Location:
ASSISTED LIVING; HOME CARE SERVICES; INSURANCE - HEALTH - REFORM; NURSING HOMES;
Scope:
Federal laws/regulations; Background;

OLR Research Report


September 10, 2010

 

2010-R-0304

OLR BACKGROUNDER: FEDERAL HEALTH CARE REFORM: LONG-TERM CARE PROVISIONS

By: Nicole Dube, Associate Analyst

SUMMARY

The federal Patient Protection and Affordable Care Act (P.L. 111-148, PPACA) became law on March 23, 2010. PPACA was amended by the Health Care and Education Reconciliation Act (P.L. 111-152, HCERA), which became law on March 30, 2010. This report provides a brief summary of key provisions that affect long-term care. It does not include those related to Medicare. Major long-term care provisions include:

1. establishing a voluntary, consumer-funded long-term care insurance program, the “CLASS Act”;

2. extending the federal Money Follows the Person demonstration program until 2016 and reducing its institutional residency requirement from six months to 90 days;

3. enhancing the Medicaid home and community based services (HCBS) state plan benefit by expanding available services and eliminating state discretion to cap participants;

4. offering financial incentives to states currently spending less than 50% of their Medicaid long-term care dollars on HCBS;

5. applying the same spousal impoverishment protections to Medicaid HCBS recipients as given to Medicaid nursing home residents;

6. improving the oversight and transparency of nursing homes;

7. providing additional funding through 2014 for aging and disability resource centers (ADRC);

8. establishing an “Elder Justice Act” to help prevent and eliminate elder abuse, neglect, and exploitation;

9. establishing reporting requirements and penalties for certain long-term facility professionals regarding crimes occurring in these facilities; and

10. establishing a three year national background check demonstration program for direct care workers in long-term care facilties.

These provisions generally take effect in 2010 or 2011, but some will not be implemented until 2012 or later. Certain details on the law's implementation will not be available until the federal Department of Health and Human Services (HHS) issues regulations and guidance.

COMMUNITY LIVING ASSISTANCE SERVICES AND SUPPORTS (CLASS) ACT

The CLASS program is a voluntary, consumer-funded long-term care insurance program that provides working adults who develop a functional or cognitive impairment with a daily cash benefit to purchase non-medical long-term care services and supports. Benefits must be at least $50 per day but will vary depending on the severity of the individual's impairment. To receive benefits, enrollees must (1) pay premiums for at least five years, (2) work for at least three of those five years, and (3) have a functional or cognitive impairment (as defined by the HHS secretary) that lasts for at least 90 consecutive days and is certified by a licensed healthcare practitioner.

The program is administered by HHS and funded entirely by monthly premiums paid through voluntary payroll deductions or direct payments. Premium levels will be determined by the HHS secretary and are expected to range from $140 to $240 per month, depending on an enrollee's age. Working, full-time students and individuals with income below the federal poverty level will pay a nominal monthly premium of $5.

The program also provides voluntary advocacy services, advice, and assistance counseling to help beneficiaries access and coordinate long-term care supports and services.

The program takes effect January 1, 2011. But, the HHS secretary has until October 1, 2012 to adopt regulations to define, implement, and administer the program. Although the law does not specify an implementation date, enrollment will likely start sometime after these regulations are adopted.

CLASS benefits cannot be counted as income in determining an individual's eligibility for any other federal, state, or local assistance program. Benefits are intended to supplement rather than replace traditional long-term care insurance or Medicaid coverage. OLR Report 2010-R-0313 describes this program in greater detail.

MEDICAID HOME AND COMMUNITY BASED SERVICES (HCBS)

Community Choice First Option

PPACA creates a new Medicaid community-based attendant service option for people who want to remain at home or in a community-based setting but need an institutional level of care. The option becomes available October 2011. Services will be available to individuals eligible for medical assistance under the state Medicaid plan who (1) have income at or below 150% of the federal poverty level (FPL) or (2) have income above 150% FPL and meet the state's nursing facility clinical eligibility requirements.

