Hospital Association of Pennsylvania > Advocacy > Federal Advocacy > HAP Comment Letter to CMS on Fed Program Standards for LTC Facilities Proposed Rule


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HAP Comment Letter to CMS on Federal Program Standards for Long-Term Care Facilities Proposed Rule

October 14, 2015

Andrew Slavitt, Acting Administrator
Centers for Medicare & Medicaid Services
U.S. Department of Health and Human Services
P.O. Box 8010
Baltimore, MD 21244

RE: File code CMS–3260–P. Proposed Rulemaking: Medicare and Medicaid Programs Reform of Requirements for Long-Term Care Facilities

Dear Acting Administrator Slavitt:

On behalf of The Hospital & Healthsystem Association of Pennsylvania (HAP), which represents approximately 240 member institutions, we appreciate the opportunity to comment about File code CMS-3260-P, the Centers for Medicare & Medicaid Services’ (CMS) proposed rule to revise the quality and safety standards that long-term care facilities must meet to participate in the Medicare and Medicaid programs.

HAP’s member hospitals and health systems provide services across the continuum of care. In addition to acute care facilities, HAP members include rehabilitation hospitals, behavioral health and long-term care providers, hospice providers, and trauma facilities.

CMS indicates that the proposed changes to the quality and safety standards for long-term care facilities will help to reduce unnecessary hospital readmissions and infections; strengthen patient safety; and increase the quality of care provided in long-term care facilities. HAP wishes to offer the following comments to this proposed rulemaking:

Resident Rights and Facility Responsibilities—Care Planning

Under the proposed rule, the resident would have the right to participate in the establishment and implementation of a patient-centered plan of care. This would include the right to help establish goals and outcomes and to identify individuals to be included in the planning process.

HAP supports patient-centered care planning. HAP agrees that a resident should have input into the goals and outcomes of care planning. However, HAP recognizes that a resident might not always understand the scope of care they need or why they need to meet certain goals to maintain independence and good health. HAP recommends that CMS provide more clarity with regard to its intent as to the level of participation for residents and how a facility can demonstrate its compliance with this provision.

Transitions of Care—Transfers and Discharges

Under this provision of the rule, CMS would require facilities to establish admissions policies as well as require facilities to ensure that transfers and discharges are documented in the resident’s clinical record. Additionally, CMS will require that appropriate information is communicated to the receiving health care institution or provider when a patient is transferred.

This provision builds on policies and standards that already are being implemented by acute care providers in Pennsylvania. Hospitals throughout the commonwealth have been employing patient-centered discharge programs in an effort to reduce preventable harm and all-cause hospital readmissions. HAP believes that extending this concept through the full continuum of care will result in better care coordination for all patients.

Physician Services

Under the proposed rule, a physician, a physician assistant, a nurse practitioner, or a clinical nurse specialist would be allowed to provide orders for the resident’s immediate care and needs after admission, until a comprehensive assessment and care plan is completed.

The proposed rule also would allow a physician to:

  • Delegate to a qualified dietitian or other clinically qualified nutrition professional the task of writing dietary orders as permitted by state law
  • Delegate to a qualified therapist, the task of writing therapy orders as permitted by state law

HAP supports the utilization of all health care practitioners to the fullest extent of their education and training. Allowing each of these practitioners to provide orders for the resident’s immediate care and needs after admission will expedite the provision of necessary care and services needed. Additionally, allowing a physician to delegate the task of writing therapy orders would accelerate the process of accessing therapy care for residents requiring such care.

Health care professionals should be empowered to work together more closely as a team across the entire continuum of care and this provision of the rule will help to support that.

Nursing Services

The proposed rule outlines that facilities must have sufficient nursing staff with the appropriate competencies and skill sets to provide nursing and related services to assure resident safety and attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident. Questions were raised regarding the establishment of minimum nurse hours per resident day as well as minimum nurse-to-resident ratios.

Nurse staffing is a complex issue that cannot be solved by assigning minimum nurse hours per resident stay or minimum nurse-to-resident ratios. Resident populations can vary tremendously from one facility to the next. Additionally, nurse staffing levels are influenced by a number of factors, including the resident’s acuity level. There is no conclusive evidence that suggests that ratios improve patient care. Assigning staffing ratios focuses attention on meeting certain numbers and not necessarily on patient needs.

HAP believes that staffing decisions should be based on resident assessments and individual plans of care as well as the number, acuity, and diagnoses of the facility’s resident population. HAP agrees that long-term care facilities should be provided with the flexibility to adjust staffing plans to meet the care needs of the population they serve.

Behavioral Health Services

CMS proposed to add a new section to the rule that focuses on behavioral health care. Under the proposed rule, the facility must provide each resident the necessary behavioral health care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.

Facilities would be required to have sufficient direct care/direct access staff who are competent to care for residents with mental illness, psychosocial disorders, or a history of trauma and/or post-traumatic stress disorder, and staff who can implement non-pharmacological interventions.

