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This is the sixth in a series of Alerts by Center for Medicare Advocacy regarding Patient Protection and Affordability Care Act of 2010 (PPACA) and the Health Care and Education Reconciliation Act of 2010 (HCERA). This Alert focuses on provisions affecting nursing homes.

The two new laws are collectively referred to as the Affordable Care Act. Because we are describing specific provisions of the laws, we retain the distinction between the two and use the initials of each separate act.

NURSING HOME TRANSPARENCY, ENFORCEMENT, AND STAFF TRAINING

Title IV, Subtitle B, of PPACA – Nursing Home Transparency and Improvement – addresses a variety of nursing home issues.

Part 1: Improving Transparency of Information

PPACA § 6101. Disclosure of Ownership and Additional Disclosable Parties. Effective immediately and upon request, skilled nursing facilities (SNFs) and nursing facilities (NFs) must make available to the Secretary of Health and Human Services (HHS), HHS Inspector General, the state, and the state long-term care ombudsman information about nursing home ownership (specifically, each member of the governing board, additional disclosable entities [which are defined as persons or entities that (1) exercise operational, financial, or managerial control over the facility or part of the facility or that provide policies and procedures or financial or cash management services; (2) lease or sublease real property to the facility; or (3) provide management or administrative services, management or clinical consulting services, or accounting of financial services to the facility]). Two years after enactment of the law (March 2012), the Secretary of HHS must publish final regulations. Ninety days after final regulations are published (June 2012), SNFs and NFs must report the information to the Secretary in a standardized format. One year after final regulations are published (March 2013), the Secretary must make the information available to the public.

PPACA § 6102. Accountability Requirements for Skilled Nursing Facilities and Nursing Facilities. Two years after enactment of the law (March 2012), HHS must publish final regulations for an effective compliance and ethics program, which may include a model compliance program. Three years after enactment of the law (March 2013), SNFs and NFs must have compliance and ethics programs in operation to prevent and detect criminal, civil, and administrative violations of the Act and to promote quality of care. Three years after final regulations are promulgated (March 2015), HHS must evaluate whether the compliance and ethics programs changed deficiency citations or made other changes to measures of quality, and must submit a report to Congress. HHS must also implement, by regulations, a Quality Assurance and Performance Improvement Program (QAPI) by December 31, 2011, which facilities must implement one year later.

PPACA § 6103. Nursing Home Compare Medicare Website. HHS must add to the official nursing home website, Nursing Home Compare, information about:

(1) Staffing data, including staffing turnover and tenure;

(2) Links to state internet sites, including links to the statements of deficiencies (reported on form #2567 and referred to as "2567s") and facility plans of correction;

(3) Standardized complaint form;

(4) Summary information on the number, type, severity, and outcome of substantiated complaints;

(5) Number of adjudicated instances of criminal violations by a facility or its employees that were committed in the facility, including those that involve abuse, neglect, exploitation, "or other violations or crimes that resulted in serious bodily injury."

The information must be presented "in a manner that is prominent, updated on a timely basis, easily accessible, readily understandable to consumers of long-term care services, and searchable."

HHS must establish a process to review the "accuracy, clarity of presentation, timeliness, and comprehensiveness" of information on Nursing Home Compare and make appropriate changes a year after enactment (March 2011).

To improve the timeliness of information on Nursing Home Compare, states must submit survey information to HHS no later than the date they send such information to facilities, and HHS must use the information to update the website "as expeditiously as practicable but not less frequently than quarterly."

The Special Focus Facility (SFF) program is mandated by statute. SFFs, defined as facilities that have "substantially failed to meet applicable requirements," must be surveyed at least every six months.

SNFs and NFs must have, and make available to anyone on request, reports about surveys and complaint investigations conducted within the prior three years. SNFs and NFs must post notice in a prominent and publicly accessible place that these reports are available.

HHS must provide guidance to states on establishing links to survey reports (2567s). States must maintain "a consumer-oriented website providing useful information to consumers," including 2567s, complaint investigation reports, and facility plans of correction.

HHS must develop a Consumer Rights Information Page on Nursing Home Compare that includes information and links on consumer rights and the survey process and state-specific information about services available through the state long-term care ombudsman.

PPACA § 6104. Reporting of Expenditures. Within one year after enactment (March 2011), HHS must redesign Medicare cost reports to require separate reporting of SNF expenditures for wages and benefits for direct care staff, including nurses and other medical and therapy staff. SNFs must begin using the new cost reports within two years of enactment (March 2012). Within 30 months of enactment (September 2013), HHS must categorize annual expenditures into four functional categories:

(1) Direct care staff;

(2) Indirect care (including housekeeping and dietary services);

(3) Capital assets; and

(4) Administrative services costs.

HHS must make the information available to interested parties on request.

PPACA § 6105. Standardized Complaint Form. Within one year after enactment (March 2011), HHS must develop a standardized complaint form that residents or persons acting on their behalf may use to file a complaint with a state survey agency or long-term care ombudsman program. States must establish a complaint resolution process that includes

(1) Procedures to assure accurate tracking of complaints,

(2) Procedures to determine the severity of complaints

(3) Procedures for complaint investigations, and

(4) Deadlines for responding to complaints.

In addition to the standardized form, complaints may still be submitted in other ways and formats, including orally.

PPACA § 6106. Ensuring Staffing Accountability. Within two years after enactment (March 2012), SNFs and NFs must submit, electronically to HHS, direct care staffing information (including agency and contract staff), "based on payroll and other verifiable and auditable data in a uniform format." Staffing information must:

(1) Specify the category of worker;

(2) Include information on resident census and case mix;

(3) Include a regular reporting schedule;

(4) Include information on employee turnover and tenure and hours of care per resident per day for each category of worker.

