The White House launched a new website at aging.gov, meant to serve as a one-stop shop for information on government agencies that serve older Americans and their families.  The Centers for Medicare and Medicaid Services pledged to improve the care received by more than one million nursing home residents nationwide by updating guidelines that dictate the standard of care that nursing homes must provide in order to qualify for government payments. Those guidelines were last updated in 1991. Currently, 1.5 million people live in more than 15,000 nursing homes and other long-term care facilities, according to a news release.

The Department of Health and Human Services also delivered a new national plan for Alzheimer’s disease, revealing actions that the federal government would take in the coming year to address a form of dementia which affects 5.3 million Americans. These actions include launching a $4 million campaign to teach older adults about changes in their brains and expanding research to find an effective treatment for the disease by 2025.

CMS’s proposed rule would require nursing home staff to be properly trained on how to care for dementia patients and how to prevent elder abuse and would require facilities to consider the health of residents when making decisions on the kinds and levels of staffing a facility needs.

The rule would require facilities to improve how they plan their care, provide more food choices for residents and allow dieticians and therapy providers the authority to write orders in their areas of expertise when a physician delegates the responsibility and when state licensing laws allow it.

Nursing home facilities would also be required to update their infection prevention and control programs. The rule would force facilities to name an infection prevention and control officer and create an antibiotic stewardship program with protocols and a system to monitor antibiotic use.

The proposed rule also aims to strengthen the rights of nursing home residents by placing limits on when and how binding arbitration agreements can be used.

At the White House Conference on Aging, the Centers for Medicare and Medicaid (CMS) proposed new rules to improve the care of approximately 1.5 million elderly who reside in more than 15,000 long-term care (LTC) facilities nationwide.

The proposal aims to reduce unnecessary hospital readmissions and infections, improve quality care, and strengthen safety measures for these Medicare and Medicaid beneficiaries, according to statement from the Department of Health and Human Services (HHS).

The proposal includes a requirement that a pharmacist review a LTC resident’s medical chart at least every 6 months, at the time the resident is new to the facility, when a prior resident returns or is transferred from a hospital or other facility, and during each monthly drug regimen review when a psychotropic drug or antibiotic is prescribed.  The pharmacist must document in a written report any irregularities during the drug review and share this information with the attending physician and the facility’s medical director and nursing director. The attending doctor must document the review of the identified irregularity in the resident’s medical chart.

In addition, CMS wants to limit the use of psychotropic drugs. If a resident is not using psychotropic medicine, that resident should not be given psychotropic drugs unless it is medically necessary. CMS also wants residents who are using these drugs to receive gradual dose reductions and behavioral intervention, eventually eliminating the need for these medications.

Psychotropic drugs prescribed as PRN—as needed—should be limited to 48 hours, according to the CMS proposal. “Orders could not be continued beyond that time unless the primary care provider reviewed the need for medication prior to renewal of the order, and documented the rationale for the order in the resident’s clinical record,” CMS noted.

For more information, download the proposed rule.

NPR had a great article on the new CMS rules applicable to nursing homes that receive taxpayer money through Medicare and Medicaid.  After nearly 30 years, CMS will modernize the standards nursing homes must follow to qualify for Medicare and Medicaid payments.  The hundreds of pages of proposed changes cover everything from meal times to use of antipsychotic drugs to staffing. The proposed regulations include a section on electronic health records and measures to better ensure that patients or their families are involved in care planning and in the discharge process. The rules also would strengthen infection control, minimize the use of antibiotic and antipsychotic drugs and reduce hospital readmissions.

“The existing regulations don’t even conceive of electronic communications the way they exist today,” said Dr. Shari Ling, Medicare’s deputy chief medical officer. “Also there have been significant advances in the science and delivery of health care that just weren’t imagined at the time the rules were originally written. For example, the risks of antipsychotic medications and overuse of antibiotics are now clearly known, when previously they were thought to be harmless.”

Consumer advocates are disappointed that officials are not including recommendations to set a federal nurse-to-resident ratio.  Nursing homes will be required to report staffing levels, which Medicare officials said they will review for adequacy.  Advocates for nursing home residents argue that because of inadequate staffing, residents with dementia are often inappropriately given antipsychotic drugs, even though that can be dangerous for them. The new rules would help control the use of these drugs by requiring the facility’s pharmacist to monitor drugs that are prescribed for excessive periods of time or other irregularities and require the resident’s physician to address the problem or explain in the resident’s medical record why the medication is necessary.

