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 CMS Seeks One-Year Delay for Some RoP Provisions, Issues Final Arbitration Rule

In a big day for long term and post-acute care (LT/PAC) providers and the regulatory framework they work under, the Centers for Medicare & Medicaid Services (CMS), issued two rules on July 16. One is a proposed rule covering changes to the Requirements of Participation (RoP) for the Medicare and Medicaid programs and the second a final rule on pre-dispute arbitration agreements.

The highlight for the RoP draft rule is that CMS wants to delay by one year some of the Phase 3 requirements, while the arbitration final rule saw the Trump administration negate a ban that was attempted by the Obama administration on pre-dispute arbitration agreements.

In the RoP proposed rule, CMS said the draft works to “emphasize the agency’s commitment to ensuring safety and quality in nursing homes” and at the same time allow providers to keep their focus on their residents “by saving them $616 million in administrative costs annually that can be reinvested in patient care.”  

In evaluating the proposal, David Gifford, MD, American Health Care Association (AHCA) senior vice president of quality and regulatory affairs and chief medical officer, said while the LT/PAC advocates are still closely reviewing the proposed rule in more detail, there were positives to talk about in its initial take.

“We are pleased that CMS preserved important advances in these regulations such as those addressing infection control and prevention and resident rights,” he said. “At the same time, CMS has recognized the need to eliminate regulations that result in unnecessary paperwork. Many of the changes in today’s proposed rule will allow caregivers to devote more time to resident care instead of completing paperwork that does not help keep residents safe and healthy.”

A significant proposed change is that CMS has delayed implementation of some Phase 3 requirements for one year from the original November 2019 date, including components of the Quality Assurance and Performance Improvement (QAPI) requirements and portions of the Compliance and Ethics Program requirements, Gifford said.

“Nursing homes are already providing quality care each day. CMS measures show improvement on 18 of 24 key areas. Unnecessary use of antipsychotic medications is declining. More people are returning home after successful rehabilitation,” he said. 

“More regulations are not the way to incentivize quality improvement. This rule recognizes that more paperwork and administrative requirements takes time away from nurses who want to spend more time at the bedside.”

For its part CMS said the draft rule, Medicare and Medicaid Programs; Requirements for Long-Term Care Facilities: Regulatory Provisions to Promote Efficiency and Transparency (CMS-3347-P), would eliminate prescriptive requirements and allow common-sense flexibilities, like the aforementioned changes to the QAPI requirements. 

On the one-year delay in the draft rule, CMS said it took this step to avoid confusion and promote transparency.

The arbitration rule drew preliminary praise from LT/PAC provider advocates. “We are still reviewing and evaluating the final rule, but we applaud CMS for allowing skilled nursing facilities to use pre-dispute arbitration agreements,” said Mark Parkinson, AHCA president and chief executive officer.

He added that the association is “concerned about CMS adding any conditions or administrative requirements when Congress has spoken on this topic.”

Pre-dispute binding arbitration agreements are arrangements in which two parties agree to settle future disputes through an arbitration process rather than through litigation, and requires both parties to accept the arbitration process’ outcome.

In the final rule (CMS-3342-F, Medicare and Medicaid Programs; Revision of Requirements for Long-Term Care Facilities: Arbitration Agreements), CMS explained that its action on pre-dispute binding arbitration was part of a broader update to what has been a lengthy process.

In October 2016, CMS said the Obama administration banned the use of pre-dispute binding arbitration agreements in long term care facilities, but never enforced the ban due to a legal challenge and subsequent injunction.

Less than a year later, the new Trump administration published a proposed rule that would remove the ban on such agreements.

In issuing the final rule, CMS said it had determined that resident rights must be protected by allowing them the ability to choose their method of dispute resolution, “while preserving access to all possible choices, including arbitration, a method that often costs residents much less than litigation.”

Thus, CMS said it is allowing binding arbitration agreements, but will prohibit nursing facilities from requiring residents to sign them as a condition for receiving care and will require nursing facilities to inform residents or their representatives that they are not required to sign a binding arbitration agreement. 

“Finally, CMS is prohibiting nursing home arbitration agreements from including language preventing residents or anyone else from communication with federal, state, or local officials,” the agency said.

To read the RoP proposed rule, go to https://tinyurl.com/y3nvt7tv, and for the final rule on arbitration agreements, see https://tinyurl.com/yyvzbr4t.

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