A sweeping proposed rule aimed at significantly improving the quality of care Medicaid and Medicare beneficiaries receive in nursing homes is overly burdensome industry insiders say, while advocates are praising the attempt to bring forth change.
An estimated 1.5 million beneficiaries are receiving treatment at more than 15,000 long-term-care facilities or nursing homes around the country that participate in the Medicare and Medicaid programs.
The 403-page proposed rule released in July contains numerous proposals to reduce unnecessary hospital readmissions and infections, increase quality of care and introduce new safety measures.
Some of the specific changes include making sure that nursing home staff members are properly trained on caring for residents with dementia and in preventing elder abuse. Other changes include improving care planning, including discharge planning for all residents with involvement of the facility's interdisciplinary team and consideration of the caregiver's capacity, giving residents information they need for follow-up, and ensuring that instructions are transmitted to any receiving facilities or services.
By the time the comment period closed Oct. 14, the agency had received more than 9,000 responses.
“CMS' proposed changes to the requirements of participation encompass and impact virtually all of the current requirements of participation,” wrote Leading Age, a trade group representing 6,000 not-for-profit organizations such as nursing homes and hospices.
Leading Age and others in the industry want a staggered phase of at least five years to implement the provisions. The rulemaking will require providers to engage in significant modification to current care-giving practices and procedures.
“The magnitude and complexity of several of the proposed new requirements will, by necessity, mandate a more extended period of time for transition and training,” Leading Age says.
The CMS is also looking to strengthen the rights of nursing home residents, including placing limits on when and how binding arbitration agreements may be used.
That final suggestion was most concerning to the American Health Care Association, a nursing home trade group, which noted that such a change has never before been sought by the government in the 50-year history of both Medicare and Medicaid.
ACHA said the CMS' arbitration-related proposal should be withdrawn because it exceeds the agency's statutory authority, are not necessary to protect resident health and safety, and many of the stated factual and legal grounds for the proposals are incorrect.
Advocates, however, praised the move. “When the facility fails to meet its duty, it can take weeks or months before that failure, and the neglect and abuse, come to the family's attention,” the Consumers Union said in a comment. “Removing the prospect of effective legal accountability increases those dangers, and leaves residents even more vulnerable and powerless. The conditions being proposed by the department reflect a recognition of these facts, and are a well-intentioned attempt to address them.”
On a related note, the AARP praised the CMS' attempt to better protect beneficiaries by prohibiting facilities from employing individuals because of past incidents of abuse or neglect or mistreatment or misappropriation of property.
Other parts of the rule could hurt patient care in some ways, some industry stakeholders say. For instance, the American Hospital Association was concerned about the CMS' proposal to require facilities to provide notice to residents when changes in coverage are made by Medicare. The suggestion makes sense on the surface, but could add significant administrative burden to long-term-care facilities.
The CMS did not articulate how it expects facilities to carry out the notifications, AHA says.
“We are concerned that this provision, as proposed, could take time away from resident care,” AHA says.
It believes the CMS and Medicare Advantage plans should have the primary responsibility of alerting residents about changes in their Medicare coverage.
Also troubling some providers is a perceived theme within the proposed rule that frames antipsychotic and other psychotropic medication treatments for elderly individuals in a generalized negative light, according to the American Psychiatric Association.
The rule includes new stringent criteria for review and discontinuation of drugs without clear evidence that the benefits of discontinuation or limits on use are necessary or best for all patients.
“Though this may not be the intent, layer after layer of questioning and justifications for clinical decisionmaking may result in reducing access to needed care and decreasing clinician morale,” APA says.
It's unclear when the CMS plans to finalize the rule. The agency is the leading payer in the nation for long-term-care services. Approximately 64% of nursing home residents have their care paid for by Medicaid, another 14% are covered by Medicare and 22% have another payer, according to the AHCA.
If finalized, the proposals would cost the nursing home industry $729 million in the first year the rule is in effect and $638 million in year two, according to the CMS.