On April 19th, 2021 Governor Andrew Cuomo (D) signed the state’s Budget for Health and Mental Hygiene (A3007C/S2507C), which includes several significant changes impacting the state’s nursing home operators and investors. Most notably, the legislation’s principal provisions require reinvestment of revenue into each nursing home facility and a cap on the profit the facility can

Pennsylvania Attorney General Josh Shapiro announced on May 12, 2020, that his office is investigating several nursing homes in the Commonwealth for neglect of patients and residents: “We will hold nursing facilities and caretakers criminally accountable if they fail to properly provide care to our loved ones … we will not tolerate those who mistreat our seniors and break the law.” Shapiro has also launched a public portal for citizens to email reports of neglect in nursing home communities. As is the case in many states, nursing home patients make up the majority of the deaths associated with COVID-19 in Pennsylvania. Just over 2,611 nursing home residents and staff have died from COVID-19 in Pennsylvania, comprising nearly 70 percent of the 3,800 total deaths reported in the Commonwealth as of the date of the press release.

Attorney General Shapiro is not alone in his effort to take a closer look at nursing home facilities and caregivers, even while lobbying groups for health care providers and nursing homes push for broad immunity from coronavirus-related lawsuits. In late April, New York Attorney General Letitia James released a statement saying that her office’s Medicaid Fraud Control Unit continues to investigate allegations of abuse and neglect in nursing homes. James’ office similarly launched a nursing home abuse hotline for residents, families, and members of the public to report alleged complaints at the facilities. Specifically, Attorney General James is investigating a Queens adult care facility that allegedly failed to protect residents from COVID-19 and misled families about its spread. Residents of that same facility are now suing in federal court over similar allegations. State attorneys general are increasingly active on this issue and will be pursuing nursing homes and long-term care facilities through various angles including Medicaid fraud, consumer protection, and false advertising.

Continue Reading Nursing homes face increased scrutiny by attorneys general during COVID-19

The Centers for Medicare & Medicaid Services (CMS) has published its final rule updating the Medicare skilled nursing facility (SNF) prospective payment system (PPS) for fiscal year (FY) 2020, which begins October 1, 2019.  CMS expects SNF PPS payments to increase by 2.4%, or $851 million, in FY 2020, down from the $887 million increase

On July 18, 2019, the Centers for Medicare & Medicaid Services (CMS) issued a final rule repealing the agency’s ban on the use of pre-dispute arbitration agreements in the long-term care (LTC) setting.1 This final rule follows CMS’s proposed rule, issued on June 8, 2017, reversing course on CMS’s initial ban on pre-dispute, binding arbitration agreements in October 2016.2 (See CMS Reverses Course in Pre-Dispute Arbitration Agreement Ban for additional background and analysis on the June 8, 2017, proposed rule.)

As you may recall, CMS’s proposed rule offered to eliminate entirely the prohibition on pre-dispute binding arbitration agreements and provided no limitations on the use of arbitration agreements as a condition of admission (or continuing admission) to a LTC facility, provided certain “transparency” requirements were met. CMS received over 1,000 comments in response to the proposed rule and, in turn, delivered a final rule that makes concessions for both the proponents of a ban on pre-dispute arbitration agreements and the opponents seeking to preserve the legal right of the LTC facilities to freely contract with their residents. CMS explained in the final rule: “Although we are not finalizing a prohibition on pre-dispute, binding arbitration agreements, we believe that the requirements we are finalizing in this rule will provide the protections residents and their representatives will need to avoid being compelled to arbitrate disputes with LTC facilities without voluntarily and knowingly choosing to do so.”3

Continue Reading CMS Issues Final Rule Repealing the Prohibition on the Use of Pre-Dispute Binding Arbitration Agreements

The Centers for Medicare & Medicaid Services (CMS) has proposed simplifying and streamlining long-term care (LTC) facility rules and survey processes to “increase provider flexibility and reduce excessively burdensome regulations, while also allowing facilities to focus on providing high-quality healthcare to their residents.”  In addition to numerous other provisions, CMS proposes the following changes that

