Last summer, the Journal of Health Care Finance published my thesis on how regulatory “compliance” in the nursing home setting fails to substantially prevent substandard quality care .[1] During this COVID crisis, we are seeing national attention on nursing homes who have failed to protect their residents by preventing the spread of the COVID-19 virus.
Part of the problem, as I see it, is that the regulations themselves fail to effectuate real change in facilities. When you look at it this way, what the industry needs is not more regulations but better implementation and enforcement of the existing regulations. For example, as part of the 2016 Final Rule, CMS rolled out 42 CFR § 483.70(e).[2] This regulation went into effect in November 2017. It required that a facility "conduct and document" an assessment to determine what resources are necessary to care for its residents "competently" during both day-to-day operations and in emergencies. Rather than improving facility preparedness, it seems that this regulation essentially amounted to a lot of busy-work and "paper compliance" related activities. Surveyors asked to see a copy of the assessment to check off that a facility was in compliance with the regulation without actually evaluating whether the facility used the information to improve preparedness. In an actual emergency, as we are currently facing, that regulation failed to produce the desired outcome of nursing homes being prepared to handle emergencies.
Another rule that went into effect with the 2016 Final Rule is 42 CFR § 483.20(b) which required facilities to have an in-house infection preventionist with specialized training in infection control and prevention. This requirement went into place effective November 2019. So, in theory, by April 2020, we should be looking at infection control programs that are as robust as ever. Unfortunately, for a lot of nursing homes, we are seeing the exact opposite. How is it that a brand-new regulation (designed to protect residents from the spread of infection) has failed to achieve the desired outcome?
What is the right response? More regulations? Less regulations? More lawsuits? Immunity from liability? Different enforcement of the regulations? What is clear is that what has been done is not working. It has not been working for a long time. “More of the same” just shouldn’t be the answer that regulators reach for when deciding the best way to address the national nursing home issues.
[1]The CMS 2016 Final Rule: More of the Same for Skilled Nursing Facilities; available at: https://www.healthfinancejournal.com/index.php/johcf/article/view/185 [2] CMS Final Rule for
Long-Term Care Facilities; (2016) available at: https://www.gpo.gov/fdsys/pkg/FR-2016-10- 04/pdf/2016-23503.pdf
