Catching Up With the Times: CMS Reforms for Long-Term Care Facility Requirements - Arbitration, Compliance Plans and Training
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On Oct. 4, CMS published the biggest overhaul to federal long-term care regulations since 1991. In an effort to assist providers and industry leaders in understanding the most substantive and impactful changes, Polsinelli will be presenting a series of three webinars. In the first webinar, we will begin with a discussion and analysis of the new rules related to CMS’ new rules that: -Prohibit the use of pre-dispute arbitration clauses as a condition of participation in Medicare and Medicaid programs -Require long term care providers to develop and maintain compliance and ethics programs; and -Impose new training mandates on long term care providers. Please join us for discussion of the rules, an analysis of how the rules will impact providers and our recommendations for proper and effective implementation.
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Catching Up With the Times: CMS Reforms for Long-Term Care Facility Requirements - Arbitration, Compliance Plans and Training
- 3. Arbitration Clauses – 42 C.F.R. § 483.70(n) § The Big Change: –Pre-dispute arbitration agreements are now prohibited. § Will impact Residency Agreements / Admission Paperwork § New rule does not affect already-existing arbitration clauses § No new agreements as of November 28
- 4. Arbitration Clauses – 42 C.F.R. § 483.70(n) § Post-Dispute Arbitration Agreement must: – Be explained to the resident and his/her representative in a manner in which they understand; – Be entered voluntarily by resident or representative, if permitted by state law, all requirements are met and the representative has no interest in the facility; – Provide for the selection of a neutral arbitrator; and – Provide for a convenient venue for both parties. § A resident’s right to remain in the facility must not be contingent upon the execution of the agreement.
- 5. Arbitration Clauses – 42 C.F.R. § 483.70(n) § Implementation Date: November 28, 2016 (Phase I). § Recommended Action Items: – LTC providers that wish to continue to participate in Medicare and Medicaid should review their resident contracts and admissions materials to ensure all pre-dispute arbitration clauses are removed as soon as possible. – Decide whether you want to continue to enforce your existing arbitration agreements and notify residents accordingly
- 6. Compliance and Ethics Plan Requirements - 42 C.F.R. § 483.85 § New Requirement § LTC facilities are required to have a compliance and ethics program in effect that –Establishes written compliance and ethics standards, policies and procedures –That are capable at reducing the prospect of criminal, civil and administrative violations.
- 7. Compliance and Ethics Plan Requirements - 42 C.F.R. § 483.85 § Required plan components: – Designation of an appropriate compliance and ethics program contact to which individuals may report suspected violations; – An alternative method of reporting suspected violations anonymously; – Disciplinary standards setting out the consequences for committing a violation; and – Assignment of high level personnel responsible to oversee compliance standards, policies and procedures, as well as resources and authority necessary to assure compliance.
- 8. Compliance and Ethics Plan Requirements - 42 C.F.R. § 483.85 § The facility should also take reasonable steps to: – Effectively communicate the policies; – Achieve compliance with the standards, such as utilizing monitoring and auditing systems; – Enforce standards; and – Respond appropriately to the detection of a violation, including ensuring all reasonable steps identified in its program are taken and to prevent further similar violations.
- 9. Compliance and Ethics Plan Requirements - 42 C.F.R. § 483.85 § Organizations with 5 or more facilities must: – Hold a mandatory annual training program on the organizations compliance and ethics program; – Designate a compliance officer whose major responsibility is the compliance and ethics program; – Designate compliance liaisons at each facility; and – Complete an annual review at each facility and revise the program as needed.
- 10. Compliance and Ethics Plan Requirements - 42 C.F.R. § 483.85 § Suggested topics • Code of Conduct • Duty to Report • Non-Discrimination • Resident Rights • Abuse / Neglect • Confidentiality • Conflicts of Interest • Protections for Reporting • Reporting Obligations • Documentation and Record- keeping • Referrals / Inducements • Harassment / Discrimination • Drugs and Alcohol • Government Investigations • Compliance with applicable regulations • Enforcement & discipline PLUS: - Reporting instructions - Acknowledgement of Receipt
- 11. Compliance and Ethics Plan Requirements - 42 C.F.R. § 483.85 § Implementation Date: 11/28/2018 (Phase III) § Recommended Action: – Gather existing “compliance plan” materials to determine what more needs to be done in your organization. Set a goal for developing a compliance plan while the industry waits for the guidelines and guidance that CMS has promised. Given the fact that similar guidance has been promised in the past, and never issued, we encourage providers to begin working on their existing compliance programs to comply with the rule so the organization can then revise their program based on CMS’ guidance once issued.
- 12. Training Mandates - 42 C.F.R. § 483.95 § New Requirement –All facilities must develop, implement and maintain a training program. § Who must receive training? –All new and existing staff, individuals providing services on a contractual basis and volunteers.
- 13. § Training must include: – Communication for direct care personnel; – Resident’s rights; – Abuse, neglect and exploitation; – Quality assurance and performance improvement; – Infection control; – Compliance and ethics; – Dementia management and abuse; – In-service for nurse aides; – Feeding assistants; and – Behavioral health. Training Mandates - 42 C.F.R. § 483.95
- 14. Training Mandates - 42 C.F.R. § 483.95 § Implementation Dates – Most of this rule will be implemented on November 28, 2018 (Phase III). – However, CMS will implement the following sections on November 28, 2016 (Phase I): • Section 483.95(c) - Abuse, neglect and exploitation training; • Section 483.95(g)(1) – In-service training; • Section 483.95(g)(2) - Dementia management and abuse prevention training • Section 483.95(g)(4) – Care of the cognitively impaired; and • Section 483.95(h) – Training of feeding assistants.
- 15. Training Mandates - 42 C.F.R. § 483.95 § Recommended Action: – Immediately review training programs that relate to the Phase I implemented topics and verify that they have developed and maintained a program that complies with the new rules. – After that has been assured, facilities should carefully read the rule and begin updating their training program, and developing new training programs if needed, to fully comply with all aspects of Section 483.95.
- 17. Catching Up With the Times: More to Come § Part 2: Management – Webinar - October 26, 2016 – Presented by Matt Murer & Anne Cooper § Part 3: Care – Webinar – November 2, 2016 – Presented by Jason Lundy & Dayna LaPlante