health-reform-and-LTC-facilities.pdf

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Los Angeles, CA: 3435 Wilshire Blvd., Suite 2860 Los Angeles, CA 90010 213-639-0930 Fax: 213-639-0934

Oakland, CA: 1330 Broadway, Suite 525 Oakland, CA 94612 510-663-1055 Fax: 510-663-1051

April 2010

Health Care Reform & Long-Term Care Facilities

With the enactment of thePatient Protection and Affordable Care Act(PPACA) on March 21,2010, health care reform finally became a reality. This historic legislation will impact virtuallyevery facet of the nations healthcare system and provides numerous opportunities for millions ofindividuals to receive services to which they currently lack access. Low-income older adults areamong those who will be impacted by the new law.

This issue brief provides an in-depth analysis of provisions that impact long-term care facilities.The provisions fall into three broad categories:information disclosure and quality of care;

enforcement andstaff employment and training.

This issue brief is part of a series of issue briefs prepared by NSCLC which discuss the impact ofthe new law on low-income older adults.1 NSCLC looks forward to working with its partners toensure that these provisions are implemented to the benefit of our mutual clients.

INFORMATION DISCLOSURE AND QUALITY OF CARE

Disclosure of Information Regarding Nursing Facilities Ownership and Management

The health care reform law requires a nursing facility to disclose extensive information regarding

the persons and entities that own, control, or manage the facility. The facility must discloseinformation regarding each person or entity who is an officer, director, member, partner, trustee,or managing employee of the facility, including the name, title, and period of service of eachsuch person or entity. The disclosure also must address corporate structures, by includingorganizational information that describes the legal interrelationships between the entities and realpersons that own or manage the facility.

The Centers for Medicare & Medicaid Services (CMS) is required to publish implementingregulations within two years of the reform laws enactment. Nursing facilities will have anadditional 90 days to submit the required information pursuant to the regulations, and theinformation will be available to consumers within one year after the release of the regulations.

Effective immediately, the same information is available upon request to the federal and stategovernments, and each states long-term care ombudsman program.

1The others are:Health Care Reform & Low-Income Adults: An Overview;Health Care Reform & the Individual

Mandate;The Medicaid Long-Term Services and Supports Provisions in the Health Care Reform Law;Health Care

Reform, Dual Eligibles & Coverage Expansion;andHealth Care Reform: Medical Assistance as Payment. All of

our health reform issue briefs are available atwww.nsclc.org.

National Senior Citizens Law Center

1444 Eye St., NW, Suite 1100 Washington, DC 20005 202-289-6976 Fax: 202-289-7224 www.nsclc.org
http://www.nsclc.org/areas/medicare-part-d/health-reform-overviewhttp://www.nsclc.org/areas/medicare-part-d/health-reform-overviewhttp://www.nsclc.org/areas/medicare-part-d/health-reform-overviewhttp://www.nsclc.org/areas/federal-rights/mandatory-health-insurance-is-it-constitutional/http://www.nsclc.org/areas/federal-rights/mandatory-health-insurance-is-it-constitutional/http://www.nsclc.org/areas/federal-rights/mandatory-health-insurance-is-it-constitutional/http://www.nsclc.org/areas/federal-rights/mandatory-health-insurance-is-it-constitutional/http://www.nsclc.org/areas/medicaid/health-reform-ltsshttp://www.nsclc.org/areas/medicaid/health-reform-ltsshttp://www.nsclc.org/areas/medicaid/health-reform-ltsshttp://www.nsclc.org/areas/medicare-part-d/health-reform-dualshttp://www.nsclc.org/areas/medicare-part-d/health-reform-dualshttp://www.nsclc.org/areas/medicare-part-d/health-reform-dualshttp://www.nsclc.org/areas/medicare-part-d/health-reform-dualshttp://www.nsclc.org/areas/medicaid/health-reform-medical-assistance/at_download/attachmenthttp://www.nsclc.org/areas/medicaid/health-reform-medical-assistance/at_download/attachmenthttp://www.nsclc.org/areas/medicaid/health-reform-medical-assistance/at_download/attachmenthttp://www.nsclc.org/areas/medicaid/health-reform-medical-assistance/at_download/attachmenthttp://www.nsclc.org/http://www.nsclc.org/http://www.nsclc.org/http://www.nsclc.org/http://www.nsclc.org/http://www.nsclc.org/http://www.nsclc.org/http://www.nsclc.org/http://www.nsclc.org/areas/medicaid/health-reform-medical-assistance/at_download/attachmenthttp://www.nsclc.org/areas/medicare-part-d/health-reform-dualshttp://www.nsclc.org/areas/medicare-part-d/health-reform-dualshttp://www.nsclc.org/areas/medicaid/health-reform-ltsshttp://www.nsclc.org/areas/federal-rights/mandatory-health-insurance-is-it-constitutional/http://www.nsclc.org/areas/federal-rights/mandatory-health-insurance-is-it-constitutional/http://www.nsclc.org/areas/medicare-part-d/health-reform-overview