HAP supports this concept. Our acute care providers are working to fully integrate behavioral and physical health care and we believe a key element of this initiative is linking in long-term care and supportive services. However, facilities and communities might not currently have the capacity to provide the behavioral health services outlined in the proposed rule. 

HAP cautions CMS that it needs to consider the existing shortages in behavioral health care services. For example, there currently is a shortage of psychiatrists in Pennsylvania. The identification and recruitment of such physicians is particularly difficult in rural areas. HAP recommends that CMS seek more stakeholder input regarding the access and allocation of qualified staff before implementing this new requirement in the proposed rule.

Pharmacy Services

Currently each resident’s drug regimen must be reviewed by a pharmacist at least once a month. It is CMS’ belief that the pharmacist should review the resident’s medical record concurrently with the drug regimen review. Under the proposed rule, CMS proposes that a pharmacist be required to review the resident’s medical chart along with the drug regimen review at least every six months and when:

  • The resident is new to the facility
  • The resident returns or is transferred from a hospital or other facility
  • During each monthly drug regiment review when the resident has been prescribed or is taking a psychotropic drug, an antibiotic, or any drug the quality assessment and assurance committee has requested be included in the pharmacist’s monthly drug review

Additionally, CMS proposes to expand the current safeguards for the use of antipsychotic medications to include all psychotropic medications, which it defines as any drug that affects brain activities associated with mental processes and behavior. CMS would prohibit facilities from providing these drugs based on a PRN order, unless that medication is necessary to treat a diagnostic specific condition that is documented in the clinical record. PRN orders for a psychotropic drug would be limited to 48 hours, unless the resident’s physician or primary care provider documents justification for continuation.

HAP generally agrees with the review of a resident’s drug regiment; however, HAP believes that more clarification is necessary regarding CMS’ expectations for this provision. Is it CMS’ expectation that a detailed medical record review be completed upon admission or that the pharmacist should only verify all medications on each new admission?

HAP believes that an exception to the requirement that a review be completed when the resident returns or is transferred from a hospital or other facility should be made for residents who return from a hospital or other facility when they have a diagnostic procedure or other similar non-invasive service performed.

Additionally, HAP believes that more clarification is necessary regarding the PRN orders for psychotropic drugs and other medications. Is it CMS’ intent to review or restrict the use of psychotropic drugs? HAP would welcome more discussion and guidance regarding this provision within the proposed rule.

Quality Assurance and Performance Improvement

The Affordable Care Act mandates that the U.S. Department of Human Services Secretary establish quality assurance and performance improvement requirements for skilled nursing facilities and nursing facilities. CMS proposes that each long-term care facility must develop, implement, and maintain an effective, ongoing, comprehensive, data-driven and well-documented program.

As part of this requirement, CMS proposes that a facility must conduct distinct performance improvement projects that reflect the scope and complexity of the facility’s services and available resources. At least annually, a facility must undertake a project that focuses on high-volume, high-risk, or problem-prone areas identified through data collection and analysis.

Implementing quality assurance and performance improvement programs that reflect the full range of care and services provided by long-term care facilities will provide for the collection of data to identify areas of improvement. With that in mind, HAP recommends that CMS consider determining the required scope of quality assurance and performance improvement programs based in part on the rating each particular long-term care facility earned through the 5-star rating system.

Infection Control

The proposed rule updates the infection control requirements for long-term care facilities and emphasizes infection prevention as well as control. Facilities must establish and annually update their infection prevention and control programs. Additionally, each facility must designate one individual as the infection prevention and control officer for whom the program is a major responsibility. The infection prevention and control officer must be a clinician who works at least part-time at the facility, and have specialized training in infection prevention and control beyond his or her initial professional degree.

A number of skilled nursing facilities in Pennsylvania are hospital-based and, to a substantial degree, already meet the infection control/prevention requirements. Requiring facilities to have an infection prevention and control officer work at their facilities at least part-time may be problematic for some hospital-based facilities, as they share resources with the hospitals they are affiliated with, including the utilization of highly-skilled, certified infection control practitioners. Services are allocated to the hospital-based facility; however,the infection control practitioners are not paid staff of the skilled nursing facility.

Requiring hospital-based skilled nursing facilities to hire part-time staff to deliver services and oversight already provided through established practices with the hospital with which the facility is affiliated would be an undue financial burden. CMS should consider the unique circumstances of hospital-based facilities when determining staffing requirements.

Timeline for Implementation

HAP believes that the best course of action for implementation is to use a tiered approach and phase in the requirements over yearly intervals, with the most critical concerns being addressed first. In this way, issues following implementation can be resolved before introducing the next set of requirements. These new requirements will require significant new investments, and we request both regulatory relief and the allocation of resources to assist.

HAP appreciates the opportunity to submit these comments about CMS’ proposed rulemaking. If you have any questions regarding HAP’s comments, please feel free to contact me at (717) 561-5525; or Mary Marshall, HAP’s director, workforce and professional services, at (717) 561-5312.


Jeffrey W. Bechtel, JD
Senior Vice President, Health Economics and Policy

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