On July 18, 2019, CMS published a proposed rule titled “Medicare & Medicaid Programs; Requirements for Long-Term Care Facilities: Regulatory Provisions to Promote Efficiency and Transparency” (the Proposed Rule). According to CMS, the proposed changes to the current long-term care requirements and survey process would “simplify and streamline the current requirements” by (i) reducing the frequency with which long-term care facilities are required to conduct a facility assessment; (ii) allowing long-term care facilities the flexibility to streamline their compliance and ethics programs; and (iii) reducing the requirements for individuals responsible for the compliance and ethics program.

Many of the proposed revisions relate to survey, certification and enforcement procedures. Specifically, CMS proposes changing the minimum frequency with which a long-term care facility is required to conduct a facility assessment from an annual assessment to a biennial facility-wide assessment. Further, CMS proposes revising 42 C.F.R. § 488.331 and § 488.431, which relate to the informal dispute resolution processes that allow long-term care providers the opportunity to refute survey findings, to “increase provider transparency by ensuring that administrative actions are processed timely, and that providers understand the outcomes of results.” If the Proposed Rule goes into effect, 42 C.F.R. § 488.431 will also be revised to include a 60-day timeline for the informal dispute resolution process. CMS also looks to revise 42 C.F.R. § 488.436 by eliminating the requirement for long-term care facilities to actively waive their right to a hearing in writing for a 35 percent reduction in potential civil monetary penalties. In its place, CMS looks to implement a “constructive waiver process that would operate by default when CMS has not received a timely request for a hearing.” CMS states that this proposed revision would result in lower costs for most long-term care facilities facing civil money penalties, and “would streamline and reduce the administrative burden for stakeholders.”

CMS expects the Proposed Rule, if finalized, to create $616 million in savings annually for long-term care facilities. Notably, the Proposed Rule is one facet of CMS’s “five-part approach” to reducing regulatory burdens on long-term care facilities. CMS’s fact sheet about the Proposed Rule is available here. Comments on the Proposed Rule are due by September 16, 2019, and may be submitted electronically here.