CMS Proposes one-year delay of the Phase III ROP

Lisa Volk and Jackie Pappalardi in Clinical & Quality

This is a brief overview of CMS’ proposed delay to the implementation of Phase III on November 28th, 2019, there is a 60-day comment period.

In its proposed regulations, CMS states that its objectives are to improve the quality of existing regulations consistent with statutory requirements; streamline procedural solutions for businesses to enter and operate in the healthcare marketplace; maximize net benefits (including benefits that are difficult to quantify); and reduce costs and other burdens on businesses to comply with regulations.

Resident Rights

CMS proposes to revise the requirement for facilities to ensure that residents remain informed of the name and specialties of the physician and other primary care professionals responsible for their care and is provided with their contact information.  Specifically, CMS proposes to reduce burden by revising the provision to require facilities to provide residents with their or upon a resident’s request.

In addition, CMS proposes revisions to the grievance policy requirements.  Proposed revisions include clarifying that general feedback may not rise to the level of an official grievance, removing the specific duties required of the grievance official, removing prescriptive requirements related to written grievance decisions and reducing the amount of time that facilities must retain evidence demonstrating the results of grievances from 3 years to 18 months.

Admission, Transfer, and Discharge Rights

CMS proposes to revise the requirement for facilities to send discharge notices to State LTC Ombudsman by applying this requirement to “facility-initiated involuntary transfers and discharges” only. This proposed revision would reduce the paperwork burden on facilities.

Quality of Care

CMS proposes to modify requirements to focus on the appropriate “use” of bed rails and eliminate references to the “installation” of bed rails.  These revisions would provide clarity and address stakeholder concerns regarding the purchase of beds with bed rails already in place with no practical means of removal.

Nursing Services

CMS proposes to reduce the timeframe that LTC facilities primary care physician’s name and contact information upon admission, with any change. CMS also proposes to reduce the timeframe that LTC facilities are required to retain posted daily nursing staffing data from 18 months to 15 months, or as required by state law. The proposed revision would reduce a paperwork burden on facilities.

Behavioral Health 

CMS proposes to remove requirements that are duplicative of other LTC requirements in other sections of the regulation and improve clarity.

Pharmacy Services

CMS proposes to remove the existing requirement that Pro re Nata (PRN), or as needed, prescriptions for anti-psychotics cannot be renewed unless the attending physician or prescribing practitioner evaluates the resident for the appropriateness of that medication. This proposed revision would increase flexibility by allowing each facility to allow for PRN orders of all psychotropic medications to be extended beyond 14 days if the attending physician or prescribing practitioner believes it appropriate and documents his or her rationale in the resident’s medical record and indicates the duration for the PRN order.

Food and Nutrition Services

CMS proposes to revise the required qualifications for a director of food and nutrition services to provide that those with several years of experience performing as the director of food and nutrition services in a facility could continue to do so.  CMS proposes that at a minimum an individual designated as the director of food and nutrition services would receive frequently scheduled consultations from a qualified dietitian or other clinically qualified nutrition professional; and would either have 2 or more years of experience in the position of a director of food and nutrition services, or have completed a minimum course of study in food safety that includes topics integral to managing dietary operations such as, but not limited to, foodborne illness, sanitation procedures, food purchasing/receiving, etc. This proposal would help to address concerns related to costs associated with training for existing staff and the potential need to hire new staff.


CMS proposes to clarify that data collected under the facility assessment requirement can be utilized to inform policies and procedures for other LTC requirements. In addition, CMS proposes to remove duplicative requirements and revise the requirement for the review of the facility assessment from annually to biennially.

Quality Assurance and Performance Improvement 

CMS proposes to revise the requirement for facilities to implement a Quality Assurance and Performance Improvement (QAPI) program by removing prescriptive requirements to allow facilities greater flexibility in tailoring their QAPI program to the specific needs of their individual facility.

Infection Control

CMS proposes to remove the requirement that the infection preventionist (IP) work at the facility “part-time” or have frequent contact with the infection prevention and control program (IPCP) staff at the facility. CMS will instead require that the facility must ensure that the IP has sufficient time at the facility to meet the objectives of its IPCP. CMS will also include comment solicitations on this proposal. 

Compliance and Ethics Program

CMS proposes to remove many of the requirements from this section not expressly required by statute. Proposed revisions include removing the requirements for a compliance officer and compliance liaisons and revising the requirement for reviewing the program from annually to biennially. 

Physical Environment

CMS proposes to allow older existing LTC facilities to continue to use the 2001 Fire Safety Equivalency System (FSES) mandatory values when determining compliance for containment, extinguishment, and people movement requirements. This proposal would allow older facilities who may not meet the FSES requirements in the recently adopted 2012 Life Safety Code (LSC) to remain in compliance with the older FSES without incurring substantial expenses to change their construction types, while maintaining resident and staff safety. In addition, CMS proposes to revise the requirements that newly constructed, re-constructed, or newly certified facilities accommodate no more than two residents in a bedroom and equip each resident room with its own bathroom that has a commode and sink. Specifically, CMS proposes to only apply this requirement to newly constructed facilities and newly certified facilities that have never previously been a nursing home. This would remove unintended disincentives to purchase facilities or make upgrades to existing facilities. 

Technical Corrections

CMS proposes to correct several technical errors that have been identified in 42 CFR part 483 subpart B. 

Survey, Certification, and Enforcement Procedures

CMS proposes to revise the informal dispute resolution and independent informal dispute resolution processes to increase provider transparency by ensuring that administrative actions are processed timely, and that providers understand the outcomes of results.

Civil Money Penalties: Waiver of Hearing, Reduction of Penalty Amount

CMS proposes to eliminate the requirement for facilities to actively waive their right to a hearing in writing and create in its place a constructive waiver process that would operate by default when CMS has not received a timely request for a hearing. The accompanying 35 percent penalty reduction would remain. This proposed revision would result in lower costs for most LTC facilities facing civil money penalties (CMP)s and would streamline and reduce the administrative burden for stakeholders.

Phase 3 Implementation of Overlapping Regulatory Provisions

The revised LTC requirements for participation are being implemented in three phases. Phases 1 and 2 were implemented in November of 2016 and 2017, respectively. Phase 3 includes additional regulatory provisions that are scheduled to be implemented on November 28, 2019. Of the Phase 3 provisions, this regulation proposes revisions that, if finalized, would have an impact on provisions that fall into three primary areas— (1) designation and training of the infection preventionist (§483.80), QAPI (§483.75), and compliance and ethics program (§483.85).  We propose to delay implementation of some these Phase 3 provisions until 1 year following the effective date of this regulation. CMS does not propose to delay those requirements related to the infection preventionist at §483.80(b)(1) through (4), (c) and §483.75(g)(1)(iv). This would avoid unnecessary work, confusion and burden associated with implementing provisions, which may then change in a final rule shortly thereafter.

Summary of Costs and Benefits

In total, CMS has identified and proposed reductions in information collection burden whose annual costs today, and future annual savings will be approximately $59 million. CMS proposes other reforms in current regulations that will generate annual savings in operating costs of almost $210 million. CMS also propose reducing punitive facility construction requirements that will save more than $325 million in costs over each of the next 5 years. Total estimated cost savings over each of the first 5 years are approximately $616 million. Additional information to follow as more becomes available.

NYSHFA will continue to provide additional information on CMS’ draft regulations.


Lisa Volk, RN, B.P.S., LNHA
Director, Clinical & Quality Services
518-462-4800 x15

Jackie Pappalardi, RN, BSN
Director, Educational Development & Grant Management
518-462-4800 x16