Nursing home regulations can seem overwhelming, especially with the current staffing crisis and challenges of delivering care. Nonetheless, they must be observed. After all, the standard of quality in any facility is only as high as its weakest link. In this article, we present strategies that will help facilities stay on top of federal and state regulatory standards for nursing homes.
In order to meet challenges, health care delivery professionals have a duty to:
- Provide competent and compassionate care with dignity.
- Assist residents in preparing for any changes that may come with aging.
- Respect resident’s rights as individuals by protecting their privacy, freedom of choice, and preventing abuse or neglect.
We will also share expert advice from David Hoffman, President and Founder of David Hoffman & Associates, who investigated hundreds of facilities. He presented his positive and negative observations of facilities during his recent appearance on the LTC Heroes podcast:
Challenges to Health Care Delivery:
Challenges to health care delivery must be resolved before a true standard of care can be established. Healthcare professionals must assist residents in preparing for changes that may come with aging or illness and respect resident’s rights as individuals by protecting their privacy, freedom of choice, and preventing abuse or neglect.
You can deal with those challenges by following the regulatory standards for nursing homes, which include:
- Providing an atmosphere of warmth and dignity.
- Making sure that the resident’s health is monitored appropriately.
- Providing appropriate personal care and assistance.
- Maintaining a clean environment.
- Evaluating the resident’s need for social, emotional, or spiritual support to help them live as independently as possible.
- Avoidable errors
- Underutilization of services
- Overuse of services
- Errors associated with variations in health care practices, often regional and small-area variations.
The first category is related to injuries that were not treated properly during the patient’s or resident’s stay. This could be due to a wrong diagnosis or a mistake in treatment. The second and third categories are the two sides of the same coin: either the facility is not using all of its resources to treat the resident or it is over-providing services that might actually have more downside for the resident’s health. The last category is related to small variations in practice; even with regulatory standards in place, some facilities will diverge and do things their way, producing different outcomes.
State and Federal Regulations in Long Term Care
Federal and state regulations establish minimum quality standards and ensure that sufficient services are being provided by nursing homes. As it turns out, the nursing home industry is one of the most heavily regulated in the country. “Maybe the Nuclear Regulatory world is more regulated, but not by much,” said Hoffman.
State regulatory boards may not be as strict as federal regulations, but they do have the authority to inspect and penalize facilities. They often review reports from residents on a quarterly basis that evaluate staff performance, challenges to health care delivery, and other issues of concern. On the other hand, federal regulation is more rigorous than state regulation and has a reporting system in place that tracks compliance with quality standards set by Congress for nursing homes nationwide.
In order for both regulatory boards to have the necessary oversight, they should work together and share information. State regulatory boards should have the authority to investigate challenges within their state, but federal regulations will be considered as well.
Here are some tips on how to remain in compliance with federal and state regulations in long term care:
- Make sure the nursing home has a written statement of philosophy that articulates how residents’ dignity and individuality are respected. The Nursing Home Reform Act includes requirements for the physical environment, staffing levels, medical and safety services.
- Ensure there is a management plan that addresses challenges to health care delivery, including clinical capacity issues such as not having enough nurses on staff or lacking enough registered nurses to meet residents’ needs in an emergency. This can be accomplished by training current staff members so that they are prepared when these challenges arise.
- Develop policies that ensure appropriate disclosure about your facility to potential residents before they are admitted, such as details about quality rankings or any adverse event reports in the past three years.
- Establish a staffing plan that addresses challenges to health care delivery.
- Make sure there are policies and procedures in place to address challenges to health care delivery, including clinical capacity issues. Refer to the Nursing Home Reform Act for more.
- Implement EHR that can help your staff be more efficient and productive when challenges to health care delivery arise.
For more resources on the basics of nursing home laws and regulations, click here.
The Establishment of Federal Nursing Home Requirements
According to Improving the Quality of Care in Nursing Homes, the federal government’s involvement in the functions of nursing homes began following the passage of the Social Security Act of 1935. The document established a federal-state public assistance program for the elderly. However, it also prohibited the use of poorhouses to care for the elderly, which contributed to the growth of voluntary and proprietary nursing homes. About 20 years later, almost 10,000 nursing homes were built, and 86% were proprietary, 10% voluntary, and 4% public.
It was only in 1950, after some amendments to the Social Security Act, that authorized payments to beneficiaries in public institutions accelerated the federal government’s involvement. These amendments allowed for direct payments to health care providers and helped establish programs for licensing nursing homes.
Eventually, federal and state authorities began noticing that only a small percentage of nursing homes actually provided quality care and even fewer had the resources, like sufficient staff, to address regulation provisioning. This meant that the majority of nursing home providers were not meeting standards and that challenges to health care delivery would continue.