Services provided under this option include assistance with (1) activities of daily living (i.e. eating, toileting, grooming, dressing, bathing, etc.), (2) instrumental activities of daily living (i.e. meal planning, managing finances, shopping, etc.), and (3) health related tasks. It also includes transition assistance, such as rent and utility deposits and other services and supports identified in an individual's service plan.

The law requires each state to establish a Developmental and Implementation Council primarily consisting of disabled individuals and seniors and their representatives, with whom it must collaborate to implement this optional state plan amendment. States must ensure these services and supports are provided in a state-wide, individualized manner that emphasizes consumer choice and independence. They must also develop a quality assurance system to monitor service provision and collect data on service utilization, cost, and impact for each fiscal year they are provided.

States that choose to adopt this in their state Medicaid plan will receive a six percentage point increase in their federal reimbursement rate. (Connecticut would receive 56% rather than 50%.) During the first fiscal year in which the option is implemented, the state must maintain or exceed the level of medical assistance expenditures it provided to seniors and disabled individuals in the preceding fiscal year.

State Balancing Incentive Payment Program

This program, which runs from October 1, 2011 through September 30, 2015, offers temporary financial incentives to states that spent less than 50% of their Medicaid long-term care dollars on HCBS in fiscal year 2009. Participating states spending between 25% and 50% will receive a two percent increase in their federal matching funds; states spending less than 25% will receive a five percent increase. (In FY 2009, Connecticut spent 35% on Medicaid HCBS.)

Within six months of applying, states must implement administrative changes designed to increase Medicaid HCBS utilization including:

1. “No wrong door single point of entry system” enabling consumers to access long-term care information, referrals, and financial and functional eligibility assessments though a single access point;

2. “conflict free” case management to develop individual service plans and arrange for and conduct ongoing service monitoring; and

3. core standardized assessment tools used statewide to determine eligibility and services.

Participating states are expected to increase their Medicaid HCBS spending to a target percentage by September 30, 2015. States whose Medicaid HCBS spending was less than 25% in 2009 must increase it to 25%. All other states must increase such spending to 50%.

Protection For Medicaid HCBS Recipients Against Spousal Impoverishment

Federal law allows the spouse of someone who applies for Medicaid in a nursing home to keep a portion of the couple's assets in order not to impoverish him or herself and end up also requiring institutional care. While the institutionalized spouse may only retain $1,600 in liquid assets, the community spouse must be allowed to keep at least half of all spousal assets (this is known as the “community spouse protected amount”). Currently, if the couple's assets are less than $21,912 the community spouse can keep the entire amount. The maximum amount a community spouse can keep is $109,560 (These amounts are updated annually.) PPACA applies these same rules to spouses of Medicaid HCBS recipients for the five year period beginning January 1, 2014.

Medicaid HCBS State Plan Option

Historically, states (including Connecticut) have provided Medicaid HCBS through a federal 1915(c) waiver. But, the federal Deficit Reduction Act of 2005 allowed states to offer HCBS as a 1915(i) state plan option starting in January of 2007. Under 1915(i) states do not have to require individuals to meet institutional levels of care to qualify for services or demonstrate budget neutrality as they do under 1915(c) waivers. The state plan option allows states to offer fewer HCBS than under 1915(c) waivers and to limit eligibility to Medicaid-eligible individuals with income up to 150% FPL. As of April 2010, only four states (Iowa, Colorado, Nevada, and Washington) implemented the state plan option.

In order to encourage increased use among states, PPACA enhances the state plan option by expanding available services, aligning income eligibility criteria with other HCBS programs, and eliminating state discretion to cap participants. All program changes took effect April 1, 2010.

Eligibility. States now have the option to expand the HCBS state plan option to include individuals eligible for a HCBS waiver who have incomes up to 300% of Supplemental Security Income (SSI). Prior eligibility was limited to beneficiaries with income up to 150% of FPL. Individuals currently eligible under the old requirements will be grandfathered into the program as long as they continue to meet their initial eligibility requirements. Previously, an individual could lose services if the state changed income or need-based eligibility criteria.

