CMS Finalizes New Regulations for Facilities: Part 1

Review of Changes to Sections on Resident Rights, Freedom from Abuse, Admission, Transfers, Discharge, Resident Assessments and Comprehensive Resident-Centered Care

This is the first article in a series discussing the complete overhaul of Part 483 to Title 42 of the Code of Federal Regulations, the Requirements for States and Long-Term Care Facilities by the Centers for Medicare & Medicaid Services (“CMS”).

Because CMS’s Final Regulations (“Final Regulations”) impose numerous requirements on long-term care facilities, we will be issuing a series of articles on various components of the Final Regulations. This article focuses on provisions regarding Resident Rights, Freedom from Abuse, Admission, Transfers, Discharge, Resident Assessments and Comprehensive Resident-Centered Care.

Last week, Hall Render published an article that contained brief descriptions of Final Regulations components.

Background

On September 28, 2016, CMS released a complete overhaul of Part 483 to Title 42 of the Code of Federal Regulations, the Requirements for States and Long-Term Care Facilities. CMS’s Final Regulations cover many regulatory requirements for long-term care facilities and create new compliance obligations for providers. The Final Regulations seek to target rehospitalizations, facility-acquired infections, overall quality and resident safety.

Resident Rights – Section 483.10

The Final Regulations retain Section 483.10 regarding resident rights. The Final Regulations expand those rights, based on person-centered care, which was one of the over-arching principles of the Final Regulations, according to the responses to the Final Regulations. The Final Regulations clarify that a resident has the right to: designate a representative to assist the resident exercise his or her rights; choose his or her own physician, but the physician must meet certain qualifications; and select a roommate.

Implementation Timeframe. Except as noted below, Section 483.10 will be implemented in Phase 1, upon the effective date of the final regulations, November 28, 2016.

The subsection requiring that a facility provide contact information of state and local advocacy organizations, Medicare and Medicaid eligibility information and Aging and Disability Resources Center will be implemented in Phase 2 by November 28, 2017.

Detailed Summary. Prior regulations at Sec. 483.10 address several resident rights and facility requirements. The Final Regulations retain existing rights in Sec. 483.10, revise some provisions and add others.

Clarifies the resident’s right to designate a representative to support the resident in exercising the resident’s rights. A resident’s representative will only have the decision-making authority provided him or her by a court or contained in the delegation. A resident may have multiple representatives. The responses to the Final Regulations state that they expect a facility will have a process in place to ensure that the facility knows when a resident has a representative and the nature of the appointment. A resident representative must consider the resident’s wishes and preferences.
A resident who has been adjudged incompetent by a state court retains the right to exercise rights not granted to the resident’s representative by the court.
A resident has the right to choose his or her physician, provided the physician is licensed to practice medicine and must meet applicable regulatory requirements as well as the requirement that, in the event that it becomes necessary for a facility to seek alternate physician participation, the facility must discuss this with the resident and honor the resident’s selection of a new attending physician.
A resident has the right to receive written notification before the resident’s room or roommate is changed, and the notice shall contain the reason for the change.
A resident has the right to share a room with a roommate of his or her choice in a facility, when both residents consent to the arrangement.
A resident may receive notices verbally or in writing, including information about and contact information for the Aging and Disability Resource Center or another No Wrong Door program.
A resident has the right to request medical records verbally or in writing.
Revisions reflect the advancement and role of electronic communications.

Abuse, Neglect and Exploitation – Sec. 483.12

The Final Regulations move Section 483.13 to 483.12 and retitle it to include exploitation. Facilities must not employ individuals who have had a disciplinary action taken against their professional license as a result of a finding of abuse, neglect, mistreatment of residents or misappropriation of residents’ property. Facilities must develop and implement written policies and procedures that prohibit and prevent abuse, neglect and exploitation of residents’ property.

Implementation Timeframe. Except as noted below, Section 483.12 will be implemented in Phase 1, upon the effective date of the final regulations, November 28, 2016.

The subsection requiring that a facility ensure reporting of crimes occurring in federally funded long-term care facilities in accordance with section 1150B of the of the Social Security Act will be implemented in Phase 2 by November 28, 2017.

