The Centers for Medicare & Medicaid Services (CMS) has established new requirements for long-term care facilities (LTC) participating in Medicare and Medicaid, the first set of comprehensive revisions to the participation requirements in 25 years. The regulations take effect beginning Nov. 28, 2016, but some requirements will be implemented in phases. Operators of LTC facilities should review the new regulations closely, including 10 aspects that may require significant compliance changes. Deadlines are looming to come into compliance with sweeping changes to the Centers for Medicare & Medicaid Services (CMS) requirements for long-term care facilities (LTC) participating in Medicare and Medicaid. The CMS final rule was published in the Federal Register on Oct. 4, 2016. This is the first set of comprehensive revisions to the participation requirements in 25 years.
CMS reviewed the prior versions of the regulations with the goal of improving safety, quality of life, care and services, as well as to align the rule with current professional standards. The rule finalizes regulations that were proposed on July 16, 2015 (80 Fed. Reg. 42168), for which CMS received more than 9,800 comments. The regulations are effective on Nov. 28, 2016, but various portions of the requirements will be implemented in phases.
The new regulations are lengthy and detailed, and operators of LTC facilities must review them closely. Ten aspects of the rule may require significant compliance changes for LTC operators:6. Pre-Dispute Arbitration Agreements Are Prohibited
In its proposed rule, CMS included a number of specific parameters regarding arbitration agreements, including a requirement that the agreement be explained to the resident and a prohibition stating that the agreement cannot be contained within any other agreement or paperwork. In the final rule, CMS prohibits all pre-dispute arbitration provisions and includes procedural requirements if a resident is asked to sign an arbitration agreement after a dispute has arisen. CMS received a number of comments in response to the proposal regarding arbitration agreements, including a letter signed by 34 senators urging CMS to ban these types of clauses. Another letter signed by 16 state attorneys-general argued that these types of agreements were harmful and should be prohibited. According to CMS, the new ban will “have no legal effect on the enforceability of existing pre-dispute arbitration agreements between LTC facilities and patients, and therefore, we believe that the terms of the [Federal Arbitration Act] are not implicated.” The preamble to the rule also states that “the Secretary, in this final rule, is acting well within her statutory authority, particularly given the concerns raised by commenters over the unfairness of pre-dispute arbitration and the harm these agreements cause LTC facility residents.”