Guidance on Phase 3 of the Requirements of Participation won’t be released until early next year, even though the implementation date remains Thursday, the Centers for Medicare & Medicaid Services has told state survey agencies and regional offices in a memo.

The agency still plans to release interpretive guidance and training on the Requirements of Participation for Long-Term Care facilities for surveyors — they just won’t be released by this week’s long-planned implementation date. 

“While the regulations will be effective, our ability to survey for compliance with these requirements will be limited until the Interpretive Guidance is released,” the memo stated. 

Friday’s memo did, however, provide additional information and best practices regarding infection control and encouraged providers to use available technical resources in order to prevent and stop the spread of infections. 

In October, LeadingAge called on CMS to delay Phase 3 requirements, citing a lack of guidance.

While the organization appreciates CMS addressing its request for information with the memo, it’s “disappointed with the approach and message — essentially telling providers that while new Phase 3 regulations are effective as of Nov. 28, no interpretive guidance will be issued until spring 2020, but providers may, or may not, be surveyed on the content to ensure compliance,” said Ruth Katz, LeadingAge’s senior vice president of policy and advocacy.

“We all agree that quality nursing home care is important. Such murkiness from the top regulatory authority on Phase 3, the most complex and labor intensive of all three phases in terms of implementation, is disheartening,” she said in a statement to McKnight’s Long-Term Care News

“Lack of clarity keeps nursing homes in a difficult position vis a vis operations and relations with surveyors, and is likely to result in even more variation in survey results from state to state and region to region than is already the case. On the plus side, we do appreciate additional information on infection control,” Katz added. 

The American Health Care Association expressed concerns about proper implementation of Phase 3 without guidance as implementation day approaches. 

“It is challenging for our members to properly implement requirements without the release of the interpretive guidance. The Phase 3 requirements are substantive and complex. We look forward to CMS releasing the guidance as soon as possible,” Sara Rudow, AHCA’s senior director for regulatory services and survey, said in a statement to McKnight’s

Arbitration update

The memo also announced revisions to the final rule on the use of arbitration agreements by long-term care facilities and the release of a new toolkit aimed at helping facilities improve employee satisfaction.

Providers are still prohibited from requiring residents to sign a binding arbitration agreement as a condition of admission, documents stated.

CMS stated that providers will be required to ensure that agreements are in a “form and manner that the resident understands.” Providers, however, won’t be required to “ensure that the agreement for binding arbitration is in ‘plain language’” or “post a notice regarding the use of agreements for binding arbitration” in a visible area for residents and visitors.

“To me, this memo, as it sits, says we should prepare for all Phase 3 requirements to be implemented [Nov. 28], including QAPI and compliance and ethics. This may change if we receive the much awaited final rule that previously proposed to delay these programs,” Amy Stewart, vice president of curriculum development for the American Association of Post-Acute Care Nursing, told McKnight’s.