- Beneficiary Protections Expanded in Revised Home Health Conditions of Participation
- Nursing Home Residents Are At Risk
- Elder Justice: What “No Harm” Really Means for Residents, December Issue Available Now
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5th Annual National Voices of Medicare Summit &
This year's Summit will focus on health care activism, civic engagement, and efforts to preserve (and enhance) the Affordable Care Act, Medicare, and Medicaid. Senators Chris Murphy and Jay Rockefeller will be present to help participants think about building a healthy future for all Americans.
This is Part Six of a ten-part CMA Issue Brief Series examining the growing crisis in access to Medicare home health coverage and necessary care – and outlining the Center for Medicare Advocacy’s work to address these issues. We invite you to follow this Issue Brief Series and submit Medicare home health stories to the Center at http://www.medicareadvocacy.org/submit-your-home-health-access-story/.
CMA Issue Brief Series: Medicare Home Health Care Crisis
- Overview – The Crisis in Medicare Home Health Coverage and Access to Care
- Medicare Home Health Coverage, Legally Defined
- Medicare Coverage for Home Care Is Based On a Need For Skilled Care – Improvement Is Not Required
- Misleading and Inaccurate CMS Medicare Home Health Publications
- The Home Care Crisis: An Elder Justice Issue
- Beneficiary Protections Expanded in Revised Home Health Conditions of Participation
- Barriers to Home Care Created by CMS Payment, Quality Measurement, and Fraud Investigation Systems
- Proposed CMS Systems Will Worsen the Home Care Crisis
- A Further Examination of the Home Care Crisis: Published Articles and Statistical Trends
- Strategic Plans to Address and Resolve the Medicare Home Care Crisis
Beneficiary Protections Expanded in Revised Home Health Conditions of Participation
2018 ushers in newly revised Conditions of Participation (COP) that must be met in order for home health agencies to participate in Medicare. Effective January 13, 2018, beneficiary protections will be expanded under the COP which provide a more patient-centered focus of care. The revised regulations include: A new patient bill of rights that must be clear and accessible to patients and staff; additional patient assessment requirements to include psychosocial, functional and cognitive components; more significant consideration of patient preferences; greater patient involvement in care planning; coordination and integration with all of a patient’s physicians; inclusion of patients, their representatives, and home health aides on the interdisciplinary care team; and, very significantly, greater protections for patients from arbitrary transfer or discharge from home health care.
Highlights from the revised Conditions of Participation that add protections for home health patients include the following revisions to 42 Code of Federal Regulation (CFR) Section (§) 484:
Section 484.2 – Definitions
§484.2 A Patient-Selected Representative is newly defined as someone chosen by the patient to participate in making decisions related to the patient’s care or well-being, including family members or advocates, despite the fact that they may not have any legal standing. Legal Representatives continue to be someone who is acting on the legal authority to make health care decisions.
Section 484.50 – Condition of Participation: Patient Rights
§§484.50 – 484.50(a)(1)(iii) The patient and patient’s legal representative (if any) have the right to be informed of the patient rights in a language and manner the individual understands. This must include the home health agency’s policies regarding transfers and discharge from care.
§484.50(a)(3) The home health agency must provide at least verbal notice of patient rights no later than the completion of the second visit from a skilled professional.
§484.50(a)(4) This section requires: (1) written notice of patient rights and discharge or transfer policies be given to a patient-selected representative within 4 business days after an initial evaluation visit; (2) the home health agency to inquire about patient preferences and demonstrate progress toward goals; and (3) the home health agency to identify family caregivers and their willingness and availability to assist with care.
§484.50(c)(4)(i) Patients have a right to participate in and be informed about all assessments (the previous Conditions of Participation only extended the patient right to be involved in the initial comprehensive assessment).
§484.50(c)(4) Patients have the right to participate in, be informed about, and consent or refuse care in advance of and during treatment.
§484.50(c)(5) Patients have the right to receive all the services outlined in the plan of care.
§484.50(d)(1) Importantly, this section creates a new standard addressing transfer and discharge of patients by a home health agency. In this section, home health agencies are responsible for making arrangements for any safe and appropriate transfer of a patient to another agency.