These shortcomings led to the federal government increasing its intervention to ensure that the elderly population would have their care needs met in the form of the 1987 Nursing Home Reform Act, which established the following basic rights for residents:
- The right to freedom from abuse, mistreatment, and neglect
- The right to freedom from physical restraints
- The right to privacy
- The right to accommodation of medical, physical, psychological, and social needs
- The right to participate in resident and family groups
- The right to be treated with dignity
- The right to exercise self-determination
- The right to communicate freely
- The right to participate in the review of one’s care plan, and to be fully informed in advance about any changes in care, treatment, or change of status in the facility
- The right to voice grievances without discrimination or reprisal
With the advent of Medicare and Medicaid, most of the responsibility for financing and delivering health care was shifted from the states to the federal government. This led to challenges with regulating nursing homes, as they were now funded federally but administered by the states.
In short, prior to government intervention, the quality of care in nursing homes was poor. It was only through regulatory measures that significant progress was made. But despite these great efforts at the federal and state level, many facilities still do not meet the minimum requirements.
Who Regulates Nursing Homes?
Nursing homes are regulated by a number of state and federal agencies. The U.S. Department of Health and Human Services is responsible for administering programs, including Medicare and Medicaid; the Centers for Disease Control (CDC) assists with tracking disease outbreaks among residents living in nursing homes; and both the U.S. Food and Drug Administration (FDA) and the Centers for Medicare Services (CMS) help ensure quality of care.
State governments, meanwhile, oversee nursing homes through a number of regulatory agencies, such as the Department of Health or Office of Regulatory Affairs. Each state has its own set of regulations that govern how long-term facilities are required to keep residents in their facility for observation and testing.
Nursing homes are also required to have a state-registered nurse on staff 24 hours a day, seven days per week. In addition, each facility must maintain an emergency call system with contact numbers for the police department or fire station nearest to them at all times. This is in case of an emergency situation in which someone needs to be contacted immediately.
In addition, the Centers for Medicare Services (CMS) provide for consumers a tool with information about nursing homes, including an A-F letter grade. These grades detail how well facilities are meeting regulatory standards in key areas, like quality of care and health inspections, while also providing valuable consumer feedback on what residents or their families perceive as important issues at that particular facility.
The information about the A-F letter grade is public and can be found on the compare tool of the official Medicare site.
How are the federal requirements for nursing home oversight enforced?
Setting regulations is not enough to ensure they are followed by facilities. That is why the government created ways to check if nursing homes are in compliance. In the United States, the government conducts regular inspections or surveys. These surveys are unannounced and happen at irregular intervals once every 15 months.
In addition to surveys, the state may do the following to ensure the compliance of long term care facilities with regulations:
- Investigate complaints of facility violations of federal requirements
- Investigate allegations such as:
- Misappropriation of resident property by nurse aides or other facility service providers
- Conduct periodic educational programs for facility staff and residents about current regulations, policies, and procedures.
If, during those inspections or investigations, it is found that a facility was not in compliance with federal regulations, penalties are applied in accordance with the level of harm caused by the action or neglect. These penalties can vary from a simple civil financial penalty to closing the facility.
Obstacles to Observing Regulatory Standards
The Centers for Medicare and Medicaid Services (CMS) have three key areas of oversight: quality standards, health care delivery systems, and long-term services. CMS is responsible for enforcing the federal regulations outlined in the Nursing Home Reform Act of 1987. Of course, state governments will also regulate nursing homes if they have more stringent requirements than the federal government.
New reports of facilities that fail to meet quality standards on account of abuse or neglect emerge every day. This issue has led many people to question the competence of these facilities, as it seems that these homes are not being monitored or held accountable. A negative reputation will significantly impact occupancy.
While most nursing homes do not have problems meeting federal and state regulations, many facilities will find it difficult to meet these standards due to understaffing or a lower quality of care. Keep these tips in mind when trying to stay in compliance with regulations:
- Research the regulations for your state.
- Find out which domains you need to meet or exceed in order to be eligible for Medicare and Medicaid reimbursement.
- Consider closing down all services until you are able to comply with these standards again.
- Find a good EHR to help manage your facility and resident documentation so that your staff can focus on providing the best possible care.
- Utilize online resources, like the CMS’ Nursing Home Compare database, which provides information about how other facilities are meeting health care standards.
The Need for Higher Minimum Staffing Standards in US Nursing Homes
The challenges and struggles referenced above all point to one central issue: a lack of sufficient or qualified staff to meet the needs of residents. In addition to the daily tasks of monitoring and assisting residents, nurses must care for those with mental or cognitive disabilities, who actually make up about 80% of all nursing home residents. For this reason, the CMS and other experts have recommended higher minimum staffing standards in order to provide better care to residents.
In theory, higher minimum staffing standards would allow nurses to provide more personal care and attention, which is one of the most important aspects in quality healthcare service. Of course, there may be other changes that need to be made to actually improve outcomes. “What I’ve learned through my compliance world, there’s paper compliance, and everything looks good on paper,“ said Hoffman.