In addition, states may create a new optional Medicaid eligibility category for individuals who meet 1915(i) eligibility requirements. Previously, states could only offer 1915(i) benefits to Medicaid-eligible individuals. States that did not extend Medicaid eligibility up to 150% FPL could not accept higher income individuals without expanding their entire Medicaid program. This enables states to extend full Medicaid benefits to 1915(i) participants.

Benefits. States are given the flexibility to vary the type, scope, and duration of services offered as well as the ability to target specific services to certain populations. Targeted services may be provided for a five-year period, during which states can phase in services and eligibility. (States may request a five-year renewal.) Expanded services may be offered with approval from the federal Centers for Medicare and Medicaid Services (CMS). States must provide services statewide and can no longer implement enrollment caps or waiting lists.

Money Follows the Person

Money Follows the Person (MFP) is a five-year federal demonstration program that permits states to move people out of nursing homes or other institutional settings into less-restrictive, community-based settings.  PPACA extends the demonstration period to 2016 and reduces from six months to 90 days the minimum institutional residency requirement for eligibility and prohibits states from imposing a longer one.

For the first 12 months the participant lives in the community, the program will pay an enhanced federal Medicaid match.  (In Connecticut, the normal Medicaid match is 50%, and the enhanced demonstration match is up to 75%). Federal matching funds (50%) are also available to support services not allowed by Medicaid that the state will provide during the demonstration, such as housing coordinators.

State law limits the maximum number of program slots to 5,000.  By July 1, 2012, the DSS commissioner must implement a similar home- and community-based services program for adults who may not meet the MFP institutionalization requirement (often referred to as MFP II).  Between December 2008 and May 2010, MFP has transitioned 255 individuals into the community who are eligible for the enhanced federal match.

NURSING HOMES

Nursing Home Ownership Disclosure

PPACA requires nursing homes to disclose more detailed information about their ownership to federal and state agencies and the public. A facility must keep a record of and information on (1) governing body members, (2) officers, directors, members, partners, trustees, or managing employees, and (3) all additional disclosable parties. It must

also disclose the organizational structure of each additional disclosable party and a description of each party's relationship to the facility and to one another.

The law defines an “additional disclosable party” as any person or entity who (1) exercises operational, financial, or managerial control over the facility; (2) provides policies or procedures for facility operations; (3) provides financial or cash management services; (4) leases or subleases real property to the facility; (5) owns a whole or part interest of 5% or greater; or (6) provides management or administrative services, clinical consulting services, or accounting and financial services.

A facility must make this information available upon request to the HHS Secretary, HHS Inspector General, the state in which the facility is located, and the state long-term care ombudsman. The HHS secretary must issue final regulations by March 23, 2012. All information must be made available to the public at least one year after these regulations are issued.

Compliance and Ethics Program

By March 23, 2013, nursing homes must implement a compliance and ethics program that effectively prevents and deters criminal, civil, and administrative violations and promotes quality of care. The HHS secretary must issue regulations by March 23, 2012 specifying program requirements and may include a model compliance program.

Quality Assurance and Performance Improvement Plan

By December 31, 2011, the HHS secretary must establish and implement a quality assurance and improvement program for nursing homes, including multi-unit chains. The program will establish quality assurance and performance improvement standards and provide technical assistance on the development of best practices. A facility must submit to the HHS secretary its plan for meeting the standards and implementing best practices no later than one year after final regulations are adopted.

