Key Questions About Nursing Home Regulation and Oversight in the Wake of COVID-19

Appendix 1: Nursing Home Survey and Certification Process

A facility is subject to a standard survey, without advance notice, at least once every 15 months.1 If found to have provided substandard care quality,2 a facility is subject to an extended survey within two weeks of the standard survey.3 In addition, states may conduct special surveys within two months of any change in facility ownership, administration, management, or nursing director to determine whether care quality has declined as a result of the change.4 The Secretary also can conduct special surveys when the Secretary has reason to question facility compliance with federal requirements.5 Standard surveys include a case-mix stratified sample of residents.6 Extended surveys review and identify facility policies and procedures that produced substandard care quality, expand the sample size of resident assessments reviewed, and review staffing, in-service training, and if appropriate, consultant contracts.7

Facility surveys are conducted by a multi-disciplinary team using a protocol developed by the Secretary.8 The survey team must include a registered nurse and may include physicians, physician assistants, nurse practitioners, physical, speech, or occupational therapists, dieticians, sanitarians, engineers, licensed practical nurses, social workers, or other professionals.9 The survey team cannot include anyone who has served as staff or a consultant to the facility in the prior two years or who has a personal or familial financial interest in the facility.10

Survey and certification information, including statements of deficiencies, must be made publicly available by states and the Secretary within 14 days after the facility is notified.11 States submit this information, including any enforcement actions, to the Secretary on the same day that the facility is notified, and the Secretary uses this information to update the federal Nursing Home Compare website at least quarterly.12 The website must include facility staffing data, including resident census data and hours of care provided per resident per day and information on staffing turnover and tenure; links to state survey and certification programs, inspection reports, and facility plans of correction or report responses; information on how to file a complaint with the state survey and certification program and the state long-term-care ombuds program; summary information on the number, type, severity, and outcome of substantiated complaints; the number of adjudicated instances of criminal violations by the facility or its employees committed within the facility regarding abuse, neglect, exploitation, criminal sexual abuse or other violations resulting in serious bodily injury; and CMPs levied against the facility, its employees, contractors, and other agents. States also must notify the state long-term care ombudsman of any findings of noncompliance or adverse actions taken against facilities.

Appendix 2: History of Federal Nursing Home Requirements

After the creation of the Medicare and Medicaid programs, it soon became clear that “[s]trict enforcement of federal standards would have barred most nursing homes from participating in the Medicare program”13 in the mid-1960s, and certification of nursing homes to participate in Medicaid was left to the states.14 After increased congressional and media attention to substandard facility conditions and lax government oversight, revised federal regulations certifying facilities to participate in Medicare and Medicaid were established in 1974. Continued concern about care quality and inadequate enforcement led to new proposed federal regulations issued in 1980 by the Carter Administration. However, the nursing home industry objected to the new regulations’ projected costs, and the regulations were rescinded by the Reagan Administration. In turn, the Reagan Administration’s subsequent proposal, which would have deleted or relaxed many existing standards, was set aside after opposition from consumer advocates, states, Congress, and providers. The impasse led to the appointment of an Institute of Medicine (IOM) committee to recommend changes.

The 1986 IOM committee report contained numerous recommendations to enhance nursing home care quality and resident quality of life by improving nursing home regulation.15 While the IOM committee credited the 1974 regulations with contributing to better care quality, it noted “substantial room for improvement” due to weaknesses in the regulations and uneven administration and enforcement by states.16 At the time of the IOM study, “there [was] broad consensus that government regulation of nursing homes, as it now functions, is not satisfactory because it allows too many substandard nursing homes to continue in operation.” Concerns included “neglect and abuse leading to premature death, permanent injury, increased disability, and unnecessary fear and suffering on the part of residents,” poor quality of life and lack of autonomy, and poor quality medical and nursing care.17 The IOM committee emphasized that government regulation of nursing homes is warranted due to residents’ “large array of physical, functional, and mental disabilities,” limited opportunities for transfer among facilities, and inability to pay for care out-of-pocket.

Although the IOM recommendations led to changes adopted in the 1987 Nursing Home Reform Act, concerns about poor care quality and inadequate enforcement of federal standards continued. Between 1997 and 2010, the Government Accountability Office (GAO) issued more than 20 reports finding substandard care in many nursing homes; understatement of serious deficiencies by state surveyors; unenforced sanctions for harming residents; facilities cycling in and out of compliance; and inconsistent and ineffective federal oversight.18 During the same period, the HHS Office of Inspector General issued reports critical of facility compliance and state and federal enforcement.19 Recurring concerns include staffing levels, abuse and neglect, unmet resident needs, care quality, staff training and competency, and lack of integration between medical care and other services.20

Table 1: Summary of Federal Requirements for Medicare and Medicaid Certified Nursing Homes
Area Description Citation
Requirements related to provision of services
Quality of Life Care for residents in a manner and environment that promotes, maintains, or enhances each resident’s quality of life.