“We don’t have enough nursing staff,” Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy, said before the rules were released. Federal law requires only one registered nurse on the day shift for a 20-bed facility or as much as a 500-bed facility, licensed practical nurses around the clock and sufficient staff to meet residents’ needs, she said.

“The biggest problem is that the rules we have now are not enforced,” said Edelman. “We have a very weak and timid enforcement system that does everything it can to cajole facilities into compliance instead of imposing penalties for noncompliance.”  A report by the Center for Medicare Advocacy last year found that some serious violations often were not penalized.

 

We wanted to share American Association for Justice’s comments to Center for Medicare Services (CMS), on the potential review of 42 CFR 483 Subpart B.   If the Agency is going to change  regulations affecting the quality of health care in nursing homes, they should be focusing on patient safety and increased accountability through such things as eliminating arbitration clauses and eliminating over medication problems better know as chemical restraints.

 

The Fifth Circuit of the U.S. Court of Appeals decided Cedar Lake Nursing Home v. U.S. DHHS on February 10, 2010. Petitioner Cedar Lake Nursing Home ("Cedar Lake") challenges a $5,000 per-instance civil monetary penalty levied by the DHHS against Cedar Lake for violations of 42 C.F.R. § 483.25(h) which is part of OBRA that applies to all nursing homes that accept Medicaid or Medicare which is 85% of nursing homes in the United States. Below are excerpts of the decision rejecting Cedar Lake’s appeal

Cedar Lake is a nursing home that participates in the Medicare program. On February 20, 2008, a resident of Cedar Lake designated in the record as "Resident # 10" — a 92 year-old woman suffering from a variety of ailments — wandered away from the facility and was later discovered walking alone along a highway. Witnesses alerted Cedar Lake staff, who returned her to the facility. Cedar Lake’s alarm system, designed to prevent such "elopements" by residents, did not sound when Resident # 10 opened the door to leave the facility. Cedar Lake alleges through witness testimony that the alarm did not sound because an installation contractor responsible for installing a new alarm system disconnected the old system without informing Cedar Lake personnel.

After this incident, surveyors affiliated with the Centers for Medicare and Medicaid Division ("CMS") of the DHHS conducted a survey of Cedar Lake and determined the facility to be in violation of several Medicare-related regulations, including 42 C.F.R. § 483.25(h), which requires a nursing home to "ensure that — (1) the resident environment remains as free of accident hazards as is possible; and (2) each resident receives adequate supervision and assistance devices to prevent accidents." Specifically, the surveyors found that Cedar Lake violated 42 C.F.R. § 483.25(h) with respect to Resident # 10’s elopement incident. In response to these findings, CMS imposed a $5,000 per-instance civil monetary penalty on Cedar Lake for violations of 42 C.F.R. § 483.25(h).

Cedar Lake appealed this decision to an administrative law judge ("ALJ") and requested a hearing. After briefing, CMS moved for summary judgment on the grounds that the undisputed facts presented by the parties showed that Cedar Lake failed to take all reasonable steps to provide Resident # 10 with supervision adequate to prevent her elopement in violation of 42 C.F.R. § 483.25(h).[ 1 ]

In ruling on the motion for summary judgment, the ALJ considered Cedar Lake’s main factual presentation: affidavits by two Cedar Lake employees testifying that the alarm `s failure to sound upon Resident # 10’s departure was unforeseeable because the installation contractor had failed to inform Cedar Lake that the alarm had been disconnected. Accepting this testimony as true, the ALJ concluded that the remainder of the undisputed facts showed that Resident #10’s elopement was foreseeable and that Cedar Lake did not reasonably provide Resident #10 with enough supervision to prevent her wandering from the facility. See Cedar Lake Nursing Home, D.A.B. No. CR1967, at 7-8 (June 24, 2009).

The ALJ’s findings of undisputed fact included the following: that Resident #10 "had a history of wandering, was at high risk for elopement, and repeatedly attempted to leave the facility"; that Cedar Lake’s care plan for Resident #10 required staff to place the resident in an area "where constant observation is possible"; and that the facility’s care plan amendments for Resident # 10 included frequent observation in addition to the use of a door alarm.[ 2 ] Id. at 5-6. On the basis of these undisputed factual findings, the ALJ determined that Cedar Lake failed to take all reasonable steps to prevent Resident # 10’s elopement in violation of 42 C.F.R. § 483.25(h). The ALJ, thus, granted CMS’s motion for summary judgment and upheld the $5,000 per-instance civil monetary fine.

