Long-Term Care News and Updates
Lina Camacho July 21, 2022

Nursing Home Operators Could Face Fines, New CMS Requirements


The Centers for Medicare & Medicaid Services (CMS) has updated guidance tied to arbitration agreements that could result in nursing home providers being cited by surveyors and issued civil monetary penalties as part of a new approach.

This approach is subject to scrutiny and appears to contradict previous federal efforts to make arbitration readily available to all industries, including nursing homes. As a result, attorneys in the health care space expect to see an increase in civil litigation as arbitration contracts become a riskier avenue.

“It continues to be the federal government’s, and Congress’s assertion, that they prefer arbitration. They want to make it available to people to use and they’ve clearly stated that if you make an effort to treat arbitration contracts differently from other contracts – that’s subject to scrutiny,” said Drew Graham, a partner at Hall Booth Smith’s New York City office.


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Rule aimed at reducing red tape to come later, possibly


The Centers for Medicare & Medicaid Services has officially delayed action on a three-year-old proposal to reduce some duplicative and “unnecessary” requirements for nursing homes another year, with no clear indication yet of how regulators will proceed when time runs out.


The 2019 proposal would have eliminated some care and reporting requirements for providers — and deliver an estimated cost savings of $616 million sector wide. But it fell by the wayside with COVID and a change in administration and was never finalized.


Earlier this month, CMS officials filed a notice in the Federal Register that the agency had received a one-year extension of its time to act on the burden-reduction rule. The agency could still ax it entirely.


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CMS still determining what COVID waivers to keep and drop after PHE ends


The Centers for Medicare & Medicaid Services is in the process of deciding what COVID-19 regulatory waivers will remain permanent or be retired following the end of the public health emergency.


The Department of Health and Human Services on Friday extended the public health emergency for another 90 days through Oct. 6, 2022. With the extension, COVID-19 regulatory waivers, such as exceptions to the three-day stay rule and telehealth flexibilities, will be around at least through early October


CMS Administrator Chiquita Brooks-LaSure said during a national stakeholder call Tuesday that “we are very focused on trying to give everyone as much time in terms of making sure people understand our approach. We’ve already started making some of the changes permanent, such as particularly around mental health for Medicare beneficiaries."


She added: "We continue to evaluate which authorities we have flexibility on and ones that will be ready for the next PHE."


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