Maintain a quality assessment and assurance committee to identify issues and develop and implement plans of action to correct identified deficiencies.

42 U.S.C. § 1395i-3 (b)(1);

42 U.S.C. § 1396r (b)(1);

42 C.F.R. § 483.24.

Scope of services and activities under care plan Provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written care plan that describes the resident’s medical, nursing, and psychosocial needs and how these needs will be met.

Care plan is initially prepared, with the participation to extent practicable of the resident or resident’s family or legal representative, by a team that includes the resident’s attending physician and a registered professional nurse with responsibility for the resident; and is periodically reviewed and revised.

42 U.S.C. § 1395i-3 (b)(2);

42 U.S.C. § 1396r (b)(2);

42 C.F.R. § 483.21.

Residents’ assessments Conduct a comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity, which describes the resident’s capability to perform daily life functions and significant impairments in functional capacity. Assessment must be based on the uniform minimum data set specified by the Secretary, use an instrument specified by the states, include the identification of medical problems, and be conducted or coordinated by a registered professional nurse.

Assessments must be conducted promptly and no later than 14 days after admission, promptly after any change in the resident’s physical or mental condition, and at least once a year. Examine each resident at least once every 3 months and revise the assessment as appropriate.

42 U.S.C. § 1395i-3 (b)(3);

42 U.S.C. § 1396r (b)(3);

42 C.F.R. § 483.20.

Provision of services and activities To the extent needed to fulfill care plans, provide or arrange for nursing and specialized rehabilitative services and medically related social services to attain or maintain each resident’s highest practicable physical, mental and psychosocial well-being; pharmaceutical services; dietary services that meet each resident’s daily nutritional and special dietary needs; an ongoing activity program to meet each resident’s interests and physical, mental and psychosocial well-being; routine dental services and emergency dental services; and treatment and services required by residents who have mental illness or intellectual disabilities not otherwise provided or arranged for by the state.

Provide 24-hour licensed nursing services sufficient to meet resident needs, including registered professional nurse services at least 8 consecutive hours a day, 7 days a week, except that the Secretary may waive this requirement for certain rural SNFs, and states may waive this requirement for NFs that demonstrate their inability, despite diligent efforts (including offering wage at the community prevailing rate), to recruit appropriate personnel and if the state determines resident health and safety will not be endangered and a registered professional nurse or physician is obligated to respond immediately to phone calls from facility.

42 U.S.C. § 1395i-3 (b)(4);

42 U.S.C. § 1396r (b)(4);

42 C.F.R. § § 483.25, 483.30, 483.35, 483.40, 483.45, 483.50, 483.55, 483.60, 483.65.

Required training of nurse aides After 4 months, full-time nurse aides must have completed a training and competency evaluation program. Provide regular performance reviews and in-service education to assure nurse aide competency to provide services, including services to individuals with cognitive impairments. 42 U.S.C. § 1395i-3 (b)(5);

42 U.S. C. § 1396r (b)(5).

Physician supervision and clinical records Require that every resident’s medical care be provided under physician supervision (or for NFs, supervision of nurse practitioner, clinical nurse specialist, or physician assistant), provide for having a physician available to furnish necessary medical care in case of emergency and maintain clinical records on all residents which include care plans and resident assessments. 42 U.S.C. § 1395i-3 (b)(6);

42 U.S.C. § 1396r (b)(6).

Required social services Facilities with more than 120 beds must have at least one full-time social worker. 42 U.S.C. § 1395i-3 (b)(7);

42 U.S.C. § 1396r (b)(7).

Information on nurse staffing Post daily and make available to the public on request the current number of licensed and unlicensed nursing staff directly responsible for resident care in the facility for each shift. 42 U.S.C. § 1395i-3 (b)(8);

42 U.S.C. § 1396r (b)(8).

Requirements related to residents’ rights
General rights Protect and promote each resident’s rights including the rights to free choice (including choice of personal attending physician, to be fully informed in advance about care and treatment and any changes that may affect resident well-being and to participate in care planning and treatment); freedom from restraints (including physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for discipline or convenience and not required to treat medical symptoms; restraints only may be imposed to ensure physical safety of resident or other residents and only upon written physician order that specifies duration and circumstances used, except in emergency circumstances specified by Secretary until such order could be reasonably obtained); privacy; confidentiality; reasonable accommodation of individual needs and preferences; grievances; participation in resident and family groups and social, religious, and community activities; to examine survey results, and to refuse transfer to another room if the purpose is to relocate from a part of the facility that is a SNF to a part of the facility that is not a SNF.

