Time to Tighten the ROP – CMS Issues Revised Guidance on Requirements of Participation for Long-Term Care Facilities Effective October 24, 2022

The Centers for Medicaid and Medicare Services (“CMS”) published revised guidance on the Requirements of Participation (“ROP”) and standards for Long-Term Care (“LTC”) facilities on June 29, 2022. The updated guidance clarifies and corrects prior CMS guidance issued in 2017 and 2019 and intended to improve nursing facility quality. In addition to refocusing nursing facilities on quality and away from survival and pandemic waivers, the revisions reflect lessons learned from the COVID-19 public health emergency. The revised guidance goes into effect October 24, 2022.

Staffing Requirements

One of CMS’ focuses in the ROP revisions is to address the staffing needs required by LTC facilities to safely and effectively provide care. The pandemic triggered significant new retention issues, and CMS is requiring LTC facilities to demonstrate that they have the necessary staff available to provide resident care. The revised ROP guidance will require surveyors to incorporate the use of Payroll Based Journal staffing data in inspections to assess LTC facility staffing shortages. PBJ data will also allow surveyors to readily document noncompliance with staffing requirements, such as the presence of a registered nurse for eight hours each day and a licensed nurse for 24 hours a day.

Health and Safety

The pandemic also prompted a requirement that all LTC facilities have an Infection Preventionist (not just an occasional contractor) to mitigate and address the spread of infections within the facility. The Infection Preventionist must have specialized training per the ROP guidance and should oversee the facility’s infection prevention and control program. In addition, LTC facilities must continue to inform staff to implement standard precautions such as hand hygiene and transmission-based precautions.

Other updates have been made regarding facility requirements for smoking policies – in  particular the use of e-cigarettes – and requires an assessment as to the resident’s ability to safely utilize e-cigarettes. The facility must also develop policies that balance all residents’ safety with an individual resident’s right to use these devices while also considering the rights of resident’s who do not wish to be exposed to second-hand aerosol.

Resident Rights and Individualized Care

The ROP guidance also takes further steps to assure that residents receive privacy and that care plans, services, and other aspects of a resident’s care while at the facility are targeted to address each resident’s individualized needs and background. The new ROP guidance emphasizes the importance of reducing the number of residents in each room to respect residents’ right to privacy while also preventing the spread of infection. The pandemic highlighted the need to reduce the spread of infection, and CMS has urged that providers only allow a maximum of double occupancy in each room and take efforts to accommodate more single occupancy rooms in their facilities.

The ROP changes now require that services provided or arranged by the facility must be culturally-competent and trauma-informed. “Cultural competence” requires valuing diversity, conducting self-assessments, avoiding stereotypes, and adapting to diversity and cultural context in communities. Cultural considerations include racial and ethnic diversity, religious preference, sexual orientation, and gender identify. Under the ROP guidance, “trauma-informed care” recognizes the widespread impact, and signs and symptoms of trauma in residents, and incorporates knowledge about trauma into care plans, policies, and procedures to avoid re-traumatization. Residents of LTC facilities may include trauma survivors such as military veterans, survivors of large-scale natural and human-caused disasters, Holocaust survivors, survivors of abuse or other violent crime, as well as residents who have a history of imprisonment, homelessness, or other traumatic events. These provisions further strive to ensure that facilities respect resident rights and meet individual resident needs, considering the individual’s specific culture and background experiences and limiting potential triggers that could re-traumatize the resident. The ROP guidance provides examples of potential triggers and identifies potential deficiencies.

Abuse, Neglect, and Crime

The Government Accountability Office identified significant variation among states in reporting, tracking, and processing reports of abuse and neglect. Therefore, there has been significant revision to the guidance on abuse and neglect, with a specific emphasis on ensuring timely investigations. The ROP guidance also addresses Facility Reported Incidents (“FRIs”) and includes new examples of cases and information that LTC facilities must report, such as staff to resident abuse, resident to resident altercations, injuries of unknown source, misappropriation of resident property or exploitation, and mistreatment. The revised ROP guidance seeks to ensure that policies and procedures are consistent with federal requirements, revises timeframes for investigation to allow for more immediate investigations, requires that allegations of abuse, neglect, and exploitation are tracked in CMS’ system, and requires that all suspected crimes be reported to law enforcement timely.

