CMS NEW REGULATIONS

‘Vigilance,’ ‘solid systems’ needed ahead of survey changes

The Centers for Medicare & Medicaid Services posted online an advance copy of surveyor guidance that will go into effect in February 2025. The new guidance, coming in at nearly 900 pages, includes extensive changes to discharge planning, antipsychotic use, chronic pain management, and other rules used to guide and assess nursing home quality.

While the changes touch a range of survey topics, Sabrena McCarley, secretary of the National Association of Rehab Providers and Agencies and director of clinical reimbursement for Transitional Care Management, said CMS highlighted two key themes in its update: the need for supportive documentation in the medical record and collaboration among a nursing home interdisciplinary team. 

• The reliability of your clinical documentation
• Whether your documentation supports submitted claims
• The risk of non-compliance with regulatory requirements

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DEFENSE STRATEGY

Early, focused reviews to combat “profits over people” claims

DRI’s recent Senior Living and Long-Term Care Litigation Seminar addressed the allegation that healthcare providers, especially nursing homes, are more concerned about the “bottom line” than their resident’s care in an engaging panel discussion with Aaron McQueen (Jackson Kelly PLLC, Akron, OH), Martin Delahunty III (CommuniCare, Cleveland, OH), Alexis Lumell (Gallagher Bassett, Chicago, IL), and Angelo Suozzi (Ventas, Chicago, IL) on Exposing Plaintiff’s Overused “Profits Over People” Argument.

It is important to start the defense process early, at the point of an incident and before a lawsuit.  Witness statements should be preserved, particularly with the current environment of high staffing turnover.  Relevant discovery documents include the medical record (including the prior medical history), Care Plans, and a list of professionals who cared for the resident.  In pursuing “profits over people” claims, plaintiffs often request documents records about all residents, all staffing, all staff training, and administrative emails.  These business operation records do not pertain to the care provided to the individual claimant, and defense counsel should object to such overly broad and irrelevant requests.

Identifying all interactions with the patient early during case preparation is key to risk assessment and strategy development. When quality of care is called into question, facilities must be able to demonstrate the type and level of care that was provided through documentation in the resident’s medical records, as well as through policies, procedures, and other business records.

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