The subsection requiring that a facility develop and implement written policies and procedures that establish coordination with the Quality Assurance/Performance Improvement (“QAPI”) program required under Section 483.75 of the Final Regulations will be implemented in Phase 3 by November 28, 2019.

Detailed Summary. The Final Regulations move Section 483.13 to 483.12 and retitle it “Freedom from abuse, neglect, and exploitation.” The new Section 483.12 revises some sections from the old Section 483.13 and adds others.

Specifies that facilities must not employ 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 residents’ property.
Facilities must develop and implement written policies and procedures that prohibit and prevent abuse, neglect and exploitation of residents’ property.
Facilities must establish policies and procedures to investigate allegations of abuse, neglect and exploitation of residents’ property.
Require that facilities establish policies and procedures to ensure reporting of crimes in accordance with Section 1150B of the Social Security Act.

Admission, Transfer and Discharge Rights – Sec. 483.15

The Final Regulations move Section 483.12 to 483.15 and keep the same title. The Final Regulations require that a transfer or discharge be documented in the medical record and that specific information be exchanged with the receiving provider or facility when a resident is transferred. A nursing facility must disclose and provide to a potential resident, before admission, notice of any special characteristics or service limitations at the facility. When discharging a resident because the transfer is necessary for the resident’s safety and welfare, the facility must document the specific resident needs that cannot be met, the attempts to meet those needs and the services available at the new facility that will meet the resident’s needs.

Implementation Timeframe. Except as noted below, Section 483.15 will be implemented in Phase 1, upon the effective date of the final regulations, November 28, 2016.

The subsection requiring that a transfer or discharge be documented in the medical record and that specific information be exchanged with the receiving provider or facility when a resident is transferred will be implemented in Phase 2 by November 28, 2017.

Detailed Summary. The Final Regulations move Section 483.12 to 483.15 but keep the same title “Admission, transfer, and discharge rights.” The new Section 483.15 revises some sections from the old Section 483.12 and adds others:

Nursing facility must disclose and provide to a potential resident, before admission, notice of any special characteristics or service limitations at the facility.
Clarifies that a resident may be discharged when the safety of others is endangered due to the clinical or behavioral status of the resident.
Clarifies that discharge for failure to pay will not apply unless the resident did not submit that necessary paperwork for third party payment or until the third party, including Medicaid and Medicare, denied the claim and the resident refused to pay for his or her stay.
Specifies that a facility may not transfer or discharge a resident while the appeal of the discharge is pending.
When discharging a resident because the transfer is necessary for the resident’s safety and welfare, the facility must document the specific resident needs that cannot be met, the attempts to meet those needs and the services available at the new facility that will meet the resident’s needs.
Requirement that the transferring facility provide necessary clinical information to the new facility.
The facility is required to send a copy of the notice of discharge to the state’s Long-Term Care Ombudsman.
The facility must provide the resident with an orientation regarding his or her transfer in a form and manner that the resident can understand.
If a resident is hospitalized or placed on therapeutic leave without an expectation of returning to the facility, the facility must notify the resident in writing when the determination is made that the resident cannot be readmitted to the facility.

Resident Assessments – Sec. 483.20

The Final Regulations clarify the requirements for coordination of resident assessments and add exceptions to the preadmission screening requirements for individuals with intellectual disabilities. These sections were inadvertently omitted from the initial regulations. This section also now includes a notice requirement for facilities to follow when a person with an intellectual disability has a significant change in mental or physical condition.

Implementation Timeframe. Except as noted below, Section 483.20 will be implemented in Phase 1, upon the effective date of the final regulations, November 28, 2016.

Detailed Summary. The Final Regulations are intended to increase coordination of resident assessments and to move some requirements to the newly created Section 483.21, Comprehensive Person-Centered Care Planning. The revised section includes the following updates.