Intended and unintended consequences of minimum staffing standards for nursing homes
While setting a minimum requirement may appear to be beneficial, doing so only to meet regulatory requirements may have some negative consequences. Let’s suppose that a facility is doing well with its current staff number. They are able to provide good care to their residents whilst maintaining good financial health. One day, though, due to some regulatory change, they are obliged to increase their staff numbers. This situation could result in financial imbalance for the company, which would affect—directly or indirectly—their current staff.
All of a sudden, the facility is no longer doing well financially and has to cut corners on care. This then creates a chain effect where employees not satisfied with the changes begin to look for jobs elsewhere. Of course, this is a hypothetical situation but that could easily happen if regulations are set without regard for the individual circumstances of facilities.
Another potentially negative consequence of nursing homes being obligated to have a minimum number of nurses per patient is that it would translate to cutting funds for other staff personnel, like housekeeping, food services, and activities staff. In fact, this was found to be the result of policy changes in California and Ohio, according to a study published in Health Economics.
Ultimately, it is possible to say that establishing a minimum staffing standard is a good approach on paper but that it can cause harm when it disregards potential unintended consequences. An alternative is for facilities to staff with an eye toward the needs of their residents. “It’s all about the acuity and knowing your residents,” Hoffman said. “Under the current regulations, you must staff to the acuity of your residents.”
Resources for Nursing Homes
While keeping up with regulations is a difficult task, doing so has been shown to improve the quality of care over the years. Facilities will need to be on top of available resources to avoid
FTags, or, notifications of violations of federal regulations. There are hundreds of FTags, which fall under the following categories:
- Resident rights
- Freedom from abuse, neglect, and exploitation
- Admission, transfer, and discharge
- Resident assessments
- Comprehensive resident-centered care plan
- Quality of life
- Quality of care
- Physician services
- Nursing services
- Behavioral health
- Pharmacy services
- Laboratory, radiology, and other diagnostic services
- Dental services
- Food and nutrition services
- Specialized rehabilitative services
- Quality assurance and performance improvement (QAPI)
- Infection control
- Compliance and ethics program
- Physical environment
- Training requirements
A good way to avoid getting FTags and stay in compliance with regulations is to learn from the mistakes of others. You can read past on either the Medicare website or on ProPublica. Another useful resource is the 42 U.S. Code § 1395i–3 – Requirements for, and assuring quality of care in, skilled nursing facilities. Print this out and distribute it at your facility, and encourage your staff to study it thoroughly.
Nursing Home Abuse and Neglect Lawsuit Resources
Nursing home abuse and neglect have been serious issues in the U.S. since nursing homes were first introduced back in 1839. Today, nursing home litigation is one of the fastest-growing areas of health care litigation, with thousands of cases a year. Click here to read more about common cases brought against nursing homes. The Centers for Medicare & Medicaid Services (CMS) define a “reportable event” as injury or harm to a resident in a nursing home that requires medical attention or results in death. These events are to be reported and investigated by the appropriate authorities.
Senior care advocates understand the necessity of quality nursing home regulations in order to protect those who are most vulnerable. The National Council on Aging (NCOA) reports that at least $36.5 billion is lost each year due to cases of elder financial abuse These, though, are necessary checks on the quality of care provided at long term care facilities. “There have to be consequences for bad providers who knowingly provide grossly negligent care routinely, based on a profit motive without consequence,” said Hoffman.
In order to avoid litigation, nursing homes should do the following:
- Provide medications according to a physician’s orders
- Train staff appropriately
- Maintain a safe environment for residents
- Conduct background checks before hiring caregivers
- Set realistic expectations when accepting a new resident
- Keep all health records up to date and accurate
CMS Nursing Home Database
The CMS website makes data about nursing homes and other care facilities in the U.S. available to the general public. This information works to motivate facilities to be compliant with all of the regulations that exist. It also helps families in their research into facilities when deciding where to move their loved ones. The information about facilities that is available includes:
- Overall rating
- Health inspections rating and reports
- Quality of resident care
- Number of certified beds
- If it participates in Medicare / Medicaid
- With a resident and family council?
- Whether it is located within a hospital
- Whether it has automatic sprinkler systems in all required areas
- If it is in a Continuing Care Retirement Community
- Ownership type
- Legal business name
- Ownership details
The website, as mentioned before, is a good tool for your facility to compare itself to others, as you are able to read full reports and understand why some facilities earned bad ratings and, in turn, avoid the same mistakes. You can also read the CMS’ guide to choosing a nursing home.
Long term care facilities are responsible for observing a wide range of federal and state regulations. Failure to observe these regulations can cause harm or even the death of residents. Further, as a result of negligence, they may find themselves facing sanctions or even litigation.
Here we presented common nursing home violations and ways to ensure your facility remains in compliance with government standards of care. One way is by understanding what happens when events like neglect occur in facilities—this information can help you create prevention strategies. We have included resources for your facility to keep up to date with regulations and, in turn, avoid FTags.
- 6 Ways to Ensure Compliance With Regulatory Standards for Nursing Homes - August 20, 2021