On Sept. 28, 2016, the Department of Health and Human Services issued a final rule that will impact all long-term care facilities participating in the Medicare or Medicaid programs. According to Centers for Medicare & Medicaid Services, the final rule “set[s] high standards for quality and safety, while providing facilities with important flexibilities,” and is grounded in person-centered care. The rule will be implemented in three phases, with the first phase effective Nov. 28, 2016, the second phase effective Nov. 28, 2017, and the third phase effective Nov. 28, 2018. Several notable provisions are summarized below:

1. 483.70(n) – Binding Arbitration Agreements

As of Nov. 28, 2016, long-term care facilities may no longer enter into pre-dispute binding arbitration agreements with their residents. This does not prohibit existing arbitration agreements or render them unenforceable. After a dispute occurs, a long-term care facility may enter into a binding arbitration agreement if the resident agrees, the resident’s right to remain in the facility is not contingent upon signing the arbitration agreement and other requirements are satisfied.

2. 488.301 – Definition of “Abuse” and “Willful”

Effective Nov. 28, 2016, abuse is defined as the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish. The rule defines “willful” to mean that an individual acts deliberately, not that he or she intends to inflict injury or harm. The rule commentary clarifies that there is a difference between deliberate and inadvertent or accidental. Additional guidance will be released that will aid facilities in implementing and clarifying this regulation.

3. 483.21(a) – Baseline Care Plan

As part of the second phase of implementation, effective Nov. 28, 2017, long-term care facilities will be required to complete and implement a baseline interim care plan or a comprehensive care plan for each resident upon their admission to the facility. The baseline care plan must be completed within 48 hours of admission and should be started upon admission. The purpose of such a plan is to serve as an interim care plan to avoid poor quality care and to reduce the risk of hospital readmission as a result of missing information. The information necessary to satisfy the requirements for a baseline care plan should be readily available or accessible through discussions and follow-up upon admission. A facility may develop a comprehensive care plan in place of the baseline care plan, so long as the comprehensive care plan satisfies the requirements in the rule.

4. 483.90 – Physical Environment

As of Nov. 28, 2016, long-term care facilities that are constructed, reconstructed or newly certified must accommodate no more than two residents per bedroom and must have a bathroom equipped with a commode and a sink in each room. The regulations clarify that reconstruction means that the facility undergoes reconfiguration of the space, such that the space is not permitted to be occupied, or the entire building or an entire occupancy within the building, such as a wing of the building, is modified. Where reconstruction involves a limited area within a building, only that area will have to be upgraded to meet the new requirements.

If you have questions regarding the substance or effect of this rulemaking, please contact a member of Taft’s Health & Life Sciences group.