Presented by the Long-Term Care Litigation Practice Group

CMS Overhauls Regulations Applicable to Long-Term Care Facilities

October 4, 2016

By Chanel M. Mosley, Esq.

On Wednesday, September 28, 2016, the Centers for Medicare and Medicaid Services (CMS) announced the issuance of a new final rule concerning the regulation of Medicare- and Medicaid- certified long-term care providers. The new, comprehensive rule represents a major reform of the requirements applicable to long-term care facilities that were first published in 1989 and had not been updated since 1991. The purpose of this regulatory overhaul was to “improve the quality of life, care, and services in long-term care facilities, optimize resident safety, reflect current professional standards, and improve the logical flow of regulations.”

Examples of a few important changes among the rule’s provisions are:

New requirements concerning the implementation of a baseline care plan for each resident within 48 hours of their admission;
Added competency requirements for assessing the sufficiency of nursing staff based on a facility assessment;
Required monthly pharmacist reviews of residents’ medical charts;
A new focus on requirements for the provision of necessary behavioral health care to residents;
The development of an Infection Prevention and Control Program;
Updated requirements for staff training programs; and
An update to the language of the residents’ rights provisions.

While many of the regulations contained in the rule are designed to better align with current clinical practice standards, one area of particular interest is a new ban on pre-dispute arbitration agreements. Specifically, these new regulations, most of which take effect on November 28, 2016, prohibit long-term care facilities from entering into an agreement for binding arbitration with a resident or a resident’s legal representative. CMS maintains that the terms of the Federal Arbitration Act (FAA) are not implicated by this prohibition because the FAA applies only to voluntary arbitration agreements between private parties already in existence. Because the FAA does not dictate the circumstances in which an agreement for arbitration is required, CMS responds that the FAA does not foreclose on a federal agency’s right to regulate the terms of adopting such agreements. However, the new rule has no impact on the enforceability of any pre-dispute arbitration agreements between facilities and their residents that were executed prior to the effective date of November 28, 2016.

Accordingly, the new CMS regulations have no legal effect on preexisting arbitration agreements, but they prohibit long-term care facilities that participate in the Medicare and Medicaid programs from using such agreements in the future as a condition of continued participation in the CMS programs. Of note, the new CMS regulations are not applicable to assisted living facilities as they apply only to long-term care facilities that participate in the Medicare and Medicaid programs.

A complete summary of the final rule can be found here: https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-23503.pdf.

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