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Nursing Home Compare Website

Required Information and its Presentation

The health care reform law requires that the following additional information be posted on

CMSs Nursing Home Compare website,www.medicare.gov/nhcompare:

Staffing data for each facility, including the hours of care provided per resident per day,information on staffing turnover and tenure, and discussions of how staffing affectsquality and how different resident needs might demand different staffing levels;

Links to state Internet websites with information regarding state survey and certificationprograms;

Links to state-issued inspection reports, with information on how those reports should beinterpreted;

The standardized complaint form (as discussed above);

Instructions on how to file a complaint with the survey agency or the state long-term care

ombudsman program;Summary information on the number, type, severity, and outcome of substantiatedcomplaints against a facility; and

The number of adjudicated instances of criminal violations by a nursing facility or itsemployees that were committed inside the facility or, of those crimes, were instances ofabuse or exploitation.

The specified information must be available within one year of the health care reform lawsenactment.

CMS also must establish a process to review the accuracy, clarity of presentation, timeliness, and

comprehensiveness of information reported on Nursing Home Compare, and to make necessaryrevisions. In performing the review, CMS must consult with state long-term care ombudsmanprograms, consumer advocacy groups, provider stakeholder groups, and others. Any necessaryrevisions must be implemented within one year of the health care reform laws enactment.

To improve the timeliness of the website's information, states must provide inspectioninformation to CMS at the same time that the information is presented to the affected facilities.In turn, CMS must update the information on Nursing Home Compare at least quarterly.

Also, the Nursing Home Compare website must be modified to include a consumer rights pagethat explains the facility-specific information that is available to consumers, and includes tips on

choosing a nursing facility, along with consumer rights information and a state-specificdescription of the services available through the long-term care ombudsman program.

These provisions become effective within one year of the reform law's enactment.
http://www.medicare.gov/nhcomparehttp://www.medicare.gov/nhcomparehttp://www.medicare.gov/nhcomparehttp://www.medicare.gov/nhcompare


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Report on Five-Star Quality Rating System

For approximately the past two years, every nursing home has received a rating from one to fivestars on the Nursing Home Compare website, based on the facilitys inspection records, staffinglevels, and its record on certain clinical measures called quality measures. Ever since then

provider groups have complained that the Five Star Quality Rating System does not accuratelyreflect a facilitys quality.

The health care reform law requires the Government Accountability Office to conduct a study ofthe Five-Star System. A report must be submitted to Congress within two years of the enactmentof the health care reform law, including the results of the study along with recommendations (ifany) for legislation or administrative action.

State Websites

Each state is required to develop and maintain a consumer-oriented website providing useful

information regarding each of the state's nursing facilities. The information must includeinspection results along each facility's corresponding plan of correction.

Special Focus Facilities

In a provision which amends the Nursing Home Reform Law to reflect current procedures, CMSis directed to develop a special focus facility program for enforcement of the nursing facility lawagainst facilities that have repeatedly been out of compliance. Such facilities must be inspectedat least once every six months.

Availability of Inspection Reports

A nursing facility must have inspection reports from the previous three years available for reviewupon request. So that consumers will know of this option, the facility must post notice of thereports' availability in a prominent place within the facility.

Reporting of Nursing Facility Expenditures

For cost reporting periods beginning two or more years after the enactment of the health carereform law, nursing facilities must separately report expenditures for wages and benefits fordirect care staff, breaking out registered nurses, licensed nurses, nurse aides, and other medicaland therapy staff members. CMS will prepare a modified cost report form in order to capture therequired information.

Not later than 30 months after the enactment of the health care reform law, CMS along withother relevant agencies must separate expenditures into the following categories on an annualbasis:

Spending on direct care services (including nursing, therapy, and medical services);

Spending on indirect care (including housekeeping and dietary services);


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Capital assets (including building and land costs); and

Administrative services costs.

This expenditure information shall be made available to interested parties upon request.

Accurate Reporting of Staffing Data

Nursing facilities will be required to submit their direct-care staffing levels electronically toCMS, with the data to be based on the facilitys payroll and other auditable data. Submissionwill utilize a format to be developed by CMS. The reported levels must specify the type ofemployee (e.g., registered nurse, licensed nurse, certified nurse aide, etc.). Also, to put theinformation in context, the information must include resident census data and information onresidents care needs. The reported data will include information on employee turnover and

tenure, and on the hours of care provided by each category of certified employees. Informationon temporary agency and contract staff will be reported separately from information relating toregular employees.

