volunteers, consistent with their expected roles and that they be able to demonstrate competency in these topic areas. We also expect each facility to keep a record of these trainings. To reduce regulatory burden and create a reasonable requirement we have not specified the amount or types of training that a facility must provide. There are various free online training tools and resources that facilities can use to assist them in complying with this requirement. For example, the Agency for Healthcare Research and Quality (AHRQ) released a set of training modules to help educate LTC facility staff on key patient safety concepts to improve the safety of LTC facility residents (http://www.ahrq.gov/professionals/systems/long-term-care/resources/facilities/ptsafety/). In addition to the web based materials, instructor and student handbooks can be sent to facilities at no additional cost. Therefore, we believe that the cost associated with this requirement will be limited to the staff time required to review and update their current training materials.

Based on our experience with facilities, we expect that all facilities have some type of training program. However, we expect that each facility will need to compare their training programs to their facilities assessments as required at § 483.70(e) and ensure they cover the above training topics. We expect that complying with this requirement will require the involvement of a RN and the infection control and prevention officer (ICPO). We expect that a RN will spend more time reviewing, revising and/or developing new sections for the training program. The IP will need to weigh in on the infection control training related topics.

COMPLIANCE AND ETHICS PROGRAM TRAINING (§ 483.95(F))
We require that SNF and NF operating organizations include as part of their compliance and ethics program an effective way to communicate their program's standards, policies, and procedures. We believe that all operating organizations would need to develop training materials and/or other publications to comply with the training requirement. This regulation requires higher standards for organizations operating 5 or more facilities, therefore for the purposes of the RIA our cost estimates differentiate by organization size. *** For the training in operating organizations with 1 to 4 facilities, we expect that operating organizations will be able to minimize these training costs by including the training on their compliance and ethics program with any current trainings or in-services that they already conduct for their staff. In addition, these facilities could also include this information in publication, print or electronic, that are available to their staff.

DEMENTIA MANAGEMENT AND ABUSE PREVENTION TRAINING § 483.95(G)
This final rule will implement section 6121 of the Affordable Care Act which requires dementia management and abuse prevention training to be included in the current mandatory on-going training requirements for nurse aides. In addition, we have also extended this requirement to all direct care staff. Facilities will have the flexibility to determine the length of the training and the format of the training. Since we have not increased the minimum hours for training, we anticipate that facilitates will maximize their on-going training efforts to improve outcomes through a more efficient training program by modifying their current training program to ensure that all NAs receive annual training in dementia management and abuse prevention. In addition, we believe that the majority of facilities will need to acquire training materials to either update or supplement what they are currently using to train staff. There are numerous online tools available to facilities at no cost. For the sole purpose of complying with section 6121 of the Affordable Care Act and ensuring that nurse aides receive regular training on caring for residents with dementia and on preventing abuse. CMS has published an online hand in hand tool kit that provides a detailed training series for LTC facilities on dementia education and abuse prevention (http://www.cms-handinhandtoolkit.info/). CMS, supported by a team of training developers and subject matter experts, created this training to address the need for nurse aides' annual in-service training on these important topics. The mission of the hand in hand training is to provide LTC facilities with a high-quality training program that emphasizes person-centered care in the care of persons with dementia and the prevention of abuse.

11. ADMINISTRATION § 483.70(E)

We are finalizing our requirement for facilities to 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. LTC facilities must already determine and plan for what staffing they will need, as well as the other resources that will be required to care for their residents and operate their facilities. Thus, we believe that conducting and documenting a facility assessment is a standard business practice and do not include a burden for this requirement in the impact analysis.