CMS halts enforcement of some Obama-era nursing home standards

The CMS is pumping the brakes on enforcing an Obama-era regulation that sought to improve quality of care and safety at nursing homes.

Industry stakeholders welcome the move and said they need more time to implement the rule's policies, but patient advocates blasted the announcement and because they felt the decision put patient well-being in the crosshairs.

In an under-the-radar notice posted late last month, the CMS announced an 18-month moratorium on enforcement activities on several key parts of a nursing home regulation that was finalized last year. Without the delay, the nursing home industry would have had to comply with the new standards by Nov. 28. The 713-page rule was the first major update to requirements for long-term care providers since 1991.

Nursing homes now will not face civil money penalties, payment denials or termination from Medicare if they don't comply with certain requirements like ensuring they have adequate staff on-site, including staff qualified to provide behavioral health services. The facilities are also getting a pass on requirements that ensure appropriate prescribing of psychotropic medications.

The CMS said it will use this 18-month moratorium period to educate surveyors and providers to ensure they understand the health and safety expectations that must be met. To achieve that, the CMS still plans to hand out formal citations for deficiencies from the delayed policies, but facilities won't be subject to actual punitive action.

Long-term care facilities appreciated the move by the CMS. The agency only gave the facilities guidance on the policies in June, which wasn't enough time to prepare for the Nov. 28 compliance date, according to Janine Finck-Boyle, director of health regulations and policy at LeadingAge, a trade group that represents not-for-profit nursing homes and other elder-care providers.

"Time was running out," Finck-Boyle said. "Some facilities would not have been ready in terms of compliance."

The CMS' action was actually a compromise, as the industry wanted the rule frozen completely while it was rewritten to remove administrative burdens.

The rule introduced various new documentation procedures for everything from how to handle grievances to lost dentures. These standards won't actually lead to better care, according to Dr. David Gifford, senior vice president for quality and regulatory affairs at the American Health Care Association/National Center for Assisted Living.

"We appreciate what they've done, but we wanted them to go further," Gifford said.

Patient advocates were nevertheless dismayed by the CMS' actions even though the industry didn't get everything it wanted. The Center for Medicare Advocacy said the November notice was just the latest in a line of policy actions that seek to undermine efforts by prior administrations to make nursing homes safer and to provide a higher quality of care.

For instance, the CMS issued a notice in July that replaced earlier guidance by the Obama administration on civil monetary penalties for nursing homes.

The guidance urged agency surveyors of nursing homes to charge them per instance of wrongdoing versus a per day standard, where providers would be charged for every day the deficiency remains. That will reduce the overall number of financial penalties imposed on nursing homes, according to the Center for Medicare Advocacy.

"These changes, which are openly urged by the two-national nursing home trade associations, directly threaten the health, safety and well-being of nursing home residents," said Toby Edelman, a senior policy attorney at the advocacy organization. "CMS' announcement of an 18-month moratorium is just the latest assault on the enforcement system. This is a very dangerous time for residents."