Nursing Home Compare Website

In 1998, the CMS implemented “Nursing Home Compare,” a national, online nursing home report card. It provides information on every Medicare and Medicaid certified nursing home in each state, including inspection results, hours of direct care, and 19 quality measures for

short- and long-term residents. The website allows individuals to search nursing homes by name, city, county, state, or zip code. By March 23, 2011, PPACA requires the website to include the following additional information:

1. staffing data for each nursing home, including resident census; hours per resident per day; staff turnover and tenure; facility, state, and national staffing averages; differences in type of staff; relationships between nurse staffing levels and quality of care; and an explanation that appropriate staffing levels vary based on resident case mix;

2. links to state websites with information on state certification programs and inspection reports, information to help consumers interpret these reports, and the home's correction plan or other response to such reports;

3. the standardized complaint form (see below), including information on how to file a complaint with the state agency and state long-term care ombudsman;

4. the number, type, severity, and outcome of substantiated complaints against a nursing home;

5. the number of adjudicated instances of criminal violations by a nursing home or its employees that were committed inside the facility involving abuse, neglect, exploitation, criminal sexual abuse, or other crimes resulting in serious bodily injury;

6. the number of civil monetary penalties levied against a nursing home, or its employees or contractors; and

7. a consumer rights information page.

CMS Five-Star Quality Rating System Study

In an attempt to make the Nursing Home Compare website more user friendly, CMS added a new “five star” quality rating system in 2008. Each nursing home is rated on a scale of one to five stars based on three components: health inspection results, quality measures, and staffing levels. Each home also receives an overall quality rating.

PPACA requires the U.S. Comptroller General to study the system including its implementation, any problems associated with the system or its implementation, and suggested improvements. The study results must be reported to Congress by March 23, 2012.

State Nursing Home Websites

States must have a comprehensive website where consumers can find information about local nursing homes, including inspection and complaint reports. Connecticut's long-term care website can be found at http://www.ct.gov/longtermcare/site/default.asp.

Reporting Requirements

Nursing homes must separately report to CMS expenditures for wages and benefits for direct care staff, including registered nurses (RN), licensed practical nurses (LPN), certified nurse assistants (CNA), and other medical and therapy staff. CMS must modify its cost reports to reflect these changes by March 23, 2011; facilities will begin submitting the revised cost reports starting March 23, 2012.

Homes must also, starting this date, electronically submit to CMS direct care staffing information based on payroll and other verifiable and auditable data in a standardized format. The information must specify (1) the employee category (i.e. RN, LPN, CNA, etc.), (2) resident census data including resident case mix, (3) a regular reporting schedule, (4) employee turnover and tenure, and (5) the hours of care per resident per day by employee category.

Consumer Complaints

No later than March 23, 2011, the HHS secretary must develop a standardized nursing home complaint form for use with state agencies and state long-term care ombudsman programs. States must make the form available upon request to a nursing home resident or any person acting on his or her behalf. States must also establish a complaint resolution process that includes procedures for (1) accurately tracking complaints, (2) notifying residents of the receipt of a complaint, (3) determining the likely severity of a complaint, and (4) the investigation of a complaint. It must also include investigation and notification deadlines.

Civil Penalties

Starting March 23, 2011, any Medicare- or Medicaid-certified nursing home that self-reports and corrects a deficiency within 10 calendar days after a civil monetary penalty is imposed may have their penalty reduced by half. Such a reduction is prohibited if the penalty is imposed (1) on a nursing home that already had a penalty reduced in the preceding year, (2) for a deficiency resulting in a pattern of harm or widespread harm, or (3) for a deficiency that immediately jeopardizes residents' health and safety or results in a resident's death.

The HHS secretary must adopt regulations that provide nursing homes the opportunity to participate in an independent informal dispute resolution process within 30 days of the imposition of a civil penalty. Additional per-day penalties cannot be issued against the home while it is undergoing the dispute resolution process. The secretary may collect the penalty and place it an escrow account prior to completion of the dispute resolution process. If the home wins the appeal, the penalties collected plus interest are returned. If the home loses the appeal, a portion of the penalty may be used to support activities that benefit residents such as relocation assistance for residents whose nursing home closes, and facility and quality improvement initiatives.

