Debating the obscure parts of the final rule

Elizabeth Newman
Elizabeth Newman

If misery loves company, take comfort in knowing many of your long-term care colleagues are doing the same thing this week. Specifically, many of us are wading through the 713-page final rule for nursing homes from the Centers for Medicare & Medicaid Services released Wednesday. Full disclosure: I've made it to page 100.

If you were with me at the AADNS conference in Baltimore, I'd kick back with you as we selected comfortable chairs, and would suggest we have wine and cheese as we read. But in lieu of that, I wanted to share what I thought were more obscure, but interesting, comments related to the proposed rule.

A side note: CMS takes a tone similar to those in a healthy marriage in many of these comment responses. There's a format of “I hear what Debra is saying about resident rights, but here's what I think.” It's respectful to long-term care providers, especially when Debra's comment sounds insane.

Terminology

Every few months, someone will complain to me about McKnight's use of the phrase “nursing home,” or, conversely, “skilled nursing facility.” In the rule, commenters had equal ambivalence. Some said long-term care facilities are housing more shorter-stay residents, ergo skilled healthcare facilities better reflect services. On the flip side, some would rather we and CMS use the word “homes.”

The response was that CMS recognizes many residents consider an LTC facility their home,  and support them in “developing a home-like environment.” But ultimately, it wrote - and I agree - that LTC facilities “are specialized healthcare settings for individuals not capable of living independently and are not directly comparable to private residences.”

In another terminology debate, a commenter said “nursing aide” is an obsolete term, and the correct terminology is “nursing assistant.” At McKnight's, we agree, and use that, but CMS pointed out it will use “nursing aide” since that's what is in the statute.

One terminology section I'm still confused about relates to the commenter who complained “oral” and “verbal” are used interchangeably in the proposed rule. CMS said it should be consistent, and that it would change to using “verbal” throughout the rule. After talking to a speech language pathologist, I neither know what the commenter was getting at nor agree with CMS saying the terms are interchangeable. My understanding is verbal relates to communication and oral often refers to issues such as swallowing. If anyone can clarify this, holler.

Resident rights

I anticipate many blogs addressing issues such as residents and their care plans, and other resident right issues. But I also found it interesting how a few commenters wanted CMS to include the right to vote and require facilities to have policies and procedures to support voting.

This is, to me, a classic case of good intentions gone awry. I would hope with this upcoming election that facilities make sure residents talk to new residents about voting registration and change of address and either provide help with an absentee ballot or transportation to the polls. It's great if a facility asks an election official to come come out to register residents, and I support training for some staff to understand what they can do to help a resident vote.

But I don't agree that being in an LTC facility creates a damaging limitation on your right to vote. I agree with CMS, which wrote that while it supports best practices, many of the suggestions related to election officials are “overly prescriptive and burdensome.”

This is a case where states may have specific regulations or, as CMS wrote, providers should refer to interpretive guidance.

To me, this was creating an issue out of something I've never heard anyone complain about. If you feel there is a widespread need to address voter suppression issues among the institutionalized elderly, by all means, let me know.

Finally, I have to back up CMS officials who said yesterday that some of the parts of the rule aren't new. This is a little unfair in that not everyone knows everything all the time. But in cases such as commenters complaining that a resident's right to select his or her attending physician was both new and burdensome, take a seat. As CMS wrote, “The right of a resident to choose his or her attending physician is not new. It is in current regulations and is a statutory requirement at both sections 1819(c)(1)(A)(i) and 1919(c)(1)(A)(i) of the Act.”

I could probably write a blog post with new aspects of this rule every week for a month, but I'd rather you all weigh in with your thoughts. Remember, there's more than a year until Phase 2 kicks in, and we want to know what you're doing and how you're doing it. Until then, let us click our metaphorical glasses of merlot together in a toast to better care for residents.

Follow Elizabeth Newman @TigerELN.



Daily Editors' Notes

McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Emily Mongan.

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