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An update on President Biden’s initiatives for long-term care

President Joe Biden gave his State of the Union address on March 1, 2022. Markedly, he announced his intention to “set higher standards for nursing homes” to “make sure your loved ones get the care they deserve and expect.”  

President Biden focused on four main objectives in reference to long-term care facilities and providers: 

  1. Establish a new minimum staffing ratio to protect residents
  2. Reduce room overcrowding
  3. Strengthen value-based payment (“VBP”) to ensure taxpayers pay for quality care
  4. Reinforce safeguards against unnecessary medications and treatments 

The Centers for Medicare & Medicaid Services (“CMS”) has released new and updated guidance and requirements in furtherance of President Biden’s goals. This column focuses on two of these objections: room overcrowding and unnecessary medications and treatments.

Reduce room overcrowding

In CMS’ Revised Long-Term Care Surveyor Guidance issued June 29, 2022, the agency urged providers to consider making changes to their physical environment to allow for a maximum of double occupancy in each room. Additionally, CMS encouraged facilities to explore ways in which they can allow for more single-occupancy rooms for residents. 

CMS detailed several advantages to limiting rooms to double or single occupancy, including:

  1. Allowing for more resident privacy for daily activities such as dressing and visiting with friends and family (§483.10(h)).
  2. Encouraging a homelike environment (§483.10(i)).
  3. Improving infection control and prevention by reducing the risks associated with multiple residents in the same room and making it easier to isolate or quarantine residents who are infectious. 

While families may certainly be pleased with this recommendation, there are obvious concerns about a facility’s ability to make such a change.  

Changes to the physical environment would require physical plant changes if facilities intend to maintain current occupancy levels. Otherwise, more single occupancy rooms without expanding the physical plant will require resources to be adjusted, occupancy to decrease, and as a result, facility revenue will decline, taking away from other resident resources. Any decline in revenue for an industry already facing higher costs for labor, supplies and other expenses will almost certainly impact the quality of care. 

Reinforce safeguards against unnecessary medications and treatments

The updates also contain improvements to CMS guidance for mental health and substance use disorders and builds upon the agency’s Behavioral Health Strategy to better meet the unique needs of LTC facility residents with mental health and substance use challenges. CMS also clarified the minimum level of knowledge and skills of facility staff to ensure that the policies and practices do not conflict with resident rights or other participation requirements.

In recently announced updated rules of participation, CMS addresses unnecessary use of non-psychotropic drugs and antipsychotics, championing gradual dose reduction for residents that may have come into the setting on such medications. CMS further addresses the rights and available services for residents with mental health needs, including a focus on situations where practitioners or facilities may have inaccurately diagnosed or coded a resident.  

Specifically, CMS notes in updated guidance to surveyors that CMS is aware of situations where practitioners have potentially misdiagnosed residents with a condition for which antipsychotics are an approved use (e.g., new diagnosis of schizophrenia), which would then exclude the resident from the long-stay antipsychotic quality measure. 

For these situations, CMS advises that this practice may require referrals by the facility and/or the survey team to State Medical Boards or Boards of Nursing. As such, facilities and their staff need to be on high alert that surveyors will be paying special attention to these practices.

Conclusion

For a fact sheet on the new and updated guidance for nursing home resident health and safety, please visit the CMS website.  

The online SOM will be updated on or after Oct. 24, 2022, when these changes go into effect.  With these ongoing changes and updates to an already heavily regulated industry, there are sure to be many questions. It is advised that long-term care facility leadership work closely with legal counsel to interpret these updates and regulations to ensure compliance.

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Angela Rinehart is an associate attorney in Stoll Keenon Ogden’s (SKO) Health Care and Litigation groups. She joined the firm in 2022 following its merger with Katz Korin Cunningham PC. Contact her at angela.rinehart@skofirm.com.

Norris Cunningham is a member of Stoll Keenon Ogden’s (SKO) Indianapolis office specializing in healthcare. He co-founded Katz Korin Cunningham PC, which merged with SKO in 2022. Contact him at norris.cunningham@skofirm.com

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This article first appeared in the July 25, 2022 issue of McKnight’s Long-Term Care News. The article appears on their website.