CMS to Propose Revising the Nursing Home Requirements of Participation

In October 2017, CMS announced its new “Patients over Paperwork” initiative.[1] The objective of the initiative is to adhere to the Trump Administration’s Executive Order (EO 13771), which tasked agencies with cutting regulations.[2] Specifically, the purported intent of the initiative is to put patients first by reducing the so-called “burdens” on the health care industry. By all indications, however, the “Patients over Paperwork” initiative appears to be a Trump Administration Trojan horse – deregulation hidden in hollow patient-centered messaging.

The policy shift at CMS has already had a profound impact on nursing home residents. In less than a year, CMS placed an 18-month moratorium on eight vital minimum standards of care, issued guidance to limit financial penalties for resident harm, and proposed rolling back a ban on pre-dispute arbitrations as a condition of admission.[3] As one New York Times article correctly notes, “[t]he shift in the Medicare program’s penalty protocols was requested by the nursing home industry.”[4]

In March 2017, one leading nursing home industry group sent a letter to then HHS Secretary Tom Price that contained a wish list of regulatory changes.[5] The letter, in part, asked CMS to reduce the use of civil money penalties (CMPs) and modify the phase-in of the revised Requirements of Participation.[6] CMS appears to be listening to the nursing home industry rather than nursing home residents. In a January 2018 newsletter, CMS even spoke directly to the nursing home industry:

You Said: Civil Monetary Penalties (CMPs) are not applied consistently or fairly to nursing homes found out of compliance with certain Requirements of Participation.

We Heard You: To increase national consistency in imposing CMPs, CMS revised the CMS Analytic Tool that is used to determine the appropriate CMP amount based on the citation. Specifically, CMS reduced the penalty amounts for non-compliance with Requirements of Participation by moving to a per-instance CMP instead of per-day CMPs for past noncompliance that existed before the current survey and does not continue.[7]

Unfortunately, it appears that CMS is just getting started. According to the Unified Agenda, which provides a look at upcoming regulatory actions, CMS will be proposing to revise those Requirements that it “has identified as unnecessary, obsolete, or excessively burdensome on facilities.”[8] Yet, even CMS is uncertain about what revising the Requirements will mean for providers and residents. In the Unified Agenda, CMS admits that “[o]ur estimates of the effects of this regulation are subject to significant uncertainty. While we are confident that these reforms would provide flexibilities to facilities that will yield major cost savings, there are uncertainties about the magnitude of these effects.”[9] Despite such uncertainty to resident health and safety, CMS does appear to be certain about one thing: nursing home providers will see “major cost savings.”[10]

• To access the Unified Agenda, please visit: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201710&RIN=0938-AT36.
• To read CMS’s January newsletter, please visit: https://www.cms.gov/Outreach-and-Education/Outreach/Partnerships/Downloads/JanuaryPoPNewsletter011818.pdf.

D. Valanejad, January 24, 2018