California AG Criticizes Proposed Delay of Phase 3 RoP Rules for Nursing Homes

California Attorney General Xavier Becerra criticized a proposed federal rule that would delay certain aspects of Phase 3 of the Requirements of Participation for skilled nursing facilities, arguing that the move would roll back key protections for residents.

Announced in July, the proposed rule seeks to reduce reporting and paperwork burdens through delaying certain parts of the Requirements of Participation (RoPs) — primarily by holding off on regulations related to the Quality Assurance and Performance Improvement (QAPI) program, as well compliance and ethics program mandates.

CMS said the revisions to the RoPs are intended to streamline the current requirements and give providers flexibility. But the rules violate several laws — including the Affordable Care Act (ACA) and the Social Security Act (SSA) — and would harm residents, Becerra argued in a comment letter submitted to the Centers for Medicare & Medicaid Services (CMS) on September 16.

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“Not only does it violate several laws, it threatens the quality of care offered in nursing homes and other long-term care facilities,” Becerra said in the letter. “If finalized in substantially similar form, the Rule would harm an ever-growing population of nursing home residents and states like California that have prioritized the safety of our residents and the public health.”

The changes in the proposed rule would affect three primary area: the designation and training of the infection preventionist; the Quality Assurance and Improvement Program (QAPI); and the compliance and ethics program. Becerra detailed the changes and cited several sections of the SSA and the ACA related to resident rights with regard to grievances, psychopharmacologic drugs, and infection control — areas he argued would be violated by the proposed changes.

He also argued that the rules do not acknowledge the costs associated with resident safety that would result from the RoP delay and the changes.

“Over half of the Proposed Rule’s purported cost reductions — $376 million in total — result from weakening the 2016 Rule’s standards for the physical environments in which residents live, including for fire safety and the adequacy of bathroom facilities; another $14 million in reductions comes from reducing the frequency of facility assessments to every two years instead of annually,” he wrote.

Impact on state programs

Out of California’s approximately 400,000 skilled nursing facility residents, 56% have their costs covered wholly by the state’s Medicaid program, Medi-Cal, with an average cost of approximately $220 per person per day, Becerra noted in the letter. Approximately 62,000 California residents depend on that program for long-term care, or 62% of the total number of long-term care residents.

Should the rollbacks create worse conditions or health for residents, the state could see increased costs through excess Medicaid long-term spending, Becerra said.

The proposed rule also would alter the civil monetary penalty (CMP) process — which, according to Becerra, in turn would hinder investigations by California’s Medicaid Fraud Control Units. Under current rules, operators can file a waiver of their right to contest a CMP in exchange for a 35% reduction in the total penalty amount; the final rule would make that waiver and penalty-cut process automatic.

“The changes in the Proposed Rule decrease the dollar amount and frequency of penalties that — though rare and low in amount — nonetheless help safeguard Medicare and Medicaid beneficiaries,” Becerra wrote in the comment letter. “The threat of penalties is a deterrent to facilities engaging in abusive behavior.”

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