This is the second in our series of law notes on the final rule titled "Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities." (Click here for first note in the series) As if the comprehensive final rule is not painful enough, the rule also spells out that the average cost per facility to implement the new regulations is estimated to be $62,900 in the first year and $55,000 per year for subsequent years.
This Law Note focuses on new provisions related to staff training, facility assessment, and infection control.
1. Training Requirements (new 42 C.F.R. §483.95)
The final rule contains a new section, 42 C.F.R. § 483.95, that sets forth the requirements of an effective training program for all new and existing staff, contract staff, and volunteers in Skilled Nursing Facilities ("SNFs"). Although most of the new training requirements will be implemented in later phases, several must be implemented by November 28, 2016, as part of Phase I. We recommend that you review your existing training policies and topics to make sure they cover the following:
- Abuse, neglect, and exploitation training must include, at a minimum: activities that constitute abuse, neglect, and exploitation; procedures for reporting abuse, neglect, and exploitation; and dementia management as it relates to resident abuse prevention.
- Nurse aides must receive in-service training for 12 or more hours per year, and the training must include dementia management training, resident abuse prevention training, and, for nurse aides providing services to individuals with cognitive impairments, the care of individuals with cognitive impairments.
- Feeding assistants may not work as feeding assistants until after successfully completing a State-approved training program.
The remainder of the training requirements must be implemented by November 28, 2019 as part of Phase 3. In the intervening time, careful planning will be needed to develop or enhance training on topics including:
- Effective communications
- Resident rights and facility responsibilities
- Quality assurance and performance improvement
- Infection control
- Compliance and ethics
- Behavioral health
2. Facility Assessment (new 42 C.F.R. §483.70)
The careful planning for training will be guided by the new comprehensive facility-wide assessment to be implemented by November 28, 2017 as part of Phase 2. The new assessment protocol is in the administration regulation, 42 C.F.R. § 483.70, and requires a well-documented assessment of the entire facility to determine the resources necessary to care for residents competently during daily operations and emergencies, including staff training. The assessment must be reviewed and updated at least annually and whenever there is a change that would require a substantial modification to the assessment. The assessment must address:
- The facility's resident population:
- number and capacity;
- the care required by the patient population considering their diseases, conditions, physical and cognitive disabilities, acuity, and other pertinent facts;
- staff competencies needed to provide the required care;
- the physical environment, equipment, services, and other physical plant considerations necessary to care for the population; and
- ethnic, cultural, or religious factors that could affect the care, including activities and food services.
- The facility's resources, including buildings, equipment, personnel, services such as PT and pharmacy, agreements with third parties, and health information technology.
- A facility-based and community-based risk assessment utilizing an all hazards approach.
3. Infection Control (new 42 C.F.R. § 483.80)
Section 483.80 is also new and requires facilities to have an infection prevention and control program ("IPCP") with the elements in the new rule (implemented by November 28, 2016 as part of Phase 1). The IPCP will need to include an antibiotic stewardship program (by Phase 2) and designate at least one infection preventionist (by Phase 3). The IPCP must include a system for preventing, identifying, reporting, investigating, and controlling infections and communicable diseases for all residents, staff, volunteers, visitors, and other individuals providing contract services. By Phase 2, the IPCP must be based on the facility's comprehensive assessment and follow accepted national standards. Policies and procedures to be implemented as part of the IPCP must include:
- A system of surveillance designed to identify possible communicable diseases before they can spread
- When and to whom reports must be made
- Standard and transmission-based precautions
- When and how isolation should be used
- The circumstances under which the facility must prohibit employees from direct contact with residents or their food
- Hand hygiene procedures to be followed by staff involved in direct resident contact
The antibiotic stewardship program must include antibiotic use protocols and a system to monitor antibiotic use as well as a system for recording incidents and corrective action. The infection preventionist must have primary professional training in nursing, medical technology, microbiology, epidemiology, or other related fields and be qualified by education, training, experience, or certification; work at least part-time in the facility; and have completed specialized training in infection prevention and control. This infection preventionist must be part of the facility's quality assurance committee. The IPCP section of the rule also requires that the facility develop policies and procedures to ensure that each resident is educated on the benefits and side effects of immunization for influenza and pneumococcal disease. The IPCP must be reviewed annually and updated as necessary.
The revisions and additions we have suggested above are highlights and are not meant to be an exhaustive listing. We will have a further installment in this multi-part series highlighting additional changes that take effect in Phase 1 and beyond.