As part of the Trump Administration’s fall regulatory agenda, the Department of Health and Human Services (HHS) emphasizes its commitment to “reducing and streamlining its regulations and improving the transparency, flexibility, and accountability of its regulatory processes.”  One of the specific deregulatory initiatives noted is a future proposed rule to remove outdated Medicare and

The Trump Administration has formally withdrawn a number of pending Department of Health and Human Services (HHS) proposals that never reached the final rule stage. This includes:  a controversial Part Medicare B drug payment innovation model; a proposal to protect same sex marriages in certain Medicare and Medicaid facilities (predating a related Supreme Court decision); a proposal to impose more stringent Medicare requirements related to the provision of orthotics and prosthetics; and a proposed rule regarding certification of compliance for health plans.  Each of the rules is withdrawn as of October 4, 2017.  Specifically:
Continue Reading Trump Administration Shelves Additional Obama Medicare/Health Plan Proposals

CMS has made numerous technical and typographical corrections to its October 4, 2016 final rule revising the requirements that long-term care facilities must meet to participate in the Medicare and Medicaid programs. CMS notes that the corrections are consistent with the policy discussion in the final rule and do not result in substantive policy changes.  

CMS is requesting public input on policy options it can consider to accelerate the provision of home and community-based services (HCBS) to Medicaid beneficiaries.  Note that while supporting increased availability of quality HCBS services has been a priority for the Obama Administration, it is unclear what priority future HHS and CMS leadership in the

In response to concerns about potential future shortages of direct-care workers to provide hands-on long-term services and supports (LTSS), the Government Accountability Office (GAO) has issued a report examining federal and state data available on the paid direct-care workforce (e.g., home health aides, psychiatric aides, nursing assistants, and personal care aides).  While a variety of

On September 28, 2016, the Centers for Medicare & Medicaid Services (CMS) released a highly-anticipated final rule to strengthen requirements that long-term care (LTC) facilities must meet to participate in the Medicare and Medicaid programs.  The sweeping rule – more than 700 pages – is intended to improve the safety, quality, and effectiveness of care delivered to facility residents.  According to CMS, the final rule reflects nearly 10,000 public comments on the July 16, 2015 proposed rule.  CMS adopted numerous changes from the proposed rule, including various revisions to staffing and training requirements, care planning rules, infection prevention, and control program provisions.
Continue Reading CMS Finalizes Major Changes to Medicare/Medicaid Requirements for Long-Term Care Facilities

The Centers for Medicare & Medicaid Services (CMS) has released a long-awaited final rule establishing emergency preparedness requirements for Medicare- and Medicaid-participating providers and suppliers to ensure that they can meet the needs of patients and residents during emergency situations, both natural and man-made. According to CMS, the final requirements “establish a comprehensive, consistent, flexible, and dynamic regulatory approach to emergency preparedness and response that incorporates the lessons learned from the past, combined with the proven best practices of the present.”  CMS projects that compliance with the rule will cost $373 million in the first year, with subsequent annual costs of approximately $25 million.

The new requirements apply to 17 provider types (with certain variations): hospitals; critical access hospitals (CAHs); long-term care (LTC) facilities; psychiatric residential treatment facilities; intermediate care facilities for individuals with intellectual disabilities; religious nonmedical health care institutions; transplant centers; hospices; ambulatory surgical centers; Program for the All-inclusive Care for the Elderly (PACE) organizations; home health agencies; comprehensive outpatient rehabilitation facilities; community mental health centers; organ procurement organizations; clinics, rehabilitation, and therapy providers; rural health clinics/federally qualified health clinics; and end-stage renal disease providers.

The sweeping final rule (the advance version spans 651 pages) covers four aspects of emergency preparedness:
Continue Reading CMS Finalizes Emergency Preparedness Requirements for Medicare/Medicaid Providers

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) has issued new guidance to help long-term care facilities comply with anti-discrimination obligations when they administer the Minimum Data Set (MDS) patient assessment tool so that the facilities’ residents receive care in the most integrated setting appropriate to their needs.