Cedar Lake appealed the ALJ’s grant of summary judgment to the Departmental Appeals Board, which affirmed the ALJ’s decision. Cedar Lake now seeks review in this Court.

_______

Reviewing the findings and conclusions at issue here under the deferential standards of the APA, we do not consider them to be arbitrary, capricious, not in accordance with the law, or unsupported by substantial evidence.

The ALJ determined that Cedar Lake’s actions with respect to Resident # 10 were in violation of 42 C.F.R. § 483.25(h)(1)-(2), which require a nursing facility to ensure that the resident environment remains as free of accident hazards "as is possible" and that each resident receives "adequate supervision and assistance devices to prevent accidents." The standard of care imposed by these "as is possible" and "adequate supervision" regulations has been consistently interpreted by the DHHS and federal courts as a "reasonableness" standard. See Fal-Meridian, 604 F.3d at 449; Crestview, 373 F.3d at 754; Woodstock Care Center v. Thompson, 363 F.3d 589-90 (6th Cir. 2003); see also Kenton Healthcare, LLC, D.A.B. No. CR1666, at 5 (Sept. 28, 2007).

Based on specific, undisputed findings of fact, the ALJ determined and the Departmental Appeals Board affirmed that Cedar Lake’s actions with respect to Resident # 10 were not reasonable under the standard of 42 C.F.R. § 483.25(h), in that Cedar Lake did not take all reasonable steps to prevent her from wandering out of the facility. The A LJ’s undisputed findings of fact in support of this determination include not only the February 20, 2008 incident in which Resident # 10 wandered away from the facility, but also Resident # 10’s history of wandering, Cedar Lake’s prior knowledge of Resident # 10’s propensity to wander, and Cedar Lake’s previous development of a care plan that involved frequent observation and other measures designed to prevent Resident # 10 from wandering. See Cedar Lake Nursing Home, D.A.B. No. CR1967, at 7-8 (June 24, 2009).

Moreover, the primary facts presented by Cedar Lake, even when taken as true by the ALJ, failed to alter these core factual findings. Indeed, the ALJ accepted as true Cedar Lake’s main factual presentation— affidavits by employees testifying to the effect that the installation contractor did not inform Cedar Lake that the alarm was to be turned off— but held that such facts did not show that Resident #10’s elopement was unforeseeable nor demonstrate that Cedar Lake’s actions were reasonable under 42 C.F.R. § 483.25(h). Id. at 7-8.

These findings and conclusions of the ALJ and the Departmental Appeals Board with regard to the unreasonableness of Cedar Lake’s safety and supervision measures under 42 C.F.R. § 483.25(h) are not arbitrary, capricious, not in accordance to the law, or unsupported by substantial evidence. Therefore, this petition for review is DISMISSED.

This copy provided by Leagle, Inc.
 

In a landmark opinion that recognizes a new cause of action for nursing home residents, the 3rd U.S. Circuit Court of Appeals has ruled that the Federal Nursing Home Reform Amendments give residents of county-run nursing homes the right to bring claims to challenge the quality of their treatment.   This is a huge victory for consumers of nursing homes.  Hopefully, other Courts will follow the sound reasoning and adopt the holding.

"The language used throughout the FNHRA is explicitly and unambiguously rights-creating," U.S. Circuit Judge Richard L. Nygaard wrote in his 23-page opinion in Grammar v. John J. Kane Regional Centers.   "These provisions make clear that nursing homes must provide a basic level of service and care for residents and Medicaid patients," Nygaard wrote.

"The FNHRA are replete with rights-creating language. The amendments confer upon residents of such facilities the right to choose their personal attending physicians, to be fully informed about and to participate in care and treatment, to be free from physical or mental abuse, to voice grievances and to enjoy privacy and confidentiality," Nygaard wrote.

Under the law, Nygaard said, nursing homes "are required to care for residents in a manner promoting quality of life, provide services and activities to maintain the highest practicable physical, mental and psychosocial well-being of residents, and conduct comprehensive assessments of their functional abilities."

Nygaard also found that the statute "specifically guarantees nursing home residents the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat their medical symptoms."

Congress also chose key phrases that Nygaard found to be clear indications that private lawsuits should be allowed. "The repeated use of the phrases ‘must provide,’ ‘must maintain’ and ‘must conduct’ are not unduly vague or amorphous such that the judiciary cannot enforce the statutory provisions," Nygaard wrote.

