The Nursing Home Get Out of Jail Card (“We Don’t Want Our Patient Back”). It’s Now Adios.

By  |  January 30, 2017 | 

The Centers for Medicare & Medicaid Services (CMS) has not updated its rules (“conditions for participation”) for nursing homes in twenty-five years. Late last year they finally did.

Many of the changes will have an impact on the daily lives of NH residents but are far removed from hospital medicine.  Think a resident’s ability to pick their own roommate and have all hours visitors.  However, there are a few changes that intersect with HM, and a notable one will affect how you respond to a frequently encountered roadblock long-term care facilities sometimes throw our way.

First, though, some of the changes CMS finalized.  With SHM members now moving into the post-acute and LTC realm, several have real relevance (I only cite a sliver of them):

  • Ensuring that long-term care facility staff members are properly trained on caring for residents with dementia and in preventing elder abuse.
  • Strengthening the rights of long-term care facility residents, including prohibiting the use of pre-dispute binding arbitration agreements. [currently in conflict]
  • Ensuring that staff members have the right skill sets and competencies to provide person-centered care to residents. The care plans developed for residents will take into consideration their goals of care and preferences.
  • Updating the long-term care facility’s infection prevention and control program, including requiring an infection prevention and control officer and an antibiotic stewardship program that includes antibiotic use protocols and a system to monitor antibiotic use.
  • Improving care planning, including discharge planning for all residents with involvement of the facility’s interdisciplinary team and consideration of the caregiver’s capacity, giving residents information they need for follow-up after discharge, and ensuring that instructions are transmitted to any receiving facilities or services*.
  • Allowing dietitians and therapy providers the authority to write orders in their areas of expertise when a physician delegates the responsibility and state licensing laws allow.

*Nursing homes must incorporate a minimal amount of information in a transfer summary in the event the patient requires transfer to an acute care facility. The revised set of requirements includes the following:

  1. Contact information of the practitioner responsible for the care of the resident
  2. Resident representative information including contact information,
  3. Advance directive information
  4. Special instructions or precautions for ongoing care
  5. The resident’s comprehensive care plan goals
  6. All other necessary information, including a copy of the resident’s discharge summary and any other documentation, as applicable, to ensure a safe and effective transition of care.

But here is the one to take note of.  I highlight it because all of us have faced the problem of the one-way ticket of extremus evaluation, i.e., “please assess this patient for X, and incidentally when you complete your workup, find them a new home.  We just sold the bed.”

The existing regulations provide a lot of protection against being bounced from nursing homes; the new rule extends those protections to someone who’s been hospitalized but intends to return. That resident has all the rights that go with discharge and can appeal the decision. Nor can the facility transfer the resident while she is appealing. Here is the rule straight from the Federal Register†:

In §?483.15(c)(1)(iv), we proposed to add a new requirement that a facility’s notice of its bed-hold policy and readmission must also include information on the facility’s policy for readmission, as required under proposed §?483.15(c)(3), for a resident whose hospitalization or therapeutic leave exceeds the bed-hold period under the state plan. Finally, we proposed to redesignate existing §?483.12(a)(3) as §?483.15(c)(3) and revised it to add a new requirement that a resident who is hospitalized or placed on therapeutic leave with an expectation of returning to the facility must be notified in writing by the facility when the facility determines that the resident cannot be readmitted to the facility, the reason the resident cannot be readmitted to the facility, and the appeal and contact information specified in §?483.15(b)(5)(iv) through (vii).

Like all regulations and managerial To-Do lists, and we live this on our side as well, there is the letter of the law and the spirit of the law.  There are staffing issues, and costs to every administrative policy and some of the above will not happen unless patients, families, hospitals or providers make a ruckus.  Some may never happen and are ignored. Some may be pointless and deserve to sit in the dumpster.

However, the return to sender refresh has more than symbolic meaning.  All of us have run into the issue of a patient who has cognitive, behavioral, or financial challenges–and the nursing home inserts a note upon transfer or drops a bomb on the day of discharge conveying a lack of enthusiasm in seeing their patient again.  Not cool. Knowing the rule change allows you to defend against this custom and imparts a fairness to the sometimes demeaning process of resettling vulnerable elders and persons with disabilities.


†Congress makes laws and executive agencies fill in the blanks.  When an agency intends to alter the way they do business they publish proposed rules and solicit feedback from the public, which includes the ranks of citizens, businesses, professional societies and special interest groups.  Sometimes they get a smattering of reaction and other times they get comments by the truckload.  The agency addresses the comments and publishes the rationale behind their ultimate choices when the final rules get posted. If you scan the register, you can see for yourself how much time and effort goes into this endeavor. These are not just faceless bureaucrats working on the public’s behalf. The task is hard and thankless, and it’s important to know career workers in these agencies play a vital role in the management of our government. Dismiss them at your peril–as many folks unfortunately do.

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About the Author: Bradley Flansbaum

Bradley Flansbaum
Bradley Flansbaum, DO, MPH, MHM works for Geisinger Health System in Danville, PA in both the divisions of hospital medicine and population health. He began working as a hospitalist in 1996, at the inception of the hospital medicine movement. He is a founding member of the Society of Hospital Medicine and served as a board member and officer. He speaks nationally in promoting hospital medicine and has presented at many statewide meetings and conferences. He is also actively involved in house staff education. Currently, he serves on the SHM Public Policy Committee and has an interest in payment policy, healthcare market competition, health disparities, cost-effectiveness analysis, and pain and palliative care. He is SHM’s delegate for the AMA House of Delegates. Dr. Flansbaum received his undergraduate degree from Union College in Schenectady, NY and attended medical school at the New York College of Osteopathic Medicine. He completed his residency and chief residency in Internal Medicine at Long Island Jewish Medical Center in New York. He received his M.P.H. in Health Policy and Management at Columbia University. He is a political junky, and loves to cook, stay fit, read non-fiction, listen to many genres of music, and is a resident of Danville, PA.


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