CMS Reopens Public Comment Period for Proposed Revisions to the Nursing Home Requirements of Participation

On July 16, 2015, the Centers for Medicare & Medicaid Services (CMS) published proposed rules to revise the nursing home Requirements of Participation (RoPs) – the federal rules that govern the standards of care that facilities must meet in order to participate in the Medicare or Medicaid programs, or both.[1]  At the request of many organizations, including the Center for Medicare Advocacy, CMS re-opened the 60-day public comment period.  The September 15 notice re-opening the comment period gives commenters an additional 30 days to submit comments.[2]  Comments must now be submitted by October 14, 2015.

In the September 15 notice, CMS describes the proposed rules as “updating obsolete language, improving clarity, addressing ongoing healthcare priorities, and implementing certain Affordable Care Act provisions,. . . [and] reducing procedural burdens on providers.”[3] 

The Center’s initial review raised a number of serious concerns about the proposed rules.[4]  The most serious concern was, and remains, the failure of the proposed rules to mandate specific nurse staffing standards.  Many studies over many years have documented the understaffing of nursing homes nationwide.  Without sufficient numbers of well-trained, well-supervised, and well-compensated registered nurses and certified nurse assistants (CNAs), facilities are unable to provide residents with the care they need.

Other key concerns in the proposed rules are:

• The downgrading of Quality of Life requirements (by scattering them throughout the proposed rules among other regulatory areas and by taking only activities from the current Quality of Life RoP and adding it to the new combined Quality of Care and Quality of Life RoP);
• The revision of  the Quality of Care RoP to eliminate (in some instances) a key statutory expectation that a resident not decline unless there is a medical reason specific to that individual, and to move certain specific requirements, such as drugs, to other RoPs, making it impossible to find all standards for care in a single location;
• The long delays and confusion that will inevitably follow from reorganizing the RoPs, due to the need to revise the survey protocol and train surveyors in its use.

There are positive aspects to the proposed rules, including new requirements that:

• A baseline care plan be completed within 48 hours of a resident’s admission;
• The interdisciplinary care planning team include a CNA responsible for the care of the resident and a member of both the social services and food and nutrition departments.

The Center has a preliminary draft available at https://www.medicareadvocacy.org/draft-comments-medicare-and-medicaid-programs-reform-of-requirements-for-long-term-care-facilities/. We will continue to revise our comments and will submit them to CMS by the October 14 deadline.  Those interested in submitting their own comments should feel free to use these draft comments as a model.