As further evidence that Congress intended to create a private right of action, Nygaard noted that the FNHRA "use the word ‘residents’ throughout," and their provisions "are constructed in such a way as to stress that these ‘residents’ have explicitly identified rights, such as ‘the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat the resident’s medical symptoms.’"

In the case of the FNHRA, Nygaard said: "[O]ur independent examination and assessment of the Medicaid Act disclosed no evidence of congressional intent to preclude enforcement of the rights created by the various provisions of this statute. This is so because no provision contains express terms to that effect and no comprehensive remedial scheme is established by the provisions at issue."

 

Inevitably in most of our nrsing home cases, numerous documents that are intended to show the care, treatment, and services provided to the resident are missing, lost, or never done by the staff.  This occurs because the care was not provided or understaffing caused the staff not to have time to document or poorly trained and supervised staff.  Despite the fact that all nurses were taught and accept the axiom that "If it wasn’t documented, it wasn’t done", the insurance companies, nursing home industry, and their defense counsel always say the missing information is not relevant and does not show that the care wasn’t given but rather wasn’t documented.  Hopefully, the new Medicare reimbursement policies will preclude this frivolous argument.

McKnight’s has an article discussing the new Medicare reimbursement policies and the necessity of documentation to prove care provided.  Nursing homes will have a greater role in ensuring accurate documentation of care.    Compliance officers’ experience in billing and coding could be easily transferred to the area of quality-of-care forms.  Physicians and care workers will need to learn the appropriate language from compliance officers to best fill out the claims forms.

The Center for Medicare & Medicaid (CMS) is the component of the Federal Government’s Department of Health and Human Services that oversees the Medicare and Medicaid programs. 

Medicaid and Medicare dollars are used to cover nursing home care and services for the elderly and disabled. State governments oversee the licensing of nursing homes. In addition, State have a contract with CMS to monitor those nursing homes that want to be eligible to provider care to Medicare and Medicaid beneficiaries. Congress established minimum requirements for nursing homes that want to provide services under Medicare and Medicaid. These requirements are broadly outlined in the Social Security Act (the Act). The Act also entrusts the Secretary of Health and Human Services (DHHS) with CMS, a DHHS Agency, is also charged with the responsibility of working out details of the law and how it will be implemented, which it does by writing regulations and manuals.

CMS contracts with each State to conduct onsite inspections that determine whether its nursing homes meet the minimum Medicare and Medicaid quality and performance standards. The State conducts inspections of each nursing home that participates in Medicare and/or Medicaid about once a year.  The State also investigates complaints about nursing home care.

During the nursing home inspection, the State looks at many aspects of quality. The inspection team observes resident care processes, staff/resident interaction, and environment. Using an established protocol of residential rights, the team interview a sample of residents and family members bout their life within the nursing home, and interview caregivers and administrative staff. 

Depending on the nature of the problem, the law permits CMS to take a variety of actions; for example, CMS may fine the nursing home, deny payment to the nursing home, assign a temporary manager, or install a State monitor. CMS considers the extent of harm caused by the failure to meet requirements when it taken an enforcement action. If the nursing home does not correct its problems, CMS terminates its agreement with the nursing home. As a result, the nursing home is no longer certified to provide care to Medicare and Medicaid beneficiaries. Any beneficiary residing in the home at the time of the termination are transferred to certified facilities.

Sometimes Defendants try to file an early motion to dismiss on Plaintiff’s negligence per se cause of action. Here is a recent case that will help you overcome Defendant’s Motion to Dismiss.

"It is obvious that as a resident of the nursing home owned by Mariner, McLain’s father belonged to the class of persons for whom these statutes and regulations were intended to protect, and that the injuries set forth in the complaint, and which we assume to have occurred for purposes of a motion to dismiss, were among those these same statutes and regulations were designed to prevent. Likewise, the complaint’s allegations of violations of the same statutes and regulations would be competent evidence of Mariner’s breach of duty under a traditional negligence action. The trial court therefore erred when it granted Mariner’s motion to dismiss McLain’s negligence per se and negligence causes of action. McClain v. Mariner, 631 S.E.2d 435 (Ga. 2006)

Golden Villa v. Smith, 674 S.W.2d 343 (Tex. App. 1984)
OBRA regulations are admissible since a violation of rules which specify a maximum standard of care can provide a plaintiff with a prima facie case of negligence against a nursing home.