The changing season of CMS

So what better to do on a cold rainy Monday than read the new long-term care regulations? The standard PDF file is 713 pages, the small text in the Federal Register a mere 186 pages. A full day of cold rain is not the end of the world, neither is the new regulatory regime. But long-term care providers are facing a serious transition to a new regulatory regime.

Is this the new era of healthcare, and will entering data into the computer be more important than laying hands on the sick and afflicted? Too early to tell.

The bombshell in the package is the prohibition of pre-dispute arbitration agreements, often found in resident admissions packages. Any facility receiving Medicare and/or Medicaid funds cannot use a mandatory pre-dispute contract.

Providers want the arbitration clauses in order to lessen the damage of malpractice and business litigation and, quite honestly, because they know the arbitration process is loaded in favor of the provider. To be fair, in many states the medical malpractice system is a disastrous mess.

Consumer advocates and the government want to ban the clauses because the process is loaded in favor of the providers and denies due process.

In mid-October, the American Health Care Association sued the federal government for exceeding its regulatory authority in the arbitration matter, so all of this may be in limbo for a while.

What else is in the new regulations

The Affordable Care Act changed the recommended compliance programs into required compliance programs, effective March 23, 2013. The regulations were not published until October 2016, so now a compliance program really is mandatory.

A compliance program has many functions, but the main function is revenue cycle integrity. Since the revenue cycle ties so tightly into resident care and clinical documentation, the compliance program is nothing to take lightly.

For operational purposes, a compliance program has been “mandatory” for a long time as a risk management tool, but now any procrastination is unacceptable. A properly designed and operated compliance program can serve as a performance audit system to improve clinical performance and documentation while also improving the revenue cycle.

The rest of the changes range from simple renumbering of sections to improving the prose to significant regulatory changes. There is a multi-year phase-in with many changes ahead, so be prepared for hard work.

Tom Ealey is a professor of business administration at Alma College in Alma, Michigan. He has extensive long-term care experience, including research interests in healthcare regulatory issues and compliance, healthcare quality failures, and financial fraud. He can be reached at ealey@alma.edu.

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