Easing of Federal Nursing Home Regulations

On November 28, 2016, the Department of Health and Human Services implemented new regulations to govern Long-Term Care (LTC) facilities. Although these nursing home regulations have now been in place for more than a year, debate continues as to whether they’re beneficial to residents.

The regulations involved substantial revisions that nursing homes must meet to continue participating in the Medicare and Medicaid programs. These regulatory changes were the first comprehensive revisions made in over 25 years, and according to the Centers for Medicare & Medicaid Services, were necessary to keep up with modern advances in service delivery and safety, as well as to improve the quality of care patients receive. These changes also focused on cutting some of the procedural red tape that sometimes confines care providers.

What Do the Changes Mean?

As with any major reform, the changes have been met with both criticism and praise. Some reports claim that the changes were simply a move by the new presidential administration to “ease regulations and fines for nursing homes” without considering the best interest of LTC residents; while others believe the “changes are justified and will improve outcomes for nursing home residents.” The new regulations are a whopping 700 pages long and chalked full of confusing language and information – is it any wonder why there are differing perspectives as to whether the changes are beneficial?

In addition to revising outdated policies, new sections were added to the regulations to address a variety of key issues. Leading Age New York reported the following noteworthy additions:

Behavioral Health Services: All residents must have access to behavioral health care, provided by a staff member with appropriate training to “care [for] residents with mental and psychosocial illnesses and [implement] non-pharmacological interventions.”
Compliance and Ethics Program: Requires facilities to implement a program “with established written compliance and ethics standards, policies and procedures capable of reducing the prospect of criminal, civil, and administrative violations.”
Comprehensive Person-Centred Care Planning: Requires facilities to develop a “baseline care plan for each resident within 48 hours of admission.”
Facility responsibilities: Includes sweeping changes to visiting hours and more thorough background requirements for employees, as well as a guarantee of “freedom for abuse, neglect and exploitation” for residents.
Quality Assurance and Performance Improvement: Requires all LTC facilities to maintain “effective, comprehensive, ongoing, data-driven QAPI programs that focus on systems of care, outcomes of care and quality of life.”
Training Requirements: Requires facilities to train their staff on topics such as effective communication; resident rights and facility.

Why Not Everyone Agrees With the Changes to the Federal Nursing Home Regulations

While many of the regulatory revisions appear to be in the best interest of LTC residents, many people remain skeptical. The Connecticut Post reported that a senior attorney for the Centre for Medicare Advocacy believes the new regulations protect the wrong party: nursing facilities.

He believes the changes reduce regulations and minimize fines for LTC facilities, making it more difficult – and less likely – for any “enforcement to be brought against facilities with serious deficiencies.”

The Connecticut Post revealed a number of regulatory changes that benefit facilities over people, including:

Advising monitors to consider the extent to which noncompliance is a one-time accident or mistake, rather than evidence of a systemic problem
Discouraging daily fines for facilities that are noncompliant (which can quickly mount up to serious costs for ongoing offenders)
Freezing changes in the ratings for facilities for one year while the five-star system is revised
Imposing an 18-month suspension on certain violation remedies

Perhaps the most controversial regulation that has been proposed is the repeal of a historic change made by the Obama administration regarding binding arbitration. This proposal is not included in the current regulatory changes; however, it is slotted for consideration. National Public Radio (NPR) reports that the current Presidential administration’s proposed change will affect the way disputes between residents and facilities are resolved by “allow nursing homes to require new residents to agree to arbitration. If they refuse, they could be denied admission.” This means that new or prospective residents will be required to sign a document upon admissions stating that any disputes they have with the facility will be handled through private arbitration. This is problematic for three reasons:

Arbitration procedures are generally more secretive than a civil court – therefore any incident including abuse, neglect or death that is settled through private arbitration will never be made public;
Arbitration is overseen by a private judge, under a different set of rules and can be more restrictive than civil court;
Studies show that awards to plaintiffs through arbitration can be as much as 35% lower than civil court.

What You Can Do

Now more than ever it is important to thoroughly research prospective facilities for yourself or your loved one before choosing a nursing home.

There are many online articles and resources to help you research facilities, including the federal government’s Nursing Home Compare website.

As well, a personal tour will help you to get a better sense of the facility and observe the care residents are receiving.

What do you think about the recent changes to federal nursing home regulations and proposals impacting nursing homes? We’d like to hear your thoughts in the comments below.

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