A DEEPER DIVE INTO THE REVISED FEDERAL Nursing HOME REGULATIONS Taking Another Look at Key Sections June 28, 2017 Eric Carlson, Justice in Aging Toby Edelman, Center for Medicare Advocacy Robyn Grant, Consumer Voice Lori Smetanka, Consumer Voice

Agenda Introduction Robyn Grant, Director of Public Policy and Advocacy, Consumer Voice Updates on Regulations Robyn Grant, Director of Public Policy and Advocacy, Consumer Voice Lori Smetanka, Executive Director, Consumer Voice Rehabilitation Services Toby Edelman, Senior Policy Attorney, Center for Medicare Advocacy Visitation Transfer-Discharge Eric Carlson, Directing Attorney, Justice in Aging Return to the Facility Senate Health Care Legislation Q & A Closing

Updates 1. Notice of transfer/discharge to long-term care ombudsman 2. Arbitration 3. CMS request for stakeholder feedback regarding: Grievance process Quality Assurance and Performance Improvement Discharge notices to ombudsmen Any other areas of burden reduction and cost savings to LTC facilities

Regulations Implemented in Three Phases Nov. 28, 2016 – most regulations effective, particularly those that continue existing requirements. Nov. 28, 2017 – additional regulations effective (including behavioral health); Surveyor’s Manual includes new guidance; use of new survey process begins. Nov. 28, 2019 – implementation of new programs such as Quality Assurance and Performance Improvement (QAPI), and Compliance and Ethics Programs.

Rehabilitation Services  

Visitation  

Residents Choose their Visitors Visitation decisions are made by the resident No exceptions that take this right from the resident and give it to another As long as the visit is not imposing on the rights of another resident, the facility cannot place limits on who the resident receives as a visitor Visits can occur when the resident chooses

Immediate Access to the Resident by: Representatives of the Secretary; representatives of the State; a Long-Term Care Ombudsman Program representative; the resident’s individual physician; the resident’s representative (new) Immediate family or other relatives Subject to the resident’s right to deny or withdraw consent

Other Visitors “Restrictions on visitation apply only to those categories of visitors where such restriction is permitted by statute” Applies only to: “Others who are visiting with consent of the resident” – immediate access subject to “reasonable clinical and safety restrictions” “Any entity or individual that provides health, social, legal, or other services” – “reasonable access”

“Reasonable Clinical and Safety Restrictions” Must be based on health (clinical) or safety concerns Facility must have written policies and procedures for visitation that includes restrictions, when limitations may apply, the reasons for clinical and safety restrictions or limitations. Each resident must be informed of any limitation, and also to whom the restrictions apply

Certain restrictions protect the security of all residents, i.e. Keeping the facility locked at night Denying access or providing limited and supervised access to a visitor if the individual has been found to be abusing, exploiting, or coercing a resident “Clinical restrictions to prevent the spread of communicable disease are appropriate” However, facilities must use the least restrictive approach to infection control possible; and isolation should only be used when necessary to control the spread of infections CMS notes that if these practices are put into place, systems must be in place for allowing approved visitors

Transfer-Discharge  

Notice Required Whenever Transfer/Discharge Is “Facility-Initiated” Note that regulatory language does not distinguish between “voluntary” and “involuntary” transfer/discharge. CMS recently issued guidance: CMS Survey & Certification Letter 17-27-NH (May 12, 2017) Generally notice to resident, resident and LTC Ombudsman Program 30 days prior to proposed action. In some situations, less than 30 days allowed – notice “as soon as practicable”

When Is a Transfer/Discharge Resident-Initiated? Resident-initiated when “the resident or, if appropriate, the resident representative has provided verbal or written notice of intent to leave the facility.” Medical record must document this verbal or written notice. “A resident’s expression of a general desire or goal to return home or to the community or elopement of a resident who is cognitively impaired should not be taken as notice of intent to leave the facility.”

What Transfer/Discharge Notice Is Required When Medicare Coverage Is Ending? As discussed, Transfer/Discharge notice must be sent to resident, representative, and ombudsman program if transfer/discharge is “facility-initiated.” Facility should not be able to force out a resident in order to replace him or her with a Medicare-reimbursed resident. Resident should have the right to: Appeal Medicare (or Medicare managed care) determination. Decide whether to stay in facility under Medicaid or private pay, if and when Medicare coverage ends.