§484.50(d)(3) Discharge is noted to be appropriate only when a physician and home health agency both agree that the patient has achieved measureable outcomes and goals established in the individual plan of care. Remember that goals may include slowing deterioration of a condition, maintaining a condition, or improving a condition.
§484.50(e)(1)(i) The subject matter upon which patients may make complaints about a home health agency is not limited just to subjects specified in the regulations.
§484.50(e)(1)(iii) Home health agencies must take action to prevent retaliation against a patient while a patient complaint is investigated.
Section 484.55 – Condition of Participation: Comprehensive Assessment of Patients
§484.55(c)(1) The comprehensive assessment must assess or identify current health status. A new requirement has been added to include assessment of psychosocial, functional, and cognitive status.
§484.55(c)(2) The comprehensive assessment must include patient’s strengths, goals and care preferences, including, but not limited to, patient’s progress toward achievement of goals identified by the patient and measureable goal outcomes identified by the home health agency.
§484.55(c)(6) The comprehensive assessment must identify the patient’s primary caregivers (if any) and any other actually available support.
§484.55(c)(6)(i) The comprehensive assessment must include information about caregivers’ willingness and ability to provide care, their availability, and schedules.
Section 484.60 – Condition of Participation: Care Planning, Coordination of Services and Quality of Care
This section requires patients and caregivers to receive education and training including written instructions outlining medication schedules and instructions, home health personnel visit schedules, and other pertinent instructions related to patient care and treatment that the home health agency will provide specific to patient care needs.
§484.60(b)(1) Expands services, treatments and medications that can be ordered by any of the patient’s physicians, not only the physician or physicians responsible for the plan of care.
§484.60(b)(4) Permits any nurse acting in accord with state licensure requirements to verbally receive physician orders.
§484.60(d)(1) and (2) Home health agencies must assure communication with all physicians involved in the plan of care, not just the physician that signed the plan of care, and the home health agency must integrate orders from all physicians to ensure appropriate coordination of services and interventions.
Section 484.65 – Condition of participation: Quality Assessment and Performance Improvement (QAPI)
This section sets out standards and required quality and improvement measures for home health agencies that are detailed, monitored and documented.
§484.75 – Condition of Participation: Skilled Professional Services
§484.75(b)(7) A home health agency must communicate with all physicians involved in the plan of care and accept orders directly from multiple physicians involved in the plan of care, even if they are not in the same practice group.
484.80 Condition of Participation: Home health Aide Services
§484.80(g)(1) Removes a previous requirement that the skilled professional who is responsible for the supervision of a home health aide must be the same individual who prepares written patient care instructions for the home health aide.
§484.80(g)(2) Requires home health agencies to provide services ordered by the physician in the plan of care as long as the home health agency is permitted to perform the services under state law and the services are consistent with training received by the home health aide to provide the services.
§484.80(g)(3) Home health aides duties are defined to include: Provision of hands on personal care; performance of simple procedures as an extension of therapy or nursing services; assistance in ambulation or exercises; and assistance in administering medications ordinarily self-administered.
§484.80(g)(4) Requires that home health aides be members of the interdisciplinary team; report changes in a patient’s condition; and, complete appropriate records in compliance with home health agency policies and procedures.
§484.80(h)(1) Requires a home health supervisor (RN or therapist) to make an onsite visit to the patient’s home no less frequently than every 14 days. The home health aide would not have to be present at the time of the onsite visit.
§484.80(h)(4) Requires a supervisor to ensure the care provided by the home health aide is safe and effective, including, but not limited to: following the plan of care; maintaining open communication with the patient, representatives, caregivers and family; demonstrating competency with assigned tasks; complying with infection prevention and control policies and procedures; reporting changes in the patient’s condition; and, honoring patient rights.
484.105 – Condition of participation: Organization and administration of services
§484.105(c) This section was revised to specify that one or more qualified individuals must provide oversight of all patient care services and personnel.
484.110 – Condition of participation: Clinical records
§484.110(e) A patient’s clinical records must be made readily available to a patient or appropriately authorized individual upon request.
The practical impact of the new Conditions of Participation is yet to be seen. They should, however, provide welcome additional tools to ensure Medicare-covered home health care is properly provided and that patient rights are respected.
