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Oftentimes, news reports about nursing homes highlight tragic incidents or perceived failures of a specific facility or the industry in general to care for vulnerable, older adults.

Our firm works with many clients who are receiving excellent care in nursing homes from dedicated staff members who serve from their hearts and not just for a paycheck. The sensitive nature of this type of work, however, does require well defined standards and consequences for those facilities that consistently have difficulty meeting those standards.

Historically, the federal regulation of nursing homes began in the 1960s with the establishment of Medicare.

Written standards were needed in order for nursing homes to qualify to participate in Medicare and Medicaid programs. The government had to begin from scratch because there were no public or private agencies or organizations that had previously developed and enforced guidelines for long-term care facilities.

Initial regulations were adapted from hospital regulations and focused on physical safety and the adequacy of care for residents. Physical safety (fire safety, cleanliness, freedom from abuse) could be clearly defined with measurable standards. The adequacy of care was more ambiguous, however. Positive health outcomes could not be the standard since aging cannot be reversed and not all diseases cured. Instead, it was assumed that if specific policies and procedures for care were present and certain staff qualifications were met, then “quality” care would follow.

Major attempts to improve upon these initial regulations did not occur until the 1980s. At first, the federal government had difficulty developing a set of proposed regulations that met the various demands of consumers, the long-term care industry and individual states; so the focus of improvement efforts changed to the survey process for ensuring compliance with existing regulations.

In addition to reviewing facility policies and procedures, observing and interviewing nursing home residents became a formal part of the survey process, which allowed for a more comprehensive evaluation of the care that was actually being provided. The establishment of a more formal process for all surveyors to follow also led to greater uniformity of survey results.

A second step toward improvement efforts was the completion of a study by the Institute of Medicine in 1986. This study was funded by the Health Care Financing Administration, and was valuable because it allowed health care experts who were not directly involved in government or the industry to have a say in how nursing homes should be regulated. The recommendations that resulted from this study would become the basis for new nursing home legislation as part of the 1987 Omnibus Budget Reconciliation Act.

In September 2016, the Centers for Medicare & Medicaid Services issued another comprehensive update to federal nursing home regulations. Some of the previous regulations were modified and some had new requirements added.

These changes will be effective in three stages. The first stage went into effect last November, the next stage will be in effect this November, and the last stage will go into effect in November 2018.

In looking at a broad overview of changes implemented last November, new regulations support increased resident control, choice and preferences; expanded training requirements for staff, contract employees and volunteers; and additional protections related to abuse, neglect and exploitation. Improvements to admission, transfer and discharge processes also are required.

Changes to residents’ rights include new requirements that increase resident participation and decision-making in the care planning process and their treatment, as well as provisions related to the handling of grievance procedures, visitation and roommate choices.

Modifications and additions have been made related to specific aspects of physical care for residents, including a new section concerning the use of bedrails. Alternatives for resident safety must be tried instead of bedrails, and bedrails can be used only with informed consent from the resident or a resident’s representative. Food and nutrition services updates include menus that reflect the religious, cultural and ethnic needs and preferences of residents and options for residents who wish meals or snacks at non-traditional times.

A key change in the new regulations is the prohibition of contract language within skilled nursing facility admission agreements that requires the use of binding arbitration to resolve disputes. This means that the resident is waiving the right to a trial with a judge and jury if a problem occurs, and instead, a neutral party will determine the outcome of the situation. This new regulation has been challenged in court, so its implementation has been delayed.

Absent from the new regulations are standards requiring minimum staffing levels for facilities and the presence of a registered nurse on duty 24 hours a day. The competency of staff members as well as the number, acuity and diagnoses of residents are to be considered in determining appropriate staffing levels for individual facilities.

The regulation of medication use in nursing facilities will be addressed in next week’s article.

For a more detailed summary of the additions and modifications to current nursing facility regulations, visit The National Consumer Voice for Quality Long-Term Care at www.theconsumervoice.org. This organization provides information for consumers of long-term care services, their families and advocates for quality care.

Learn more about the article’s author, and other community education opportunities, at www.keystoneelderlaw.com. Check out the book, “Long Term Care Guide: Essential Tools for Solving the Elder Care Puzzle,” at the Whistlestop Bookshop or Amazon, and see Keystone’s free directory of services for older adults at www.mypeaceguide.com. Keystone Elder Law has offices in Mechanicsburg and Carlisle. Call 717-697-3223 for a free telephone consultation.

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