State-Level Opposition To CMS Regulatory Rollbacks For Nursing Homes Grows

September 22, 2019, Maggie Flynn, Skilled Nursing News - The attorneys general from New York, Illinois, Maryland, Michigan, Nevada, and Oregon all jointly pushed back on the delay of regulations for nursing homes, a move that came at the same time as similar criticism by California’s top attorney.

The comment letter was filed September 16, the deadline for submitting comments on the proposed rule delaying certain aspects of Phase 3 of the Requirements of Participation (RoPs), which was announced in July.

The attorneys general argued that residents at skilled nursing facilities would be better protected if the Centers for Medicare & Medicaid Services (CMS) declines to finalize the rule.  The letter included several recommendations to CMS, including:

  • Maintain current rules requiring the full disclosure of residents’ medical providers
  • Maintain or increase the required retention period for nurse staffing data
  • Keep the current regulations related to Quality Assurance and Performance Improvement (QAPI) programs.
  • Keeping the current timeline for Phase 3 regulations

That timeline would involve a deadline of November 28, 2019, for implementing the Phase 3 regulations, including those related to QAPI and the compliance and ethics rules.

CMS itself noted that those two requirements were mandated by statute in 2012 and 2013, and the AGs pointed to the fact that facilities have had a minimum of six years notice of the requirements.  Given the closeness of the deadline, it is reasonable to expect that facilities are either in the process of finalizing preparations for compliance with the rules or have already implemented them, they argued.

“Under these circumstances, providing an additional year for changes that may or may not take affect [sic] would be unnecessary, and would delay the benefit to residents that the additional protections would bring if timely implemented,” they wrote.

California AG Xavier Becerra also filed a comment letter criticizing the delay, arguing that the proposed rule would roll back resident protections and violated the Affordable Care Act (ACA) and the Social Security Act (SSA).

The changes in the proposed rule affect provisions related to the designation and training of the infection preventionist (IP), the QAPI program, and the compliance and ethics program; some of the revisions include reducing the time that facilities have to retain daily nursing staffing data and a revision of the informal dispute resolution process.  CMS is not proposing delays related to the need for an IP, but related to the position’s work requirements.

The proposed revisions stand to help smaller providers, North Shore Healthcare chief clinical officer Dee McCarthy told Skilled Nursing News shortly after the rule was announced — particularly when it comes to the IP role and the removal of a rule requiring operators of five or more buildings to designate a compliance officer and compliance liaison.

“The things they seem to have targeted actually allow us to spend more time on resident care, and less time on completing paperwork that really doesn’t do anything to keep our residents safer or healthier or actually improve quality in the long run,” she said.