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The CMS final rule: Twist and shout, but we can work it out

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In Twist and Shout, the Beatles famously sang, “Well, shake it up baby.” And, that is precisely what the Centers for Medicare and Medicaid Services (CMS) just did. On October 4, 2016, CMS published its Final Rule, Reform of Requirements for Long Term Care Facilities, in the Federal Register.[i] The long-anticipated final rule imposes the most sweeping changes to the long term care industry since 1991.  Not surprisingly, CMS received almost 10,000 comments prior to the adoption of the final rule.

According to Dr. Susan Levy, President of AMDA, The Society for Post-Acute and Long-Term Care Medicine, “AMDA is pleased that CMS listened and incorporated some changes into the initial proposed rule based on comments….CMS also revised the rules to incorporate additional regulations around recent areas of focus such as QAPI, infections and transitions of care.” 

The regulatory topics in the final rule

Pre-dispute Arbitration Agreements

Perhaps the most controversial aspect of the final rule, which has already come under legal challenge, is the provision prohibiting pre-dispute arbitration.

In spite of strong opposition, CMS banned pre-dispute arbitration agreements in its final rule. According to Mark Parkinson, president of the American Health Care Association (AHCA), “AHCA is extremely disappointed that CMS included in the final rule a provision banning all pre-dispute arbitration agreements.” Parkinson noted that banning pre-dispute arbitration agreements “clearly exceeds CMS’s statutory authority and is wholly unnecessary to protect residents’ health and safety.” Consequently, AHCA, joined by the Mississippi Health Care Association and three nursing homes, filed a complaint in the U.S. District Court for the Northern District of Mississippi, asserting that CMS lacks the authority to forbid pre-arbitration agreements based on the Federal Arbitration Act, which favors arbitration.

Providing little consolation to the long-term care industry, CMS’ Acting Administrator Andy Slavitt has said that “facilities and residents will still be able to use arbitration on a voluntary basis at the time a dispute arises… [as long as they are] clearly explained to residents, including the understanding that the arbitration agreements are voluntary and that these arbitration agreements should not prevent or discourage residents and families from talking to authorities about quality of care concerns.”[ii] Meanwhile, the ban on pre-dispute arbitration goes into effect on November 28, 2016. In future columns, we will report on how the courts deal with this contentious issue.

The other new requirements included in the final rule will be phased in over a three-year period. Providers can expect to see a new survey process beginning in November 2017 (the second phase of implementation) when the QIS survey will be merged with the traditional survey.

Given the broad nature of the final rule, only a very brief and partial overview of some of the salient requirements is listed below.[iii]

New Definitions (42 CFR 483.5)

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Alan C. Horowitz

Partner at Arnall Golden Gregory

Alan C. Horowitz

www.agg.com

Alan C. Horowitz, Esq., is a partner at...

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