On March 1, 2022, President Biden outlined his plan to increase the quality of patient care, resident safety, regulations, fines and ownership transparency in skilled nursing care during his State of the Union address.
The day before, on February 28, 2022, President Biden released a fact sheet titled “FACT SHEET: Protecting Seniors and People with Disabilities by Improving Safety and Quality of Care in the Nation’s Nursing Homes” (“White House Fact Sheet”) that outlines a set of reforms to be developed by and implemented through the Department of Health and Human Services (“HHS”) that are designed with the goal to improve the safety and quality of nursing home care, increase provider accountability for nursing home resident care and make the skilled nursing ownership more transparent.
The White House Fact Sheet detailed that more than 1.4 million people live in over 15,500 Medicare and Medicaid-certified nursing homes. The White House Fact Sheet also provides that, in the past two years, over 200,000 residents and staff in long-term care facilities have died from COVID.
The three key reform areas in the White House Fact Sheet include:
STAFFING AND RESIDENT CARE
Establish a Minimum Nursing Home Staffing Requirement
CMS plans to propose minimum standards for staffing adequacy that nursing homes must meet. CMS will conduct a new research study to determine the level and type of staffing needed to ensure safe and quality care and will issue proposed rules within one year.
Adequately Fund Inspection Activities
The White House wants to hold nursing homes accountable for their performance through the requirement of a robust compliance program. Elements of a robust program would include that it has adequate funding to perform inspections and that imposes meaningful penalties when deficiencies are found. President Biden will call on Congress to provide almost $500 million to CMS, a nearly 25% increase, to support health and safety inspections at nursing homes.
Increased Scrutiny on More of the Poorest Performers
CMS’s Special Focus Facility (“SFF”) program identifies the poorest-performing nursing homes in the country for increased scrutiny in an effort to immediately improve the care they deliver. The SFF program will be overhauled to more quickly improve care for the affected residents, including changes that will make its requirements tougher and more impactful. CMS will also make changes that allow the program to scrutinize more facilities by moving facilities through the program more quickly. Facilities that fail to improve will face increasingly larger enforcement actions, including termination from participation in Medicare and Medicaid.
Provide Technical Assistance to Nursing Homes to Help them Improve
CMS currently contracts with Quality Improvement Organizations that help providers across the health care spectrum make meaningful quality of care improvements. CMS will ensure that improving nursing home care is a core mission for these organizations and will explore pathways to expand on-demand trainings and information sharing around best practices.
Enhance Nursing Home Care Compare
CMS plans to implement several initiatives to improve the CMS website “Care Compare.” In the future, Care Compare will display whether a facility is meeting these minimum staffing requirements. CMS intends that ratings more closely reflect data that is verifiable, rather than self-reported, and will hold nursing homes accountable for providing inaccurate information.
Ensure Nurse Aide Training Is Affordable
CMS intends to establish new requirements to ensure nurse aide trainees are notified about their potential entitlement to training reimbursement upon employment.
Create National Nursing Career Pathways Campaign
CMS, in collaboration with the Department of Labor, plans to work with external entities, including training intermediaries, registered apprenticeship programs, labor-management training programs and labor unions, to conduct a nationwide campaign to recruit, train, retain and transition workers into long-term care careers.
Continued COVID Testing, Vaccines and Boosters
HHS will continue to support COVID testing as a key mitigation strategy for residents and the staff. HHS will also continue to promote access to these vaccine clinics and efforts to incentivize vaccinations through provider quality payment programs.
On-Site Infection Preventionists
CMS will clarify and increase the standards for nursing homes on the level of staffing facilities need for on-site infection prevention employees.
Emergency Preparedness
CMS intends to examine and consider changes to nursing home emergency preparedness requirements.
Reinforce Safeguards against Unnecessary Medications and Treatments
CMS plans to launch a new effort to identify problematic diagnoses and refocus efforts to continue to bring down the inappropriate use of antipsychotic medications.
FINES AND FINANCIAL IMPACT
Strengthen the Skilled Nursing Facility (“SNF”) Value-Based Purchasing (“VBP”) Program
The SNF-VBP program awards incentive funding to facilities based on quality performance. CMS has begun to measure and publish staff turnover and weekend staffing levels, metrics that closely align with the quality of care provided in a nursing home. CMS intends to propose new payment changes based on staffing adequacy, the resident experience and how providers retain staff.
Expand Financial Penalties and Other Enforcement Sanctions
President Biden called on Congress to raise the dollar limit on per-instance financial penalties levied on poor-performing providers, from $21,000 to $1,000,000. CMS will expand the instances in which it takes enforcement actions against poor-performing facilities based on desk reviews of data submissions, which will be performed in addition to on-site inspections. In July 2021, CMS rescinded rules that lowered penalty amounts for deficiencies by imposing only a one-time fine, instead of per-day fines. CMS intends to review making per-day penalties the default penalty for non-compliance. CMS will also use data, predictive analytics and other information processing tools to improve enforcement.
OWNERSHIP TRANSPARENCY
Increase Accountability for Chain Owners of Substandard Facilities
President Biden asked Congress to give CMS new authority to require minimum corporate competency to participate in Medicare and Medicaid programs, enabling CMS to prohibit an individual or entity from obtaining a Medicare or Medicaid provider agreement for a nursing home (new or existing) based on the Medicare compliance history of their other owned or operated facilities (previous or existing). President Biden also called on Congress to expand CMS enforcement authority at the ownership level, enabling CMS to impose enforcement actions on the owners and operators of facilities even after they close a facility, as well as on owners or operators that provide substandard and noncompliant care in some facilities, while still owning others.
Ownership Transparency
CMS plans to create a new database that will track and identify owners and operators across states to highlight previous problems with promoting resident health and safety. This registry will use information collected through provider enrollment and health and safety inspections to provide more information about prospective owners and operators to states.
Improve Transparency of Facility Ownership and Finances
CMS will implement Affordable Care Act requirements regarding transparency in corporate ownership of nursing homes, including by collecting and publicly reporting more robust corporate ownership and operating data. CMS also plans to make this information easier to find on the Nursing Home Care Compare website.
Studying the Impact of Private Equity in Skilled Nursing
HHS will examine the role of private equity, real estate investment trusts and other investment ownership in the nursing home sector.
PRACTICAL TAKEAWAYS
- These proposals to improve nursing home care and safety have not been released in regulation or in revised laws by Congress.
- The proposals provide another tool to help improve care and identify possible areas of future enforcement focus.
- Nursing homes should always be reviewing and reconsidering their policies and procedures as providers face increased regulation.
If you have questions or would like additional information about this topic, please contact:
- Sean Fahey at (317) 977-1472 or sfahey@wp.hallrender.com;
- Brian Jent at (317) 977-1402 or bjent@wp.hallrender.com; or
- Your regular Hall Render attorney.
More information about Hall Render’s Post-Acute and Long-Term Care services can be found here.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
