By Karen L. Nicolson and Lindsay Heckler
The Centers for Medicare and Medicaid Services (CMS) is responsible for developing standards for rehabilitation facility and nursing home care (includes rehabilitation facilities) and ensuring those standards are met. Every nursing home that accepts Medicare and/or Medicaid is required by law to abide by the regulatory standards developed by CMS.
In October 2016, CMS updated the nursing home regulations, placing emphasis on person-centered care and strengthening resident protections. The updated regulations take effect in three phases: phase one began Nov. 28, 2016; phase two began Nov. 28, 2017, and phase three takes effect in 2019.
The nursing home industry has voiced concerns that the updated regulations are too burdensome and costly. In response, CMS is currently considering action that will undermine the necessary resident protections by modifying and removing necessary resident protections.
CMS actions include a proposed rule that would allow nursing home admission agreements to require residents to agree to pre-dispute arbitration clauses; meaning if you are injured, you likely have no remedy in the court system, and are signing away a constitutional right to a trial by jury, prior to any incident/injury arising.
The revised rule, effective last year, banned such clauses; CMS is choosing to not enforce it.
Nursing home residents have higher needs than in 1991, when federal regulations were first enacted. Nursing home care is one step below the hospital setting and half of all residents have a form of dementia.
The numbers of older Americans in nursing homes is expected to grow. A recent RAND study determined that of persons age 57-61, 56 percent will spend at least one night during their lifetime in a nursing home. Many of us will need rehabilitation care in a nursing home after surgery or a hospital stay. Issues in nursing homes impact everyone.
While not every nursing home provides substandard care, poor care is still a problem in many of them. Implementation and enforcement of the newly enacted protections is essential to ensuring that all members of our community receive quality care and have a quality life.
CMS is currently considering action that could undermine necessary resident protections. CMS needs to hear from the community that such actions are wrong. Contact your member of Congress, acting HHS Secretary Eric Hargan and CMS Administrator Seema Verma, and tell them you stand by nursing home resident protections.
The purpose of the federal nursing home regulations is to protect those who need nursing home level of care, for both short term rehabilitation services and long term care. CMS should be protecting our community by strengthening resident protections, not reducing those protections for the benefit of the nursing home industry and the detriment of the residents.
Karen L. Nicholson is chief executive officer and Lindsay Heckler is staff attorney at the Center for Elder Law & Justice.