Public coverage of the new nursing home Requirements of Participation (RoPs) – the standards of care that nursing facilities must meet in order to be eligible for reimbursement by the Medicare and Medicaid programs – has focused primarily on their prohibition against facilities’ use of mandatory pre-dispute arbitration agreements. While advocates for residents applaud this change, which preserves residents’, or more typically, their families’ ability to file lawsuits against facilities, these lawsuits, by definition, are after the fact – after a resident has been seriously harmed or died as a result of poor care or the denial of necessary care during a nursing home stay. Tort litigation and wrongful death litigation, while important, should not be viewed as the primary means of ensuring high quality of care for nursing home residents. As the California Supreme Court said, in a 1997 decision:
Relying on the threat of a personal injury lawsuit to impose compliance with health and safety regulations defeats the very purpose of the statutory scheme, i.e., preventing injury from occurring . . . “[b]ecause these patients are ‘at the mercy of the facility,’ the inspection, citation, and penalty system established by the Legislature is necessary to ensure that they receive quality care. . . . [T]he primary responsibility for enforcing compliance with statutes and regulations governing long-term health care facilities has been given to the Department through its licensing inspection, and citation regime.
A similarly broad understanding of the importance of the public regulatory function is set out in the federal Nursing Home Reform Law, enacted in 1987, which describes the
duty and responsibility of the Secretary to assure that requirements which govern the provision of care in skilled nursing facilities under this title, and the enforcement of such requirements, are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public moneys.
Residents’ advocates had hoped that the Centers for Medicare & Medicaid Services (CMS) would use the opportunity of comprehensively revising the RoPs, for the first time in more than 25 years, to correct the most serious problem in nursing home standards of care – the absence of a requirement for sufficient numbers of well-trained, well-supervised nursing staff, including the need for registered nurses around the clock. CMS did not. Its new final regulations continue the same inadequate staffing requirements that have been a primary source of poor care in nursing facilities for many years.
Without improved staffing, the promise of the new regulations and the Nursing Home Reform Law that the regulations implement, residents will not achieve the statutory goal – the right of each resident to receive the care and services that he or she needs in order “to attain or maintain the highest practicable physical, mental, and psychosocial wellbeing.” The Center for Medicare Advocacy laments the missed opportunity.
There are aspects of the new regulations that will undoubtedly improve care. For example, the requirement that facilities develop and implement a baseline care plan within 48 hours of a resident’s admission, and not wait for 14 days, should help improve care in the stressful time just after a resident’s admission. But without adequate staffing, too many other aspects of the final rules do little to make the new requirements achievable, and some aspects even weaken current rules.
The Center will be reporting on the specific features of the final regulations in a later Alert.
October 5, 2016 – T. Edelman
 81 Fed. Reg. 68687 (Oct. 4, 2016), https://www.gpo.gov/fdsys/pkg/FR-2016-10-04/pdf/2016-23503.pdf.
 Jessica Silver-Greenberg and Michael Corkery, “U.S. Just Made It a Lot Less Difficult to Sue Nursing Homes,” The New York Times (Sep. 28, 2016), http://www.nytimes.com/2016/09/29/business/dealbook/arbitration-nursing-homes-elder-abuse-harassment-claims.html?smprod=nytcore-iphone&smid=nytcore-iphone-share.
 California Association of Health Facilities v. Department of Health Services, 16 Ca.4th 284, 940 P.2d 323, 65 Cal.Rptr.2d 872, 885 (1997).
 42 U.S.C. §1395i-3(f)(1) (Medicare). The Medicaid statute is virtually identical. 42 U.S.C. §1396r(f)(1).
 42 U.S.C. §§1395i-3(b)(4), 1396r(b)(4), Medicare and Medicaid, respectively.