 CMS issued a Press release on January 9, 2017 stating that the revised Conditions of Participation “are the minimum health and safety standards a home health agency must meet in order to participate in the Medicare and Medicaid programs.” (CMS Press Release, CMS Finalizes New Medicare and Medicaid Home Health Care Rules and Beneficiary Protections, 1/9/2019).
 The revised conditions of participation rules were originally expected to be effective July 13, 2017. https://www.gpo.gov/fdsys/pkg/FR-2017-01-13/pdf/2017-00283.pdf. Due to a six-month delay in the effective date, https://www.gpo.gov/fdsys/pkg/FR-2017-07-10/pdf/2017-14347.pdf, the new effective date for the revised rules is January 13, 2018.
Last week, the New York Times and Los Angeles Times published two articles about skilled nursing facilities (SNFs). These articles focused on the Centers for Medicare & Medicaid Services’ (CMS) efforts to rollback oversight regulations, as requested by nursing home industry groups. The New York Times article, entitled “Trump Administration Eases Nursing Home Fines in Victory for Industry,” explores CMS’s latest efforts to reduce financial penalties against deficient nursing homes, as well as CMS’s other deregulatory efforts like placing an 18-month moratorium on eight nursing home requirements. The Los Angeles Times article – “Infection Lapses Are Rampant In Nursing Homes But Punishment Is Rare” – provides insight on what such deregulatory actions mean for residents by looking at infection control deficiencies.
This week, the New York Times published a new article, “Care Suffers as More Nursing Homes Feed Money Into Corporate Webs,” examining detrimental business practices that place nursing home residents at risk of harm, injury, and death. As the article notes, “owners of nursing homes outsource a wide variety of goods and services to companies in which they have a financial interest or that they control.” The article reports that nearly three-quarters of nursing homes in the U.S. employ such practices. Related-party transactions, as they are called, have the power to siphon money away from nursing homes and into the pockets of owners. Consequently, nursing homes that use related-party transactions tend to “have fewer nurses and aides per patient, they have higher rates of patient injuries and unsafe practices, and they are the subject of complaints almost twice as often as independent homes.”
- To read “Trump Administration Eases Nursing Home Fines in Victory for Industry,” please visit https://www.nytimes.com/2017/12/24/business/trump-administration-nursing-home-penalties.html.
- To read “Infection lapse are rampant in nursing homes but punishment is rare,” please visit http://www.latimes.com/business/la-fi-nursing-home-infections-20171221-story.html.
- To read “Care Suffers as More Nursing Homes Feed Money Into Corporate Webs,” please visit https://www.nytimes.com/2018/01/02/business/nursing-homes-care-corporate.html?_r=0.
- To see our Alert on the New York Times and Los Angeles Times articles published last week, please visit http://www.medicareadvocacy.org/cma-alert-spotlight-on-snf-enforcement/#1.
 Jordan Rau, Care Suffers as More Nursing Homes Feed Money Into Corporate Webs, N.Y. Times (Jan. 2, 2018), https://www.nytimes.com/2018/01/02/business/nursing-homes-care-corporate.html?_r=0.
The December issue of Elder Justice: What “No Harm” Really Means for Residents is now available online. Elder Justice: What "No Harm" Really Means for Residents is a monthly newsletter published by the Center for Medicare Advocacy and the Long Term Care Community Coalition. The purpose of the newsletter is to provide residents, families, friends, and advocates information on what exactly a "no harm” deficiency is, how prevalent "no harm" deficiencies are, and what "no harm" actually means to residents.
Nursing Home Compare data in this latest issue show that state surveyors cited 6,822 deficiencies in September (2,409 more deficiencies than in the previous month, based on the date of the newsletter’s publication). Unfortunately, the data show roughly no change in the number of deficiencies cited at a “no harm” level between August and September (about 95 percent). This issue provides real stories of harm that residents experience in Pennsylvania, New Mexico, Oregon, Minnesota, California, and across the country.
To read the December issue of Elder Justice: What “No Harm” Really Means for Residents, please visit http://www.medicareadvocacy.org/newsletter-elder-justice-what-no-harm-really-means-for-residents/