“Health Care Reform” has now passed in the form of the Patient Protection and Affordable Care Act (the “Act”). The passage and March 23rd signing of the Act will have far-reaching implications for skilled nursing facilities. While this legislation is being challenged, reform is underway even though the details will continue to be honed. Providers should now begin the process of coming to terms with this legislation and begin to develop a plan for meeting its requirements.
While the media has covered health care reform generally, there has been little focus upon the specifics of reforms which will most directly affect nursing homes. This Update on Health Care Reform highlights key provisions under the Act and provides a general timeline within which these provisions will take effect.
WHAT IS INCLUDED IN THE ACT
Three bills incorporated in the Act will directly regulate skilled nursing facilities. First, the Nursing Home Transparency Act aims to bring about “transparency” of information regarding the ownership and operation of skilled nursing facilities. Second, the Elder Justice Act aims to require any state receiving Federal funds for certain law enforcement assistance programs to adopt laws and policies that prohibit parole for elder-related crimes, and it grants money to certain advocacy groups to study and provide input to local law enforcement regarding elder abuse. Third, the Patient Safety and Abuse Prevention Act provides for national criminal background checks on certain employees of long-term care facilities, including assisted living.
The latter two bills - the Elder Justice Act and Patient Safety and Abuse Prevention Act - will primarily come into effect through appropriation of money to state governments and subsequent legislation and regulation at the state level. However, the Nursing Home Transparency Act will have immediate implications for facilities in terms of disclosure and regulatory obligations.
IMMEDIATE IMPLICATIONS
OF
HEALTH CARE REFORM PASSAGE
THE NURSING HOME TRANSPARENCY ACT
New Disclosure Requirements
Facilities will be subject to new disclosure requirements under Section 1124 of the Social Security Act (42 U.S.C. § 1320a-3), mandating disclosure of the following information:
Each member of the governing body of the nursing home facility, including the member’s •
name, title, and period of service.
Each person or entity who is an officer, director, member, partner, trustee, or managing •
employee of the facility, including the name, title, and date of start of service of each such person or entity.
Each person or entity who is an additional “disclosable” party of the facility. A “disclosable •
party” will include an individual who exercises operation, financial, or managerial control over the facility.
Such information must be readily available upon request by regulatory authorities, including the Secretary of Health and Human Services, the Inspector General for Health and Human Services, states, and a state long-term care ombudsman.
New Compliance Protocols and Ethics Programs
Facilities must have programs in place that detect and prevent criminal, civil, and administrative violations. Regulations will be promulgated illustrating what consists of an effective deterrence program with respect to criminal activity, civil violations, and administrative breaches.
The Department of Health and Human Services will be required to
ensure that facilities have assigned specific personnel to verify all
the regulations for this program are followed.
Real-Time Nurse Staffing
Internal QA and Performance Improvement Standards
Facilities must develop internal quality assurance and performance improvement standards to monitor and improve the quality of care provided to residents. The Secretary will promulgate standards for such programs by December 31, 2011. Within one year of these standards being promulgated, facilities will have to submit to DHHS a plan showing compliance with these standards.
Nursing Home Compare
The Reconciliation Act expands the website Nursing Home Compare to include information and links to recent health and safety inspection reports. Information submitted to the Secretary will be posted to the site, including real-time data on staffing, resident census data, hours of care provided per resident per day. The site will also include data on staffing turnover, tenure, and the number of criminal violations by employees of the facility.
Production of Documents for Previous Three Years
Facilities must be able to produce to the public any documents from the past three years regarding surveys, certifications, or complaint investigations. Again, a notice must be prominently posted in the facility informing the public that the facility has these documents available.
Transparency for Expenditures
Facility cost reports will be required to separately account for staffing; that is, breaking out expenditures for wages and benefits for direct care staff, including at a minimum registered nurses, licensed professional nurses, certified nurse assistants, and medical and therapy staff.
These reports will be analyzed by the Department for cost effectiveness.
Civil Monetary Penalties (CMPs)
The Reconciliation Act will allow the reduction of CMPs up to 50% for those facilities that self-report health deficiencies, in cases where the violations do not result in actual harm, immediate jeopardy, or the death of a resident.
