3 things to know about CMS’s final long-term care rule

CMS has finalized its rule updating requirements for long-term care facilities participating in Medicare and Medicaid, the first such update since 1991.

The rule will have wide-ranging implications, including on the ability of facilities to being sued, while some provisions in the proposed rule were stripped out based on the reported 10,000 comments received by the agency.

Among the major changes:

1. Mandatory arbitration in patient harm cases is banned

Patients have been required by some facilities to sign binding arbitration agreements before being admitted, preventing them or their families from suing facilities in cases where a patient may have been mistreated. This was often to the detriment of the patient, with a 2009 study from nursing home advocates the American Health Care Association (ACHA) finding the average awards were 35 percent lower in arbitration than in courts.

The group has been opposed to the ban and hinted it may try to fight its inclusion in the rule.

“AHCA is extremely disappointed that CMS included in the final rule a provision banning all pre-dispute arbitration agreements,” ACHA CEO and President Mark Parkinson said in a statement. “That provision clearly exceeds CMS’s statutory authority and is wholly unnecessary to protect residents’ health and safety. AHCA is considering the appropriate steps for it to take in light of this unjustified action by CMS.”

The ban won’t apply to existing agreements.

Parts of the rule are being phased in over several years, but the ban on new mandatory arbitration contracts will go into effect relatively quickly on Nov. 28.

2. More planning and training will be required

Much of the rule deals with how facilities train their staff and plan to care for residents. For example, nurse aides will be required to be trained on dealing with dementia patients and preventing elder abuse, as well as requiring facilities to help residents with certain activities, like voting.

For planning, the rule requires facilities must “develop a comprehensive, person-centered care plan” for resident within 48 hours of being admitted, with nurse aides and dietary assistant contributing to the plan.

3. The changes won’t come cheap

CMS estimates the cost of the rule on nursing homes nationwide will be $831 million in its first year, then $736 million annually in subsequent years.

“While this is a large amount in total, the average costs per facility are estimated to be about $62,900 in the first year and $55,000 per year for subsequent years. Although the overall magnitude of cost related to this regulation is economically significant, we note that these costs are significantly less than the amount of Medicare and Medicaid spending for [long-term care] services.”

CMS said the potential savings can’t be quantified, but expects it to create efficiencies by reducing hospital readmissions and other “positive business benefits for facilities.”