Post-Acute Care & Nursing Facilities

Many long-term care residents live in Missouri nursing homes for years. But occasionally circumstances may change such that it is no longer appropriate for the resident to continue to reside at the facility. In certain cases, nursing homes may discharge or transfer a resident even if the resident does not consent to the discharge or transfer – this is known as an “involuntary discharge” or an “involuntary transfer.” In this case, the resident has the right to appeal the involuntary discharge or transfer.

nursing facilities

The Affordable Care Act mandated that the Centers for Medicare and Medicaid Services (“CMS”) establish risk categories for Medicare enrollment, which are used by CMS to determine what level of scrutiny to give provider enrollment applications, which includes initial enrollment, change of ownership (“CHOW”) applications, and revalidations.  Three risk categories were subsequently created under 42 CFR § 424.518: limited, moderate, and high. Providers in the limited risk category are subject to the lowest scrutiny and those in the high risk category are subject to the most scrutiny.

Healthcare Providers

Workplace violence has become a hot topic in today’s discourse; however, workplace violence is not just headline fodder for media outlets. The trend is well-documented and especially felt by the healthcare industry which continues to experience the brunt after the onslaught of COVID-19. In 2018, 73% of all nonfatal workplace violence incidents involved healthcare workers. A late 2020 survey reported that 20% of nurses reported they were facing an increase in workplace violence after the COVID-19 pandemic began. Another study reported a 14.6% increase in workplace violence at New Jersey hospitals over the prior three years.

Skilled Nursing

Background  

In direct response to the significant challenges experienced by long term care (LTC) facilities throughout the COVID-19 pandemic, the Biden-Harris Administration announced its commitment to improving safety and quality of care. During the March 1, 2022 State of the Union address, President Biden reaffirmed the Biden-Harris Administration’s commitment to protecting residents and staff of nursing homes. The Biden-Harris Administration has since taken steps to establish new minimum staffing ratios within nursing or skilled nursing facilities (SNFs), increase scrutiny of poorly performing nursing homes, and improve quality care transparency for customers seeking a SNF.

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Colorado’s Equal Pay for Equal Work Act (EPEWA) goes into effect January 1, 2021, and the Division of Labor Standards and Statistics within the Colorado Department of Labor and Employment adopted final regulations on November 10, 2020, regarding equal pay transparency. Since our last update, on December 18, 2020, the Division issued its Interpretive Notice and Formal Opinion #9 (INFO #9) in yet another effort to provide clarity around the job posting and pay transparency provisions of EPEWA. These provisions have generated the most questions from human resource and internal legal teams. Below we have revised and updated our earlier FAQs to provide the most up-to-date guidance in a single resource.

HHS Fund

On September 19, 2020, the U.S. Department of Health and Human Services (HHS) released long-awaited details about upcoming reporting requirements for certain providers that accepted funding of one or more payments exceeding $10,000 from the Provider Relief Fund (PRF). Key aspects of HHS’ new PRF reporting guidance are summarized in today’s legal alert.

Nursing Facilities

The Department of Health and Human Services (“HHS”) announced on August 7th details of the next CARES Act-authorized nursing home Provider Relief Fund (“PRF”) distribution. The PRF distribution will total $5 billion, and will be used to protect residents of nursing homes and long-term care facilities from the impact of COVID-19.

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The Texas Health and Human Services Commission (“HHSC”) announced on August 6th that limited visitation would be allowed at certain nursing homes and long-term care facilities throughout the state. Nursing homes and long-term care facilities must submit a form to their LTCR Regional Director to be permitted to allow limited visitation. Permitted nursing facilities may allow outdoor visits, window visits, vehicle parades, and compassionate care visits. Permitted long-term care facilities may also allow plexiglass indoor visits, provided that their visitation booth is approved by HHSC. Conditions for approval are listed in the HHSC LTCR Provider Letter.

For long-term care (“LTC”) facilities such as assisted living facilities and nursing homes, the high risk of spread once coronavirus disease 2019 (“COVID-19”) enters a facility  means such facilities must take immediate action to protect residents, families, and healthcare personnel from severe infections, hospitalizations, and death.  One such action that many States are taking is mandatory testing for the residents and employees of LTC facilities.  Specifically, several states, including West Virginia, South Carolina and Florida, are now requiring mandatory testing of residents and employees of skilled nursing and assisted living facilities.  Other states have similar proposed legislation in the works, including Pennsylvania, and it is likely that the number of states implementing such measures will continue to grow in the coming weeks and months. The White House has also indicated that the federal government may mandate testing nationwide for all nursing home residents and employees. While widespread testing of residents is an appropriate measure to protect the populations most vulnerable to the disease, mandatory testing raises the issue of whether and how to obtain informed consent from residents, many of whom use a medical powers of attorney (“MPOA”) for decisions regarding their care.

Economic Hardship Covid19

On May 12, 2020 the Centers for Medicare & Medicaid Services (CMS) issued additional 1135 blanket waivers which are applicable to a wide variety of healthcare providers. These COVID-19 Emergency Declaration Blanket Waivers for Healthcare Providers are retroactively effective from March 1, 2020 through the end of the public health emergency (PHE). The waivers in this issuance do not require a request be sent or a notification be made to any of the CMS regional offices.  Each waiver must be consistent with the state’s emergency preparedness or pandemic plan.