There are additional provisions directing facilities to develop policies and procedures that encourage reporting of reasonable suspicions of crime and to prevent retaliation against employees who report reasonable suspicions of crime, as well as investigative protocol for surveyors to utilize if there has been an allegation of retaliation by the facility against a covered individual. The facility should also ensure that its written policies and procedures that define how staff will communicate and coordinate situations of abuse, neglect, misappropriation of resident property, and exploitation with the Quality Assurance and Performance Improvement (“QAPI”) program.

CMS also revised the Psychosocial Outcome Severity Guide to further protect a resident’s right to be free from abuse. The revised guidance clarifies the “reasonable person” concept by noting that the survey team should determine the severity of the psychosocial outcome or potential outcome the deficiency may have had on a reasonable person in the resident’s position. The guidance clarifies that the psychosocial harm may sometimes take months or years to manifest and thus assessing the likely psychosocial outcome on a reasonable person is imperative. The updates list examples of incidents that would fall under certain severity levels. The ROP revisions also caution surveyors from assuming every incident is one of abuse and directs LTC facilities to take extra steps to protect residents from abuse, including evaluations as to resident capacity for consent to sexual activity. There are updates regarding the definition of neglect and instances where CMS believes a deficiency citation for neglect is required.

Mental Health and Substance Use Disorders

Mental health and substance use disorder rates rose during the pandemic, and the revised guidance reflects CMS’s efforts to better meet these needs in LTC facility residents. The updates include clarifications regarding the minimum level of knowledge and skills of facility staff to ensure that residents rights are not infringed upon while addressing the needs of residents with mental health and/or substance use challenges. Facility staff should have knowledge of signs and symptoms of potential substance use and must be prepared to address emergencies such as an overdose through increased monitoring, administering naloxone, initiating CPR as appropriate, and contacting medical services. However, in continuing to respect and protect residents’ rights, the ROP guidance clarifies that if there are signs of illegal substance use, staff should not search the resident’s belongings and may only search the resident or the resident’s belongings if the resident voluntarily agrees. LTC facilities are encouraged to refer such cases to law enforcement. Finally, surveyors are cautioned that instances of overdose are not automatic indicators of noncompliance, as LTC facilities are not expected to fully cure residents of their underlying disease or substance use disorder and drug overdoses can be expected in these individuals.

Admission, Discharge, and Transfer

The guidance provides additional revision on facility admissions, discharges, and transfers. If a facility initiates a discharge while the resident is in the hospital, the facility must document that the resident’s status – at the time the resident is seeking to return to the facility – meets the discharge criteria. There is also additional guidance about providing notice of a transfer or discharge to ensure residents and their representations receive complete and accurate information in the notice provided. New examples of deficiencies and severity levels are provided.

While ROP amendments in 2019 prohibited LTC facilities from requiring residents to sign binding arbitration agreements as a condition of admission or continued care, the revised guidance provides further requirements in the event that an arbitration provision is made part of a resident’s agreement. Residents must be allowed to choose a neutral arbitrator, and facilities must make the arbitrator’s final decision available for CMS’ review.

Conclusion

There are other significant revisions and additional clarification made to topics throughout the ROP, including resident rights, diagnosis and assessment, and the use of non-psychotropic drugs in addition to antipsychotics. CMS has made guidance and training materials for surveyors and providers in the Quality, Safety, and Education Portal, available at https://qsep.cms.gov/welcome.aspx. Providers should familiarize themselves with these revised ROP requirements to ensure that their facilities are compliant before the requirements become effective and utilized in surveys beginning October 24, 2022.

If you or your organization have questions about the new requirements, please contact Peter Mellette, Harrison Gibbs, Elizabeth Coleman, or Trace Hall at Goodman Allen Donnelly.

This client advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.