Provide notice of these rights.

Psychopharmacologic drugs may be administered only on physician orders and only as part of care plan designed to eliminate or modify symptoms for which drugs are prescribed and only if at least annually an independent external consultant reviews the appropriateness of the drug plan of each resident receiving such drugs.

42 U.S.C. § 1395i-3 (c)(1);

42 U.S.C. § 1396r (c)(1);

42 C.F.R. § §483.10, 483.12.

Transfer and discharge rights Cannot transfer or discharge resident unless necessary to meet the resident’s welfare, appropriate because resident’s health has improved, safety or health of other individuals in the facility would endangered, resident has failed to pay for stay, or facility ceases to operate. 42 U.S.C. § 1395i-3 (c)(2);

42 U.S.C. § 1396r (c)(2);

42 C.F.R. § 483.15.

Access and visitation rights Permit immediate access to any resident by any representative of the Secretary or the state, ombuds or resident’s individual physician; permit immediate access subject to resident’s right to deny or withdraw consent at any time to immediate family or other relatives; permit immediate access subject to reasonable restrictions and resident’s right to deny or withdraw consent at any time to others who are visiting with resident’s consent; permit reasonable access by any entity or individual that provides health, social, legal or other services to resident subject to resident’s right to deny or withdraw consent at any time; and permit state ombuds, with resident’s permission to examine resident’s clinical records. 42 U.S.C. § 1395i-3 (c)(3);

42 U.S.C. § 1396r (c)(3).

Equal access to quality care Establish and maintain identical policies and practices regarding transfer, discharge and covered services under Medicare and Medicaid for all individuals regardless of source of payment. 42 U.S.C. § 1395i-3 (c)(4);

42 U.S.C. § 1396r (c)(4)

Admissions policy Not require applicants or residents to waive their rights to Medicare or Medicaid benefits; not require oral or written assurance that such individuals are not eligible for or will not apply for Medicare or Medicaid; prominently display in facility and provide to such individuals written information about how to apply for and use Medicare and Medicaid and how to receive refunds for previous payments covered by such benefits; and not required third party guarantee of payment to facility as condition of admission or expedited admission to or continued stay in facility. 42 U.S.C. § 1395i-3 (c)(5);

42 U.S.C. § 1396r (c)(5).

Protection of resident funds Not require residents to deposit their personal funds with the facility and upon resident’s written authorization must hold, safeguard and account for such personal funds under a system established and maintained by the facility.

Deposit personal funds in excess of $100 ($50 for NFs) in an interest bearing account separate from any of facility’s operating accounts. Any other personal funds must be maintained in a non-interest bearing account or petty cash fund.

Maintain written financial records and pursue a surety bond to secure resident personal funds on deposit.

42 U.S.C. § 1395i-3 (c)(6);

42 U.S.C. § 1396r (c)(6).

Requirements relating to administration and other matters
Administration Be administered in a manner that enables facility to use its resources efficiently and effectively to attain or maintain each resident’s highest practicable physical, mental and psychosocial well-being and must have reports for any surveys, certifications, and complaint investigations during the preceding 3 years available for review. 42 U.S.C. § 1395i-3 (d)(1);

42 U.S.C. § 1396r (d)(1); 42 C.F.R. § 483.70.

Licensing and life and safety code Be licensed under state and local law and meet the life safety code requirements of the National Fire Protection Association Life Safety Code or state law. 42 U.S.C. § 1395i-3 (d)(2);

42 U.S.C. § 1396r (d)(2);

42 C.F.R. § 483.90.

Sanitary and infection control program and physical environment Establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment in which residents reside and to help prevent the development and transmission of disease and infection and be designed, constructed, equipped and maintained in manner to protect health and safety of residents, personnel, and general public 42 U.S.C. § 1395i-3 (d)(3);

42 U.S.C. § 1396r (d)(3);

42 C.F.R. § 483.80.

Miscellaneous Comply with all applicable federal, state and local laws and accepted professional standards. 42 U.S.C. § 1395i-3 (d)(4);

42 U.S.C. § 1396r (d)(4).

Issue Brief

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