CMS Acts to Implement Revised Nursing Home Standards of Care

After delays due to the coronavirus pandemic, the Centers for Medicare & Medicaid Services (CMS) has now issued guidance to implement standards of care for nursing homes that were promulgated in 2016 and were originally scheduled for implementation in 2017 and 2019.[1]  On October 4, 2016, CMS published final regulations revising the Requirements of Participation for nursing facilities.[2]  The revisions to the standards of care were implemented in three phases.  Phase 1 reflected the vast majority of the regulatory requirements, which were identical, or very similar, to existing care standards.  These regulations went into effect in 30 days, November 2016.  Phases 2 and 3, with effective dates of October 2017 and October 2019, respectively, reflected more significant changes to the Requirements.  After COVID-19 delays, CMS has now issued guidance for the Phase 2 and 3 Requirements, with a new effective date of October 24, 2022.  Nursing facilities have had nearly six years, since October 2016, to prepare for these changes.  A CMS Fact Sheet summarizes key changes.[3]  Justice in Aging has prepared a detailed summary of the new guidance, by topic.[4]

Appendix PP to the State Operations Manual, Guidance to Surveyors for Long-Term Care Facilities, provides CMS’s explanation of what regulatory requirements mean, procedures for determining noncompliance, and directions in how to categorize the severity of noncompliance.  The lengthy revisions to the 847-page Appendix PP include multiple changes, which are printed in red italics.  Pages are unnumbered. 

Some key revisions to surveyor guidance for longstanding quality of care and residents’ rights issues include:

• Visitors, §483.10(f)(4), F563 (pp. 27-30) (CMS describes “reasonable clinical and safety restrictions” that may limit visitors during a communicable disease outbreak as well as visitation and illegal substance use)
• Transfer/discharge of residents, §483.15(c), F622 (pp. 176-184) (CMS discusses facility-initiated transfers, resident’s right to remain after Medicare coverage ends, prohibiting discharge for nonpayment while a Medicaid application is pending, emergency transfers to hospitals and resident’s right to return, among other issues)
• Accuracy of resident assessments, §483.20(g), F641 (pp. 211-212) (CMS acknowledges facilities have “potentially misdiagnosed residents with a condition for which antipsychotics are an approved use (e.g., new diagnosis of schizophrenia) which would then exclude the resident from the long-stay antipsychotic quality measure;” directs surveys to determine if the resident assessment is accurate.)
• Supervision/assistance devices, §483.25(d)(2), F689 (pp. 325-327) (CMS addresses safety issues for residents with substance use disorder)
• Nursing services, sufficient staff, §483.35, F725 (pp. 456-461) (CMS confirms that compliance with a state’s minimum staffing requirements may not be sufficient for purposes of the federal requirement; directs surveyors to use payroll-based journal (PBJ) staffing data “to identify concerns with staffing;” confirms that licensed nurses must monitor the aides they supervise; includes interview questions for direct care staff, director of nursing, administrator; directs surveyors to conduct “a thorough investigation” if PBJ data demonstrate the absence of licensed nurses on four days in the previous quarter)

Some key additions to surveyor guidance for new regulatory requirements, added by the 2016 regulations, include

• Reporting reasonable suspicions of a crime, 42 C.F.R. §483.12(b)(5), and responding to allegations of abuse, neglect, exploitation, or mistreatment, §483.12(c), F609 (pp. 144-165)
• Trauma-informed care, §483.25(m), F699 (pp. 418-427)
• Behavioral health services, §483.40, F740 (pp. 481-490) (CMS permits use of behavioral contracts as part of a care plan for residents who can understand them who have an assessed history of mental disorder or substance use disorder, but cautions against abuse and confirms that non-adherence to a behavioral contract “cannot be the sole basis for a denial of admission, a transfer or discharge”)
• Pharmacy services, unnecessary drugs, §483.45(d)( F757), psychotropic drugs, §483.45(c)(3), F758 (pp. 542-572) (CMS confirms that use of psychotropic drugs and other drugs affecting brain activity should not increase when antipsychotic drugs are decreased; suggests referrals about inappropriate prescribing of psychotropic drugs to State Medical Boards or Boards of Nursing)  
• Binding arbitration agreements, §483.70(n), F847, F848 (pp. 680-696) (CMS confirms that facilities must not require resident or representative to sign pre-dispute binding arbitration agreement as a condition of admission of continued stay; stresses the importance of transparency; includes questions for residents, representatives, resident council, family council, staff, state long-term care ombudsman)
• Quality assurance and performance improvement (QAPI) program, §483.75(a)-(g), F865, F866, F867, F868 (pp. 713-733) (CMS authorizes disclosure of QAPI documents under certain circumstances)
• Infection preventionist, §483.80(b), F882 (pp. 774-779) (CMS requires specialized training in infection control required for a facility’s infection preventionist, who is responsible for implementing a facility’s infection prevention and control program)

CMS also revises complaint procedures (Chapter 5, State Operations Manual)[5] and the Psychosocial Outcome Severity Guide.[6]

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[1] CMS, “Revised Long-Term Care Surveyor Guidance: Revisions to Surveyor Guidance for Phases 2 & 3, Arbitration Agreement Requirements, Investigating Complaints & Facility Reported Incidents, and the Psychosocial Outcome Severity Guide,” QSO-22-19-NH (Jun. 29, 2022), https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/revised-long-term-care-surveyor-guidance-revisions-surveyor-guidance-phases-2-3-arbitration 
[2] Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68688 (Oct. 4, 2016), https://www.govinfo.gov/content/pkg/FR-2016-10-04/pdf/2016-23503.pdf 
[3] CMS, “Updated Guidance for Nursing Home Resident Health and Safety” (Fact Sheet, Jun. 29, 2022), https://www.cms.gov/newsroom/fact-sheets/updated-guidance-nursing-home-resident-health-and-safety  
[4] Eric Carlson, Justice in Aging, “Understanding CMS’s New Nursing Facility Guidance” (Jul. 2022), https://justiceinaging.org/wp-content/uploads/2022/07/Understanding-CMSs-New-NF-Guidance-Issue-Brief.pdf 
[5] https://www.cms.gov/files/document/som-chapter-5-complaint-procedures.pdf 
[6] https://www.cms.gov/files/document/psychosocial-outcome-severity-guide.pdf