Residents Should Be Treated Fairly When Medicare Reimbursement Might Be Ending Think of how a resident-centered facility would handle this situation.

Don’t Let Facilities Push Residents Out Through Informal Means Default should be to provide notice, unless initiation by resident is clear.

Two New Provisions to Be Emphasized No transfer or discharge while appeal is pending. 42 CFR 483.15(c)(1)(ii). No transfer/discharge for nonpayment if the resident has submitted all necessary paperwork for third party payment, e.g., Medicaid application. 42 CFR 483.15(c)(1)(i)(E).

Return to the Facility  

Notice of Bed Hold Rights Applies in case of hospitalization or visit with family or friends (“therapeutic leave”). Notice at two times: Before the resident leaves – usually this is during admission. “At the time of transfer”

What happens if: Hospital stay exceeds bed hold period, No bed hold is available under state law, or No bed hold was requested?

Residents must be permitted to return to the facility if they: Need nursing facility care Are eligible for payment by: Medicaid or Medicare

Which Room? Previous room, if available. Next available semi-private room.

What happens if the resident doesn’t pay to hold the bed or doesn’t sign the bed hold agreement? What happens if no bed is available?

Facility refusal to allow resident to return Regulation 42 C.F.R. §483.15(e)(1)(ii). “If the facility … determines that a resident who was transferred with an expectation of returning to the facility cannot return to the facility, the facility must comply with [transfer-discharge procedures] as they apply to discharges.”

Facility refusal to allow resident to return Preamble 81 Federal Register, 68,688, 68,735 (2016). “At the time a facility determines that a resident cannot be readmitted to the facility, the resident is effectively discharged from the facility. We have revised our language to acknowledge this. Specifically, we use the term "return" in-stead of "readmit" and we require facilities, at the time they determine a resident cannot return to the facility, to comply with the requirements of paragraph § 483.15(c) as they pertain to discharges.”

What can you do if the nursing home refuses to permit the resident to return? What if the nursing home says they don’t have to permit the resident to return because the resident is a danger to other residents or staff? What if the resident has injured other residents?

Senate Health Care Legislation  

How Would Senate Bill Affect Nursing Facility Residents? Steep cutbacks in Medicaid. Elimination by 2024 of Medicaid “expansion” coverage for persons under age 65 who had obtained coverage through Affordable Care Act. Tying federal Medicaid funding to per-person cap.

Why Is Per Capita Cap Bad for Older Americans? Care often would be limited by funding, rather than medical necessity. Inflation rates in the bill are too low, particularly from 2025 and thereafter when funding would be set to overall consumer price index. And cap system is punitive even if inflationary rates would be correct.

Funding for Older Americans Is Particularly At-Risk Medicaid is the primary payor for long-term services and supports. 62% of nursing facility residents are covered under Medicaid. Long-term services and supports are expensive.

Services for Older Adults Are Vulnerable Congressional Budget Office (CBO) finds reduction of federal Medicaid spending by $772 billion over ten years. Over two-thirds of Medicaid funding for older adults is “optional.” Optional services, e.g., home and community-based services, or Optional coverage groups. Most nursing facility residents are in an optional coverage group, because they are not in the mandatory eligibility group of persons receiving Supplemental Security Income.

Can We Relax Now that Senate Has Delayed Vote?

What If Senate Republicans Add More Money for Opioid Treatment What If Senate Republicans Add More Money for Opioid Treatment? Or Health Savings Accounts?

Call Your Senators Capitol Switchboard at (202) 224-3121 Some good points to make: Medicaid is the largest single payer for long-term care in our nation. Medicaid is the ONLY way most people can afford long-term care. Medicaid allows older adults and people with disabilities to get the services and supports they need every day.

Question and Answer

Contact Information Eric Carlson ecarlson@justiceinaging.org www.justiceinaging.org Toby Edelman tedelman@MedicareAdvocacy.org www.medicareadvocacy.org Robyn Grant rgrant@theconsumervoice.org Lori Smetanka lsmetanka@theconsumervoice.org www.theconsumervoice.org