Nursing Home Requirements of Participation: Will the Administration Overturn 2016 Rules for Infection Control?Posted in Article
The Trump Administration solicited ideas for cutting nursing home standards of care and has announced plans to publish new Requirements of Participation in order to reduce the burden on nursing facilities. In October 2016, the Obama Administration revised these Requirements, which establish the standards of care for nursing facilities that receive public reimbursement from the Medicare program, the Medicaid program, or both programs. What’s up for cuts?
Many of the Obama Administration’s 2016 final rules restated verbatim standards of care that had been in effect for more than 25 years. As a result of their continuation of long-standing standards, most of the Requirements went into effect in November 2016. Some of the rules incorporated new statutory requirements, such as compliance and ethics committees, or updated and modernized federal standards of care, for example, using the term “behavioral health services.” But some of the requirements were new, reflecting efforts to address serious care problems that the prior rules had not effectively prevented.
A key example is infection control. The preamble to the final 2016 rules reports that each year, 1.6 to 3.8 million health care associated infections occur in nursing facilities. These infections lead, each year, to an estimated 150,000 hospitalizations and 388,000 deaths, at a cost of $673 million to $2 billion. Kaiser Health News reported in 2017 that its analysis of four years of federal survey data found that 74% of facilities nationwide received an infection control deficiency, but that most of these deficiencies were cited at a low level of severity, making enforcement unlikely.
Clearly, infections have been causing great harm to residents and costing a lot of money. Long-standing federal Requirements addressing infection control (and, as found by Kaiser Health News, the limited enforcement of these Requirements) have not prevented these poor outcomes.
Among other changes, the 2016 rules took a strong stand on infections. Citing the poor resident outcomes and high costs of infections described above, the Centers for Medicare & Medicaid Services (CMS) defended the need for detailed standards in the preamble to the Requirements and explicitly rejected public comment to allow facilities greater flexibility. CMS created a new position called infection preventionist (IP), a staff person who is assigned responsibility for a facility’s implementation of a broadly defined “infection prevention and control program” (IPCP). The 2016 rules require that the staff person be qualified by education, training, experience, or certification to implement IPCP and also have completed specialized training in infection prevention and control. CMS and the Centers for Disease Control and Prevention (CDC) recently made available a “Nursing Home Infection Preventionist Training Program,” which they jointly developed, to enable IPs to get the specialized training they need to oversee their facilities’ IPCP.
Despite the history of serious infections in nursing homes, representatives of the nursing home industry continue to call for greater flexibility in the rules to address infections.
Will the Administration listen to the nursing home industry and dilute or eliminate new standards of care that, if effectively implemented and enforced, could reduce residents’ infections and hospitalizations, save residents’ lives, and save Medicare billions of dollars? We’ll find out the answer when the Administration publishes the proposed rules.
- For more information on the nursing home regulations and their impact on patient advocacy, see the recent Consumer Voice webinar Making it Real: Using the Revised Federal Nursing Home Regulations in Your Advocacy featuring the Center for Medicare Advocacy’s Senior Policy Attorney Toby Edelman and experts from Consumer Voice and Justice in Aging discussing how to address common problems and promote quality person-centered care and residents' rights by using the revised federal nursing home regulations. Topics covered include: admission; care planning, including baseline care plans; visitation; rehab services; transfer/discharge; return to the facility; and facility assessment.
April 11, 2019 – T. Edelman
 CMS, “Medicare Program; Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities for FY 2018, SNF Value-Based Purchasing Program, SNF Quality Reporting Program, Survey Team Composition, and Proposal to Correct the Performance Period for the NHSN HCP Influenza Vaccination Immunization Reporting Measure in the ESRD QIP for FY 2020,” 82 Fed. Reg. 21014, 21089 (May 4, 2017) (CMS wrote that it is “currently reviewing the LTC requirements to balance the need to maintain quality of care while reducing procedural burdens on facilities” and identified the grievance procedure, Quality Assurance and Performance Improvement, and discharge notices).
 Office of Information and Regulatory Affairs, Office of Management and Budget, “Requirements for Long-Term Care Facilities: Regulatory Provisions to Promote Program Efficiency, Transparency, and Burden Reduction (CMS-3347-P), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201710&RIN=0938-AT36 (anticipated date of publication of proposed rules was June 2018).
 81 Fed. Reg. 68688 (Oct. 4, 2016).
 56 Fed. Reg. 48825 (Sep. 26, 1991).
 Affordable Care Act, §6102; 42 C.F.R. §483.85.
 42 C.F.R. §483.40.
 81 Fed. Reg. 68688, 68808 (Oct. 4, 2016).
 Jordan Rau, Kaiser Health News, ‘Infection lapses are rampant in nursing homes but punishment is rare,” Los Angeles Times (Dec. 21, 2017), https://www.latimes.com/business/la-fi-nursing-home-infections-20171221-story.html.
 The earlier requirement was for facilities to have an “infection control program,” formerly at 42 C.F.R. §483.65.
 81 Fed. Reg. 68688, 68808-68809 (Oct. 4, 2016).
 42 C.F.R. §483.80(b).
 42 C.F.R. §483.80(b)(2).
 42 C.F.R. §483.80(b)(4).
 CMS, “Specialized Infection Prevention and Control Training for Nursing Home Staff in the Long-Term Care Setting is Now Available,” QSO-19-10-NH (Mar. 11, 2019), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/QSO19-10-NH.pdf.
 See comment letter from LeadingAge, pp. 25-27 (Jun. 26, 2017) to the proposed rules cited in footnote 1, supra, http://www.leadingagewi.org/media/46354/la-rops-cms.pdf.