On September 28, 2016, CMS issued a final rule to improve the care and safety of nursing home residents in long-term care facilities.  The new rules are intended to reduce unnecessary hospital readmissions and infections, improve the quality of care, and strengthen safety measures for residents in these facilities.  This is the first major overhaul of nursing home regulations in 25 years.

Perhaps most notably, the final rule prohibits long-term care facilities who participate in the Medicare or Medicaid programs from (1) requiring residents to sign binding arbitration agreements as a condition of admission or (2) entering into a pre-dispute agreement for binding arbitration with any resident or resident’s representative.  Long-term care facilities may not include a pre-dispute binding arbitration clause in the admission agreement, even if the facility provides the resident an opportunity to “opt out” of the arbitration agreement at the time of admission.  After a dispute between the facility and a resident arises, however, a facility may ask a resident or the resident’s representative to enter into an agreement for binding arbitration if the facility ensures the agreement is adequately explained, the resident acknowledges that he or she understands the agreement, and the agreement contains certain other protections, as codified in 42 C.F.R. § 483.70(n).  A facility cannot require the resident to sign a post-dispute arbitration agreement as a condition of the resident continuing to stay at the facility.  The final rule also limits when an individual other than the resident (e.g., the resident’s representative) may sign the arbitration agreement.  The restrictions apply to agreements executed on or after November 28, 2016. 

The prohibition is intended to strengthen the rights of long-term care facility residents.  According to CMS, the prohibited pre-dispute arbitration agreements have a “deleterious impact on the quality of care of residents.”  Although the final rule does not apply to agreements executed prior to November 28, 2016, CMS noted its belief that pre-dispute arbitration agreements signed as a condition of admission, relating to any type of dispute, and covering the patient’s entire stay, are “unconscionable.”   

Other notable components of the final rule require long-term care facilities to:

• Update the facilities’ infection prevention and control program to include an infection prevention and control officer and an antibiotic stewardship program that includes antibiotic use protocols and a system to monitor antibiotic use.
• Develop, implement, and maintain an effective comprehensive, data-driven quality assurance and performance improvement program that focuses on systems of care, outcomes of care and quality of life.
• Investigate and report all allegations of abusive conduct and forego employing individuals who have had a disciplinary action taken against their professional license by a state licensure body as a result of a finding of abuse, neglect, mistreatment of residents or misappropriation of their property.
• Improve care planning and discharge planning for residents with involvement of the facilities’ interdisciplinary team and consideration of the caregiver’s capacity, giving residents information they need for follow-up after discharge, and ensuring that instructions are transmitted to any receiving facilities or services.  Facilities must develop and implement a baseline care plan for each resident within 48 hours of their admission.
• Ensure that long-term care facilities’ staff members are properly trained on caring for residents with dementia and in preventing elder abuse.
• Ensure that long-term care facilities take into consideration the health of residents when making decisions on the kinds and levels of staffing a facility needs to properly take care of its residents.
• Ensure that staff members have the right skill sets and competencies to provide person-centered care to residents.
• Allow dietitians and therapy providers the authority to write orders in their areas of expertise when a physician delegates the responsibility and state licensing laws allow.
• Provide each resident with a nourishing, palatable, well-balanced diet that meets his or her daily nutritional and special dietary needs, taking into consideration the preferences of each resident.
• Have a pharmacist review residents’ medical charts during each monthly drug regimen review. 
• Provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with the resident’s comprehensive assessment and plan of care.
• Have a facility policy identifying those instances when the loss or damage of a resident’s dentures is the facility’s responsibility and forego charging a Medicare resident for the loss or damage of dentures determined in accordance with facility policy to be the facility’s responsibility. 
• Accommodate no more than two residents in a bedroom for those facilities that are constructed, re-constructed, or newly certified after November 28, 2016.

CMS did not finalize other proposals set forth in the proposed rule, including CMS’s proposal to require in-person screening of patients by a physician or another highly trained practitioner before a patient could be transferred to a hospital from a nursing home, unless there was an emergency.  The proposal, intended to avoid unnecessary hospitalizations, was scrutinized by commenters concerned that the requirement would interfere with patient transfer rights and delay access to care. 

The final rule is available here in its unpublished form and is expected to be published in the Federal Register on October 4, 2016.