Newly Imposed Medicare Regulations Aim to Increase Nursing Home Quality, Many Opportunities for Improvement Remain

In November 2016, the Centers for Medicare & Medicaid Services (CMS) began implementing their first newly revised set of nursing home regulations since 1991. According to CMS, 1.5 million Americans call a long term nursing care facility their home, a number that is increasing year by year. With such a large volume of residents in nursing homes, coupled with the fact that for-profit companies own and operate the majority of them, CMS finally decided to tighten rules imposed on the facilities. CMS hopes that the appeal of receiving as much funding as possible from Medicare and Medicaid will encourage facilities to abide by the latest set of changes.

The Good
One of the best provisions outlined in the new regulations is the call for staff training on elder abuse and neglect, specifically on how to care for residents with dementia. Dementia in some form is present in the majority of residents at nursing homes and knowing how to properly care for patients facing this diagnosis has been an age-old problem in long term care facilities.

There is also a policy that states each facility must have a designated ‘infection prevention and control officer,’ a position that also requires facilities to establish and maintain an antibiotic abuse prevention program.

Another regulation states that it is now considered a violation to transfer a resident to a hospital and refuse their readmittance back to the home after receiving treatment. This process, commonly referred to as ‘dumping,’ would leave residents without a place to return, resulting in transference to a lesser facility or even homelessness. Patients can now appeal the decision and cannot be ‘dumped’ while waiting for the decision. The provisions also require detailed care plans for transferred patients, allowing the accepting facility to examine thorough records and review recommendations for each patient.

Overall, CMS vowed to start this new year with a focus on patient-centered care and the latest revisions to long-term care facility standards seem to lead toward that goal. W

The Bad
Despite the positive changes outlined above, CMS overlooked several key areas that are in dire need of improvement:
Staffing ratios are considered one of the largest contributing factors to nursing home abuse and neglect. With high patient volumes and not enough staff members to care for them, staffers become overworked and frustrated, which leads to substandard care. CMS failed to address this issue and did not specify specific ratios in their latest plans. This leaves staffing ratios up to facilities, who have shown time and time again that they would rather focus on the financial bottom line.

The new regulations also make no mention of requiring at least one nurse to be present 24 hours a day. By not requiring at least one R.N. to be in the facility at all times, nursing homes are playing roulette. The hope is that should a resident have a health concern, that it would only occur when an RN or Physician is within the building, odds which are just too good to be true.

The Ugly
CMS’s new provisions detailed a ban on mandatory arbitration clauses in nursing home contracts. Last month we discussed how this provision was argued by the organization that represents for-profit nursing homes (70% are for profit) and stalled by a Mississippi federal court. We also shared our thoughts on how binding arbitration strips the rights from our most vulnerable population – the elderly. Of all of the regulations recently introduced by CMS, we would argue that the ban on binding arbitration was the most important. If all CMS policies are in place to discourage improper care, negligence, abuse and other atrocities, wouldn’t the risk of losing everything financially encourage facilities to follow the letter of the law, so to speak? By forcing residents into arbitration, they are restricting their right to fair compensation and a jury trial, something we as Americans of any age are entitled to.

The Chicago elder abuse attorneys at Levin & Perconti encourage everyone to make their voice heard by contacting Congress. Further instructions on how to do so will be discussed in a later post.

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