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Mixed Grades for New Federal Nursing Home Regulations

The Centers for Medicare and Medicaid Services (CMS) published final regulations governing nursing homes on September 28, 2016 that add new requirements and revise hundreds of existing rights and standards. The rule is 713 pages long and affects almost every aspect of life in a nursing home. Some of the changes are very good news for residents, while others are troubling or disappointing.

Ban on Pre-Dispute Arbitration Agreements: The most important new protection for nursing home residents is a ban on pre-dispute arbitration agreements that will take effect on November 28, 2016. Nursing homes have long used arbitration agreements to prevent residents who have been abused or neglected from suing them and having their case decided in a court of law. CANHR applauds CMS for taking this historic action. Read CANHR’s press release on the arbitration provisions.

This reform-minded spirit did not carry over to other key aspects of the regulations, especially on requirements related to chemical restraints, dementia care and staffing. The final regulations are virtually silent on dementia care, give very little attention to chemical restraints and informed consent, would reduce focus on antipsychotic drugs and leave it up to nursing homes to monitor whether they are adequately staffed.

Chemical Restraints:  Despite epidemic levels of chemical restraint in nursing homes today – more than a quarter-million residents are given antipsychotic drugs each day – CMS weakened the protections on antipsychotic drugs and left its barebones prohibition on chemical restraints intact. A key protection banning unnecessary drugs is now buried in a section on pharmacy requirements that is very unlikely to be enforced. CMS explicitly rejected calls to establish informed consent procedures governing use of psychoactive drugs.

Dementia Care: Nursing homes most commonly use chemical restraints to subdue residents with dementia, who make up about half of the total nursing home population. Yet CMS declined to establish any specific requirements for dementia care, claiming that this would require more research and discussion than it has completed at this time. This is an embarrassing admission, coming nearly 30 years after the Nursing Home Reform Act was enacted and over four years after CMS instituted its “National Partnership to Improve Dementia Care in Nursing Homes.”

Staffing: CMS continues to coddle nursing home operators who expose residents to neglect due to understaffing. Instead of establishing a minimum-staffing standard to ensure that nursing homes have enough staff to meet resident needs, CMS opted to create a requirement that nursing homes assess their own staffing needs. The final requirements on staffing are dangerously out of touch with residents’ needs.

The new requirements are being phased in over a three-period, with requirements taking effect on one of three dates: November 28, 2016, November 28, 2017, or November 28, 2019. CANHR will be preparing and posting a detailed side-by-side analysis of the changes by November 28, 2016.