PPACA § 6107. GAO Study and Report on Five-Star Quality Rating System. Within two years of enactment (March 2012), the Government Accountability Office must submit a report to Congress on the Centers for Medicare & Medicaid Services's (CMS) Five-Star Quality Rating System, addressing how the system is being implemented, problems, and suggested improvements.

Part 2: Targeting Enforcement

PPACA § 6111. Civil money penalties. HHS may reduce a civil money penalty (CMP) by not more than 50% if a SNF or NF "self-reports and promptly corrects a deficiency for which a penalty was imposed." A reduction is not available for (1) a deficiency if HHS had reduced a CMP in the previous year with respect to a repeat deficiency and (2) a deficiency reflecting a pattern of harm or widespread harm, immediate jeopardy, or a resident's death. HHS must publish regulations providing for independent informal dispute resolution (IIDR). HHS may require placement of CMPs in an escrow account. SNFs or NFs that succeed on their appeals may receive the amounts collected plus interest.

CMP funds may be used for (1) activities "that benefit residents," including protecting residents whose facility closes or is decertified; (2) projects supporting resident and family councils and other consumer involvement in assuring quality care in facilities; and (3) facility improvement initiatives approved by HHS, including joint training of facility staff and surveyors, technical assistance, and appointment of temporary management firms.

Note: In an apparent drafting error, the law provides that per-day CMPs "may not be imposed" for any day during the period beginning on the initial day of the imposition of the penalty and ending on the day on which the [independent] informal dispute resolution process is completed. It is presumed that Congress meant that penalties would not be required to be placed in escrow accounts until completion of the IIDR process.

PPACA § 6112. National Independent Monitor Demonstration Project. Within one year of enactment (March 2011), HHS must begin a two-year demonstration project "to develop, test, and implement an independent monitor program to oversee interstate and large intrastate chains" of SNFs and NFs. HHS will choose chains from among those that apply for the project, focusing on chains with "serious safety and quality of care problems." The independent monitor analyzes the chain's compliance; conducts sustained oversight; analyzes management; reports his/her findings to the chain, HHS, and relevant states; and publishes the results. A chain must respond to the monitor's findings by submitting a report within 10 days, indicating corrective actions it will take or the reasons it will not implement the recommendations. A chain is responsible for "a portion of the costs associated" with the monitor. HHS must evaluate the demonstration in a report to Congress.

PPACA § 6113. Notification of Facility Closure. A SNF or NF administrator must provide written notice of a voluntary closure to HHS, state long-term care ombudsman, residents, and legal representatives 60 days in advance of the closure. Advance notice of a termination will be at the discretion of HHS. The administrator must ensure that no new residents are admitted after the date that written notice of closure is provided. The notice of closure must include (1) a plan (approved by the state) for the transfer and adequate relocation of all residents and (2) assurances that the residents will be transferred to the most appropriate facility or other setting in terms of quality, services, and location, taking into consideration the needs, choice, and best interests of each resident. HHS may continue payments until all residents are successfully relocated. An administrator who fails to comply with these requirements may be subject to a CMP of up to $100,000 and may be excluded from federal payment programs.

PPACA § 6114. National Demonstration Projects on Culture Change and Use of Information Technology in Nursing Homes. Within one year of enactment (March 2011), HHS will implement two three-year demonstration projects, one on "culture change" and the other on the use of information technology in nursing homes.

Part 3: Improving Staff Training

PPACA § 6121. Dementia and Abuse Training. Initial training for nurse aides must include "dementia management training and patient abuse prevention training." HHS may also require such training in aides' ongoing training.

ADDITIONAL PROVISIONS ADDRESSING NURSING HOME ISSUES

PPACA § 6201. Nationwide Program for National and State Background Checks on Direct Patient Access Employees of Long-Term Care Facilities and Providers. HHS must establish a nationwide program "to identify efficient, effective, and economical procedures" for background checks of workers with direct patient access, modeled on the pilot program conducted under the Medicare Prescription Drug, Improvement, and Modernization Act of 2003. The procedures must include search of state-based abuse and neglect registries, state and Federal criminal history records, and a fingerprint check. States must:

(1) Conduct the screening and criminal history background checks;

(2) Monitor compliance by long-term care facilities and providers;

(3) Provide for provisional employment, up to 60 days, for employees and for direct on-site supervision for employees pending completion of an appeal process;

(4) Provide for an independent appeal process for a provisional employee or employee to dispute the accuracy of information;

(5) Provide for a single state agency to be responsible for overseeing the process (including specifying the disqualifying offenses).

The federal match for a state program must be three times the state amount, not exceeding $3 million. The nationwide program applies to SNFs, NFs, home health agencies, hospice providers, adult day care providers, and residential care providers that arrange for or directly provide long-term care services, "including an assisted living facility that provides a level of care established by the Secretary." The Office of Inspector General must evaluate the nationwide program and submit a report to Congress.

PPACA § 6703. Grants and Training to the Ombudsman Program on Abuse and Neglect. This provision, part of the Elder Justice Act, provides grants and training to the ombudsman program on abuse and neglect. It also establishes a National Training Institute for Federal and State Surveyors to improve surveyor training in abuse and neglect, provides for grants to improve state survey agencies' complaint investigation systems, and requires a study on establishing a national nurse aide registry.

PPACA § 10325. Revision to Skilled Nursing Facility Prospective Payment System. Revisions to the Medicare prospective payment system (PPS) for SNFs are delayed from October 1, 2010 to October 1, 2011, except for changes to concurrent therapy and the look-back period, which were published in the final PPS regulations on August 11, 2009 (74 Fed. Reg. 40288). The Minimum Data Set 3.0 will become effective October 1, 2010.

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