Centers for Medicare & Medicaid Services ("CMS") Issues Final Rule for Long-Term Care Facility Requirements

Posted in December 2016 on 12/14/2016

Centers for Medicare & Medicaid Services ("CMS") Issues Final Rule for Long-Term Care Facility Requirements (Download a PDF of this article)

In late September 2016, CMS issued an extensive rule revising the requirements for Long-Term Care facilities participating in Medicare and/or Medicaid. The new requirements are effective November 28, but they are to be implemented in stages. The Phase 1 regulations must be implemented by November 28, 2016, and Phases 2 and 3 must be implemented by November 28, 2017 and November 28, 2019, respectively.

Perhaps one of the most discussed changes in the rule is CMS’s ban on binding arbitration agreements.  Under the new rule, Long-Term Care facilities would be prohibited from entering agreements for binding arbitration with a resident or their representative until after a dispute arises between the parties.  If the facility seeks to enter an arbitration agreement after the dispute arises, the rule would require certain assurances for the protection of the resident.  Practically, then, if there are any disputes between the facility and the resident, they would need to be brought publicly in court rather than in the more confidential setting of arbitration unless the parties agree otherwise once the dispute has already manifested.  Although this part of the rule was set to go into effect on November 28, 2016, a Judge from a United States District Court in Mississippi granted an injunction preventing this part of the rule from taking effect. Accordingly, at this point, nursing facilities can (and should) continue to enter into pre-dispute arbitration agreements with residents. However, the Court could ultimately determine that ban of such agreements is legal and thus, this part of the rule may become effective at a later date.

Because this is the first time CMS has extensively updated the requirements since 1991, the changes are extensive to address the numerous changes that have occurred in the health care landscape over the last 25 years.  The final rule makes changes to existing rules regarding resident rights, abuse, neglect and exploitation, admission, transfer and discharge, resident assessments, quality of care, quality of life, physician services, nursing services, behavioral health services, pharmacy services, dental services, food and nutrition services, specialized rehabilitative services, administration, quality assurance and performance improvement, infection control, and physical environment.  Additionally, the final rule added new sections on Comprehensive Person-Centered Care Planning, laboratory, radiology and other diagnostic services, compliance and ethics programs and training requirements.

The rule and CMS’s response to the various comments received can be found at: https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-23503.pdf. It is extremely important for every Long-Term Care facility to review, understand and plan for the changes necessary to comply with the final rule. 

If you would like to discuss the impact of the ban on arbitration agreements and/or any of the other parts of the new rule, please contact Becki Brommel or any BrownWinick attorney in the Health Law Practice Group.

Rebecca A. Brommel is a member of BrownWinick, and currently serves as the firm’s Chair of the Marketing Committee. Becki assists clients in the area of litigation, administrative law and health law. You can reach Becki at (515) 242-2452 or brommel@brownwinick.com.