Nursing Home Closures

Starting March 23, 2011, any nursing home intending to close must provide at least 60 days written notice to the HHS secretary, the state long-term care ombudsman, and its residents and their legal representatives or responsible parties. New residents cannot be admitted into the home on or after the notification date. The written notice must include a relocation plan for residents by a specified date approved by the state. The state must ensure all residents have been successfully relocated to the most appropriate facility or alternative home and community based setting before the nursing home closes. A nursing home administrator who fails to comply with this requirement will receive a civil penalty of up to $100,000 and any other penalty prescribed by law and may be excluded from participating in any federal health care program.

Connecticut law requires a nursing home intending to close to first apply to the Department of Social Services (DSS) and receive a certificate of need (CON). The home must submit a letter of intent to DSS at least 10 days before submitting the CON application, The nursing home must also notify the long-term care ombudsman and its residents and their guardians and other known responsible parties. The DSS commissioner must hold a public hearing at the nursing home within 30 days of receiving its letter of intent to close. The nursing home cannot close until the hearing is held and DSS approves its request (CGS 17b-352).

Dementia Management and Abuse Prevention Training

Starting March 23, 2011, Medicare- and Medicaid- certified nursing homes must provide initial and ongoing training in dementia management and patient abuse prevention to its nurse's aides. A nurse's aide is a person providing nursing or nursing-related services to nursing home residents who is not a licensed health professional, registered dietician, or volunteer.

Connecticut law already requires nursing homes with an Alzheimer's special care unit or program to annually provide dementia management training to (1) all direct care staff (licensed, un-licensed, registered, and un-registered) and (2) nurse's aides who provide direct patient care (CGS 19a-562a).

ADDITIONAL FUNDING FOR AGING AND DISABILITY RESOURCE CENTERS (ADRC)

ADRCs provide consumers with long-term care information and referral services through a single access point. One commonly used ADRC model is the single point of entry system, which provides information, referral, assessment, and eligibility screening for individuals seeking long-term care services. The goal of SPE is to promote consumer choice of long-term care options by allowing an individual to obtain standardized information on long-term care services from an SPE agency.

PPACA appropriates $10 million annually from 2010 to 2014 for continued funding of ADRCs that were implemented with federal Administration on Aging grants.

Connecticut currently has three federally funded ADRCs, one each in the south central, western, and north central regions. Each center, called Community Choices, is a collaboration between the region's local area agency on aging and independent living center.

ELDER JUSTICE ACT

PPACA includes an “Elder Justice Act,” which contains several initiatives and federal grants to help prevent and eliminate elder abuse, neglect, and exploitation. Unless otherwise noted, grant applications and deadlines have yet to be determined by the HHS secretary.

Federal Oversight Bodies

PPACA establishes an Elder Justice Coordinating Council within HHS consisting of the HHS Secretary, Attorney General, and the heads of each federal agency dealing with elder abuse, neglect, and exploitation. The council must make recommendations to the HHS secretary on how to coordinate the work of these different agencies and report biennially to the U.S. Senate Finance Committee, and the U.S. House Committees on Energy and Commerce and Ways and Means.

The law also creates an Advisory Board on Elder Abuse, Neglect, and Exploitation to (1) create short- and long-term multidisciplinary strategic plans to develop the elder justice field and (2) make recommendations to the Elder Justice Coordinating Council. The board will consist of 27 members appointed by the HHS secretary with expertise and experience in the prevention, treatment, detection, intervention, and prosecution of elder abuse, neglect and exploitation. The board must annually report to the (1) Elder Justice Coordinating Council, (2) the U.S. Senate Finance Committee, and (3) the U.S. House Committees on Energy and Commerce and Ways and Means.

Elder Abuse, Neglect, and Exploitation Forensic Centers

The HHS Secretary, in consultation with the Attorney General, must award grants to eligible entities (as defined by the secretary) to establish and operate stationary and mobile forensic centers, develop forensic expertise, and provide services related to elder abuse, neglect, and exploitation.

A grant recipient must use the funds to help determine whether abuse, neglect, or exploitation occurred and if a crime was committed. It must also conduct research to describe and provide information on forensic markers and methodologies for determining how health, human services, and legal professionals should intervene and report such cases to law enforcement agencies.