Those obligations arise under Section 504 of the Rehabilitation Act (29 U.S.C. § 701 et seq.) (Section 504) and the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) (ADA), which prohibit long-term care facilities receiving federal financial assistance from discriminating against individuals based on disability.  The unnecessary placement of residents in an inpatient setting when they could live in a more integrated setting may constitute discrimination under Section 504 and the ADA, as interpreted by the U.S. Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999).

OCR’s guidance, issued May 20, 2016, includes recommendations concerning MDS administration. OCR issued the guidance after finding that long-term care facilities have misinterpreted certain required questions when administering the MDS to their residents, namely – MDS Section Q, questions Q0400, Q0500 and Q0600.  Those questions, as well as others in Section Q of the MDS, are intended to ensure that long-term care facilities provide all residents with the opportunity to learn about home and community-based services.  The guidance sets forth detailed instructions concerning how operators should answer each of the three questions.  According to OCR, proper administration of these questions is critical to assisting residents to receive services in the most integrated setting.
Continue Reading HHS Office of Civil Rights Releases Guidance for Long-Term Care Facilities Using the Minimum Data Set to Facilitate Opportunities to Live in the Most Integrated Setting

On May 4, 2016, CMS is publishing a final rule amending fire safety standards applicable to the following types of Medicare- and Medicaid-participating health care facilities: hospitals, critical access hospitals, long-term care facilities, intermediate care facilities for individuals with intellectual disabilities (ICF-IIDs), ambulatory surgery centers (ASCs), hospices that provide inpatient services, religious nonmedical health care institutions, and programs of all-inclusive care for the elderly facilities.  As part of this significant update to the current standards, CMS is adopting the National Fire Protection Association’s (NFPA) 2012 edition of the Life Safety Code (LSC) and provisions of the 2012 edition of the NFPA Health Care Facilities Code.  In addition to promoting patient safety and health, CMS contends that “adopting the 2012 LSC would simplify and modernize the construction and renovation process for affected health care providers and suppliers, reduce compliance-related burdens, and allow for more resources to be used for patient care.”  Nevertheless, CMS estimates that the rule will cost $95 million over 12 years, with $18 million in costs during the first year of implementation, $12 million annually for years 2 and 3 of implementation, and $6 million annually for years 4-12.  The greatest costs are associated with a requirement that high-rise buildings containing health care occupancies to be protected by automatic sprinkler systems; facilities that are not already required to do so will have 12 years from publication to comply with this requirement.

The rule addresses numerous other fire/health safety requirements, including the following:

Continue Reading CMS Finalizes Updated Fire Safety Standards for Health Care Facilities

Several Congressional committees have held hearings recently on health policy issues, including:

  • A House Energy and Commerce Health Subcommittee hearing on the Medicaid and CHIP Federal Medical Assistance Percentage formula.
  • House Ways and Means Committee, Senate Finance Committee, and Energy and Commerce Committee hearings on President Obama’s proposed FY 2017 HHS budget request.
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The HHS Office of Inspector General (OIG) has issued an interim evaluation report on an Affordable Care Act (ACA) program that provides grants to states to implement background check programs for prospective long-term care employees.  According to OIG, 25 states currently are participating in the program at different stages (for instance, some have not yet

On September 15, 2015, CMS is publishing a notice extending by 30 days the comment period for its July 16, 2015 proposed rule entitled “Reform of Requirements for Long-Term Care Facilities.”  Specifically, the comment period has been extended from September 14, 2015 until October 14, 2015.  CMS notes that it is taking this

On July 13, 2015, CMS issued a much-anticipated proposed rule seeking to consolidate the long-term care (LTC) facility participation requirements for the Medicare and Medicaid programs. This major proposal marks the first comprehensive changes to the LTC conditions of participation since 1991. As noted by CMS, the revisions are designed to align with current

CMS has released guidance for long term care (LTC) facilities, including nursing facilities and skilled nursing facilities, on beneficiary disenrollments. According to the guidance, “CMS continues to see an unacceptable practice of LTC facilities disenrolling beneficiaries from Medicare Advantage prescription drug plans (MAPDs) and enrolling them into stand-alone drug plans (PDPs) without the beneficiary’s