Clarifies that a resident assessment should include the resident’s strengths, goals, life history and preferences in addition to the resident’s needs.
Requires coordination of the Preadmission Screening and Resident Review (“PASARR”) under Medicaid with the resident’s assessment, care planning and transitions of care.
Requires facilities to notify the state mental health authority or state intellectual disability authority when an individual with intellectual disability experiences a significant change in their physical or mental condition.
Includes exceptions to the preadmission screening requirements for individuals with intellectual disabilities.

Comprehensive Resident-Centered Care Planning – Sec. 483.21

The Final Regulations add a new section devoted to the person-centered care planning. Requirements for care planning and discharge planning were moved to this section from 483.20. Additionally, a new baseline interim care plan is now required to be completed within 48 hours of a resident’s admission.

Implementation Timeframe. Except as noted below, Section 483.21 will be implemented in Phase 1, upon the effective date of the final regulations, November 28, 2016.

Detailed Summary. The Final Regulations provide detailed requirements for person-centered care planning by moving existing requirements and adding concepts and considerations in resident assessment and planning the appropriate care plan. The new section includes the following elements.

Baseline Interim Care Plan (Implemented in Phase 2 – November 28, 2017)

Recognizing current regulations permit up to 21 days for a facility to develop a comprehensive care plan, the Final Regulations require facilities to develop a baseline interim care plan within 48 hours of admission for every resident.
The baseline interim care plan must include, at a minimum, the initial resident goals based on admission orders, the physician orders, dietary orders, therapy and social services and PASARR recommendations.
In the alternative, a facility may complete a comprehensive care plan within 48 hours of admission instead of the baseline interim care plan as long as the comprehensive care plan includes each of the items identified above.

Care Planning

The resident care plan must include any specialized services or specialized rehabilitation services that a facility would provide pursuant to a PASARR recommendation. If a facility disagrees with the findings of the PASARR, it must indicate this disagreement and the reasons for it in the resident’s medical record.
The Final Regulations include a requirement for discharge assessment and planning, including the resident’s desire to return to the community, to be included in the comprehensive care plan.
The IDT responsible for developing the comprehensive care plan is expanded to include “other appropriate staff” to be determined based on the resident’s specific needs. In addition, a nursing aide, a member of the food and nutrition services staff and a social worker will be required on the IDT.
To the extent possible, the resident or the resident representative must be allowed to participate on the IDT for care planning. Should the IDT decide participation by the resident or the resident representative is not practicable, this decision must be documented in the resident’s medical record.
The comprehensive care plan must ensure that the services provided by the facility are culturally competent and trauma-informed. Cultural competency includes language, culture preferences and other cultural concerns applicable to the resident. Trauma-informed approaches should help to minimize triggers and re-traumatization, as well as address the unique care needs of Holocaust survivors and other trauma survivors. (Implemented in Phase 3 – November 28, 2018)

Discharge Planning

Facilities are required to develop and implement an effective discharge planning process that ensures that the discharge goals and needs of each resident are identified. Additionally, facilities will be required to assist residents in selecting other providers by utilizing standardized data sets to the extent the information is available and present the information to the resident and his or her representative in an accessible and understandable format.
A facility must provide the resident with a discharge summary that includes a post-discharge plan of care and document arrangement for follow-up care and any post-discharge medical and non-medical services required. The discharge summary will have to include a reconciliation of all pre-discharge medications, both prescription and non-prescription, in order to ensure residents avoid unnecessary mediations and drug interactions and to assist in transitions of care.
Similar to the comprehensive care planning, CMS will require the facility to allow the resident to assist in the development of the post-discharge plan to the extent possible.

Practical Takeaways

Facilities need to review internal practices and procedures relating to resident rights and discharge planning.
While many of the Final Regulations are revisions to current regulations, facilities should keep in mind that many of the Final Regulations have changes that could impact facility operations.

If you have questions or would like additional information about this topic, please contact:

Todd Selby at 317.977.1440 or tselby@wp.hallrender.com;
Brian Jent at 317.977.1402 or bjent@wp.hallrender.com;
David Bufford at 502.568.9368 or dbufford@wp.hallrender.com;
Sean Fahey at 317.977.1472 or sfahey@wp.hallrender.com; or
Your regular Hall Render attorney.

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