October 21, 2020

Volume X, Number 295

October 21, 2020

Subscribe to Latest Legal News and Analysis

October 20, 2020

Subscribe to Latest Legal News and Analysis

October 19, 2020

Subscribe to Latest Legal News and Analysis

Comprehensive Proposed New Rules Announced for Long-Term Care Facilities

"Far reaching," "massive in scope," and "sweeping," are just a few of the terms that have been used to describe a 403-page proposed rule for Medicare and Medicaid nursing homes, which was released Monday (July 12) by the U.S. Department of Health and Human Services (DHHS). 

DHHS describes the proposed rule as the first "comprehensive" review and update of Medicare/Medicaid requirements for long-term care (LTC) facilities since the rules were first published in 1989.

Some of the proposed requirements are consistent with changes that many organizations have already developed on their own. Other requirements may, however, surprise and concern some. In the days to come, as health care providers and organizations and their attorneys pore through the 400+ pages, additional surprises are likely to emerge. For now, here is a sampling of the proposed new requirements.

  • Attending physicians for LTC residents would be required to meet professional credentialing standards to be established by LTC facilities.
  • Each resident would be allowed to share a room with his or her roommate of choice "when practicable," which the DHHS comments indicate could include a same-sex couple.
  • Admission could not be contingent on a resident’s or resident representative’s signing a binding arbitration agreement, and any binding arbitration agreements would be subject to specified standards.
  • LTC facilities would be prohibited from allowing a "resident representative" to make decisions on behalf of the resident that go beyond what a court requires or the resident delegates, and would be required to report per state law any decisions of the representative that are "not in the best interests" of the resident.
  • Before an "unscheduled transfer" of a resident to a hospital, the LTC facility would be required to provide or arrange for "an in-person evaluation of a resident, to be conducted expeditiously, by a physician, a physician assistant, nurse practitioner, or clinical nurse specialist ..., unless the transfer is emergent and obtaining the in-person evaluation would endanger the health or safety of the individual or unreasonably delay the transfer."

The last of the proposals outlined above is one aspect of what DHHS describes as the proposed rule’s "multifaceted approach to reducing unnecessary hospitalization" of LTC residents. 
DHSS estimates the first year total cost for the proposed requirements would be $729,495,614, with the total cost for the second and future years to be $638,386,760 annually.

When the proposed rule is officially published on Thursday, July 16, 2015, it is expected to provide until at least September 14, 2015 for comments. Given the importance of the proposed rules, we highly recommend a careful review of their potential impact on your organization, and also suggest addressing any concerns in official comments.

© Copyright 2020 Armstrong Teasdale LLP. All rights reserved National Law Review, Volume V, Number 197


About this Author

Diane E. Felix, health care attorney, Armstrong Teasdale, law firm

Diane Felix has focused her practice on representation of health care providers, with a significant portion of that practice involving long-term care facilities. Her representation of providers has included Medicaid and Medicare reimbursement matters, licensure and certification issues, Certificate of Need matters, preparation and negotiation of contracts, (including admission agreements, professional services agreements, leases and purchase agreements) and operational questions (involving issues such as consent to treatment, confidentiality of records and ADA compliance).

Jonathan F. Dalton, Partner, Corporate, Health Care, Armstrong Teasdale Law Firm

Jon Dalton counsels many of Missouri’s most successful organizations and individuals in business transactions and government/regulatory affairs.

Jon concentrates his business law practice on health care transactional, regulatory and litigation matters. He has extensive experience across the entire spectrum of legal issues facing health care providers today. Jon’s work includes the representation of major health systems, multi- and single-specialty medical practices, specialty hospitals, ambulatory surgery centers, pharmacies and pharmaceutical manufacturers, and a wide variety of health care and allied industry entrepreneurs in varied and diverse structural and compliance issues. In this capacity, Jon regularly negotiates, drafts and advises clients with regard to complex and day-to-day legal matters involving general business and operational issues, anti-kickback and Stark law compliance, certificate of need and licensure matters.

Steve E. Pozaric, Partner, Corporate, Health Care, Armstrong Teasdale Law Firm

Steve Pozaric serves businesses of all sizes in the areas of corporate, mergers and acquisitions, health care, technology, and securities law. Prior experience in corporate finance for companies ranging in size from Fortune 500 to venture capital backed start-ups gives him added perspective in business operations, practices, dynamics, and behaviors.