These requirements will become effective two years after enactment of the health care reformlaw. In the development of the procedures, CMS is required to consult with state long-term careombudsman programs, consumer advocacy groups, provider stakeholder groups, and employeesand their unions.

ENFORCEMENT

Civil Money Penalties

Reductions for Self-Reported Violations

The health care reform law authorizes CMS to reduce a money penalty against a nursing facilityby up to 50 percent if the facility self-reports the violation and then corrects the deficiency withinten days of the penaltys imposition. Such reductions are not available ifa penalty for the sameviolation had been reduced under this procedure within the preceding year, or if the penalty hadbeen imposed for a deficiency that had caused a pattern of harm, immediately jeopardized aresidents health or safety, or caused a residents death.

Appeals of Penalties

For all civil money penalties, a facility will be able to participate in an independent dispute

resolution process. If a per diem penalty has been assessed, the per diem penalty will not beginaccruing until the informal dispute resolution process has concluded.

CMS will have authority to require that money penalties be placed into an escrow account asthey accrue, to be retained pending the resolution of any appeals. If the facility eventuallyprevails, the escrowed amounts may be returned with interest.


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Some portion of collected penalty amounts may be used to support activities that benefitresidents. These activities include but are not limited to the protection of residents whenfacilities close, the promotion of resident and family councils, and facility improvementinitiatives approved by CMS. Such facility improvement initiatives include the joint training offacility staff and surveyors, technical assistance for facilities implementing quality assurance

programs, and the appointment of temporary management firms.

Each of these provisions will take effect one year after the enactment of the health care reformlaw.

Oversight of Nursing Facility Chains

CMS and the HHS Inspector General will conduct a demonstration project for an independentmonitor program overseeing interstate and intrastate nursing facility chains. The demonstrationproject will include nine chains from among chains that apply to be included. The demonstrationproject will run for two years, starting within one year from the enactment of the health care

reform law.

Selection of chains will be based in part on evidence that a number of the chains facilities are

experiencing significant problems with quality of care.

An independent monitor will conduct periodic reviews and perform root cause quality anddeficiency analyses of a chain. The monitor also will analyze such factors as managementstructure, expenditures, staffing levels, staff turnover rates, and employee tenure. The monitorwill report findings and recommendation to the chain, and to federal and state governments, andwill publish the results of the monitors reviews and analysis.

Within ten days of receiving a recommendation from an independent monitor, a chain mustsubmit to the monitor a report that outlines how the chain will implement the recommendationsor, alternatively, why the chain will not implement the recommendations.

Chains will be responsible for the cost of a monitor. The money will be paid to CMS, which inturn will pay the monitor.

CMS and the HHS Inspector General will evaluate the independent monitor project, and willsubmit a report with recommendation to Congress within 180 days after completion of thedemonstration project.

Nursing Facility Closures

A facility must provide written notice of the facilitys closure at least 60 days before a scheduledvoluntary closure and, in the case of a government decertification, at a time specified by thegovernment. The notice must be provided to CMS, the state long-term care ombudsmanprogram, and facility residents and their representatives. The notice must include a plan for thetransfer and relocation of each resident.


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Facility administrators who violate these requirements are subject to civil monetary penalties ofup to $100,000 and exclusion from federal health care programs.

National Demonstration Projects on Culture Change and Information Technology

CMS is instructed to conduct two demonstration projects: one for the development of bestpractices in nursing facilities that are involved in the culture change movement, and another forthe development of best practices in nursing facilities for the use of information technology toimprove resident care.

Under each demonstration project, CMS will award one or more grants to facility-based settings.Each demonstration project must consider the special needs of residents with dementia. Thedemonstration projects must commence within one year of the enactment of the health carereform law, and conclude within three years after commencement. CMS must submit a report toCongress within nine months after the completion of the demonstration projects, including anyrecommendations for legislation or administrative action.

Surveyor Training

CMS is directed to contract with an entity to establish a National Training Institute for federaland state surveyors. This Institute shall provide and improve training of surveyors with respectto investigating allegations of abuse, neglect, and misappropriation of property in programs andlong-term care facilities that receive payments under Medicare or Medicaid.

The Institute will assess the extent to which state agencies use specialized surveyors forallegations of abuse, neglect, or misappropriation. Also, the Institute will evaluate howsurveyors can be used more effectively, and provide a national program oftraining and technical assistance. The Institute will develop best practices, assess theperformance of state complaint intake systems, and conduct annual analyses of complaints andinvestigations.