The Secretary will be authorized to place CMPs in escrow accounts following an independent informal dispute resolution process that generates a written record and is completed within 30 days. Facilities that successfully appeal will receive the full CMP amount plus interest.
National Independent Monitor Pilot Program
The Reconciliation Act establishes a two-year pilot program to monitor “interstate and large intrastate chains of skilled nursing facilities.” Facilities will be selected by the Secretary where one or more facilities are experiencing “serious safety and quality of care problems”, potentially including Special Focus Facilities. If a “chain” is selected, the independent monitor will:
(1)
conduct period reviews, prepare root-cause quality and deficiency analyses;(2)
facilitate compliance with State and Federal laws and regulations, undertake sustained oversight of the chain;(3)
analyze management structure, expenditures, and nursing staffing levels in relation to resident census, staff turnover, and tenure;(4)
report findings and make recommendations to the Secretary and the States; AND(5)
publish the results.The independent monitor will make recommendations to the facility, and within 10 days after the recommendations the facility may either take the corrective action suggested OR indicate that it will not do so and why. A portion of the cost of the program will be borne by the chain, as established by the Secretary.
Notification of Facility Closure
The Reconciliation Act provides for new reporting and notification requirements upon an impending closure. The Administrator must submit to the Secretary, State Ombudsman, resident, and resident’s legal representative notification of an impending closure at least 60 days prior to closure. The Administrator must include with the notice a plan for transfer and relocation, subject to a potential $100,000.00 fine and exclusion from participation in Medicare/Medicaid programs.
Improvement of Training for Dementia and Abuse Prevention
Dementia management training and resident abuse prevention training must be included in initial training.
TIMELINE FOR IMPLEMENTATION OF
NEW LAW AND REGULATIONS
The above laws and regulations will be implemented in accordance
with the following timeline.
Upon Enactment:
The facility must be able to disclose the identity of each: member, director, or other “disclosable” person to regulatory authorities.
Within One Year of Enactment:
Facilities must be able to produce to the public any documents from the past three •
years regarding surveys, certifications, or complaint investigations. A notice must be prominently posted in the facility, stating that the facility has such documents available for reference.
The National Independent Monitor Demonstration Project will have begun. •
The notification requirements will have taken effect regarding impending closure •
Dementia and Abuse Prevention Training must be instituted. •
Effective Within Two Years from Enactment:
Facilities must electronically submit to the Secretary of Health and Human Services •
` direct care staffing information (including information with respect to agency and contract staff) based on payroll and other verifiable and auditable data in a uniform format.
A GAO Study regarding problems with the Five-Star Quality Rating System shall be •
conducted within two (2) years.
By December 31, 2012:
Facilities must submit to the Department of Health and Human Services a plan showing compliance with the internal quality assurance and performance improvement standards
Three Years from Enactment:
Facilities must have programs in place that detect and prevent criminal, civil, and •
administrative violations.
Facilities must report, to the Department of Health and Human Services, expenditures •
for wages and benefits for direct care staff breaking out at a minimum registered nurses, licensed professional nurses, certified nurse assistants, and other medical and therapy staff.
3
YEARS
2
YEARS
1
YEAR
1
DAY
12.31
2012
WHAT THE FUTURE HOLDS
While the Patient Protection and Affordable Care Act was signed by the President and enacted, meanwhile, the “Reconciliation Act of 2010” is being considered by the Senate. The Reconciliation Act effectively amends the Patient Care and Affordable Health Care Act. This process may create litigation under the Constitution.
The focus of the legal attacks will be, under the Tenth Amendment to the U.S. Constitution, Congress does not have the right to mandate individuals buy health insurance, or to require states to establish and oversee insurance exchanges through which individuals and businesses would buy health coverage. Notwithstanding, the Patient Protection and Affordable Care Act is now law and the reforms contained in it, specifically those regarding nursing care facilities, are likely here to stay, even if some changes are made in the future.
For questions, please contact:
Hall, Booth, Smith & Slover, P.C. Long-Term Care Group
1180 W. Peachtree St. NW, Suite 900 Atlanta, GA 30309
T. Andrew Graham, Esq., [email protected] Dana S. Durrett, Esq. [email protected] Kevin D. Abernethy, Esq., [email protected] For additional resources, please visit:
