Long-term care providers received a pair of partial gifts from federal regulators Tuesday and leaders were correspondingly guarded about some of the potential effects.

Officials proposed postponing by a year certain new requirements for participation in the Medicare and Medicaid insurance programs. 

They also issued a final rule allowing pre-dispute arbitration agreements — but it comes with significant strings attached.

The Centers for Medicare & Medicaid Services proposed delaying until November 28, 2020, requirements pertaining to compliance and ethics, as well as Quality Assurance Performance Improvement plan (QAPI) stipulations. Officials said the request is intended “to avoid confusion and promote transparency” while also furthering the administration’s goal of reducing providers’ administrative burden. 

Other phase three requirements would remain on track for implementation on Thanksgiving Day this year.

Providers would save $616 million annually under the proposals, officials projected.

“While [changes in the requirements of participation] feel relatively minor, they could go a long way at the facility level to reducing paperwork that is duplicative,” said Cynthia Morton, executive vice president for the National Association for the Support of Long-Term Care in an email to McKnight’s.

“The proposal to reduce some of the QAPI requirements in order for the nursing facility to better tailor their program for compliance is a good move by CMS,” she added.

Also in favor was David Gifford, M.D., the Senior Vice President of Quality and Regulatory Affairs and Chief Medical Officer at the American Health Care Association.

“We are pleased that CMS preserved important advances in these regulations such as those addressing infection control and prevention and resident rights,” he said. “At the same time, CMS has recognized the need to eliminate regulations that result in unnecessary paperwork.”

Arbitration uproar

The administration’s final arbitration rule is more controversial. Federal regulators seemed to be intent on satisfying wishes from both providers and consumer advocates, thus upsetting both sides.

Morton called the final rule “good for providers that want to use them (arbitration clauses).”

“But it kind of splits the baby down the middle in that it doesn’t allow providers to require them as a condition of participation,” she noted. “CMS was under pressure by the resident advocates on this issue.”

The rule prohibits nursing homes from requiring residents to sign a pre-dispute arbitration agreement as a condition for receiving care. It also requires notifying residents or their representatives that they do not have to sign a binding arbitration agreement.

CMS also forbid conditions that prevent residents or others from communicating with federal, state or local officials about a nursing home arbitration agreement.

In October 2016, the Obama administration banned arbitration clauses’ use in long-term care facility admission agreements. But a legal challenge, led by the AHCA among others, led to an injunction that stalled that effort. 

Then, in June 2017, under the new Trump administration, CMS proposed a rule that would remove the ban and sought public comment. Long-term care providers say arbitration leads to quicker resolution times and lower costs for both providers and those filing claims.

The final and proposed rules unveiled Tuesday are part of CMS’ recent five-part approach focused on redesigning long-term care oversight, which is sure to continue generating controversy.

Comments on the proposed RoP rule will be collected until September 16 and may be submitted here.