Complaint Investigation by Survey Agencies

CMS is authorized to make grants to state survey agencies to develop complaint investigationsystems that prioritize complaints promptly, respond effectively, and optimize collaboration.Five million dollars is authorized for each of fiscal years 2011 through 2014.

Long-Term Care Ombudsman Program

CMS is authorized to make grants to eligible entities to improve the capacity of state long-termcare ombudsman programs, and conduct pilot programs within ombudsman programs. Fivemillion dollars is authorized for fiscal year 2011, with higher amounts available in each of thethree following years.

CMS also is required to establish programs to provide and improve ombudsman training fornational organizations and state long-term care ombudsman programs, with respect to elder


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abuse, neglect, and exploitation. Ten million dollars is appropriated for each of fiscal years 2011through 2014.

Reporting of Crimes Occurring in Nursing Facilities and Other Long-Term Care Facilities

Reporting of crimes is mandated in any long-term care facility that annually receives at least$10,000 in federal funding. This category will include virtually all nursing facilities and someassisted living facilities. The obligation extends to managers and employees.

If there is a reasonable suspicion of a crime committed against a resident of a long-term carefacility, a report must be made to CMS and to law enforcement. The report must be made within24 hours, or within two hours if the crime resulted in serious bodily injury.

Failure to report can result in penalties of up to $200,000 (sometimes $300,000) and exclusionfrom federal health care programs. Additional penalties are imposed for retaliation against anemployee for making a report or conducting another legal activity.

Each long-term care facility must post a notice that specifies employees rights under theseprovisions.

STAFF EMPLOYMENT AND TRAINING

Dementia and Abuse Prevention Training

Required training in nursing facilities must include training in dementia care and abuseprevention. Also, in a clarification, the minimum training requirements for nurse aides nowexplicitly apply to persons who provide services through an agency.

These provisions take effect one year after the enactment of the health care reform law.

Nationwide Program of Background Checks

CMS is required to establish a program to develop a process for nationwide background checksfor direct-care employees. The program will be conducted through agreements made betweenCMS and states. The checks will be used for nursing facilities, and also for home healthagencies, hospice agencies, long-term care hospitals, adult day health care providers, assistedliving facilities providing a level of care determined by CMS, and other appropriate careproviders as determined by the state.

The background checks will require fingerprint checks. Systems must have a rap back

capacity so that subsequent criminal convictions automatically are reported to CMS, and then tothe states and the long-term care employer. States must provide processes to allow for appealsby disqualified persons, and those appeals must give consideration to the passage of time,extenuating circumstances, demonstration of rehabilitation, and the relevance of thedisqualifying event, given the persons current employment.


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A single state agency must be responsible for coordinating nationwide criminal backgroundchecks.

The programs will receive federal funding, but with a non-federal match from each state. Thefederal payment will be three times the amount of the state match

The HHS inspector general will conduct an evaluation of the nationwide program. Theevaluation must include a review of state procedures, and assessments of the cost of conductingbackground checks, of unintended consequences, and of the programs effectiveness in reducing

the incidence of neglect, abuse, and misappropriation of property. A report will be submitted toCongress within 180 days of the completion of the nationwide program.

National Nurse Aide Registry

CMS must conduct a study on establishing a national nurse aide registry. The study will include(among other things) an evaluation of who should be included in the registry, how such a registry

would comply with privacy laws, how data would be collected, and how the functions of theregistry would be coordinated with the nationwide background checks discussed immediatelyabove.

CMS must submit a report on the study within 18 months after the enactment of the health carereform law. Funding for the study will not exceed $500,000. After receiving the report, theCommittee on Finance of the Senate, and the Committee on Ways and Means and the Committeeon Energy and Commerce of the House of Representatives will, as they deem appropriate, takeaction based on the reports recommendations.

Incentives for Employment in Long-Term Care Direct Services

CMS will provide incentives to support direct-care workers in long-term care. CMS willcoordinate with the Labor Department to attract and train long-term care staff. CMS will makegrants to eligible entities to provide training, and to provide bonuses to employees who achievecertifications. The goal is to create career ladders for direct-care employees.

CMS also will provide grants to entities to promote management practices designed to retaindirect-care employees. Such practices include but are not limited to the promotion of a culturethat respects caregivers and residents, and policies that reward high performance.

CMS grants also are authorized to long-term care facilities to implement electronic healthrecords. In a related matter, CMS is directed to adopt electronic standards for the exchange ofclinical data by nursing facilities.

For these activities, $20 million is authorized for fiscal year 2011, with slightly lesser amountsauthorized for each of the three following years.

For more information on the long-term care facility provisions in the new health reform lawcontact Eric Carlson [email protected].
mailto:[email protected]:[email protected]:[email protected]:[email protected]

Documents

health-reform-and-LTC-facilities.pdf