Grants must also be used to develop forensic expertise in elder abuse, neglect, and exploitation in order to provide (1) medical and forensic evaluation, (2) therapeutic intervention, (3) victim support and advocacy, (3) case review and tracking, and (4) evidence collection.

Long-Term Care Enhancement

PPACA requires the HHS and Labor secretaries to provide the following incentives for individuals to train, seek, and maintain employment as direct long-term care workers.

Long-Term Care Staffing. The HHS secretary must award grants to eligible entities (as defined by the secretary) who offer direct care employees or people receiving community-based long-term care programs for continuing training and tiered certification based on observed clinical practices and the amount of time spent providing direct care. Grants must be used to provide increased wages, benefits, or bonuses to employees who receive certification under these programs.

Improved Management Practices. The HHS secretary must also make grants available to eligible entities to provide training and technical assistance on management practices demonstrated to promote direct care employee retention. The secretary must develop accountability measures to ensure the grants benefit direct care workers and increase the stability of the long-term care workforce.

Electronic Health Records (EHR). The HHS secretary must provide grants to long-term care facilities to offset costs related to purchasing, leasing, developing, and implementing certified EHR technology designed to improve patient safety and reduce adverse events and health care complications resulting from medication errors. Grants may be used for equipment purchases and upgrades and staff training and education.

The secretary must also adopt standards for the electronic exchange of clinical data by long-term care facilities. By 2020, the secretary must have procedures in place to accept voluntary electronic clinical data from long-term care facilities.

Adult Protective Services

PPACA provides dedicated federal funding through 2014 for state and local adult protective services programs that investigate reports of elderly abuse, neglect, and exploitation. It also establishes a demonstration grant program to help state and local governments test training modules and methodologies to detect or prevent elder abuse and financial exploitation. States must apply to the HHS secretary to participate in the demonstration, which is funded through 2014. (The Department of Social Services administers Connecticut's Protective Services for the Elderly program.)

Long-Term Care Ombudsman Programs

The HHS secretary must award grants to eligible entities (as defined by the secretary) with relevant experience and expertise in (1) abuse and neglect in long-term care facilities or (2) state long-term care ombudsman programs. Grants must be used to improve the capacity of state ombudsman programs to respond to and resolve elderly abuse and neglect complaints. They may also be used to conduct pilot programs with state or local ombudsman programs.

The secretary must also establish programs to provide and improve ombudsman training regarding elder abuse, neglect, and exploitation for national organizations and state long-term care ombudsman programs.

Evaluations of Elder Justice Programs

PPACA authorizes eligible entities (as defined by the HHS secretary) to apply for federal grants to evaluate each above program authorized under the Elder Justice Act, except for the EHR technology grant program. Grant recipients must report, by a date determined by the HHS secretary, their evaluation results and recommendations to the HHS secretary, U.S. Senate Finance Committee, and the U.S. House Committees on Energy and Commerce and Ways and Means.

National Training Institute For Surveyors

PPACA establishes a new National Training Institute For Surveyors. The institute must provide and improve training for state and federal surveyors regarding investigations of abuse, neglect, and misappropriation of property in Medicaid- or Medicare- funded programs and long-term care facilities. The institute must (1) assess state agencies- use of specialized surveyors, (2) evaluate how surveyors' competencies may be improved, (3) provide a national training and technical assistance program, (4) develop and best practices information, (5) assess the performance of state complaint intake systems, and (6) provide a national 24 hours per day seven days per week back-up system to state complaint intake systems, and (7) conduct a national study of state costs of conducting complaint investigations of nursing homes.

The law also allows state survey agencies to apply to HHS to receive grants to design and implement complaint investigation systems that promptly prioritizing complaints, ensure effective and timely responses, and provide optimum collaboration between local authorities, consumers, and providers. Grants are available from 2011 through 2014.

Reporting of Crimes Occurring in Federally Funded Long-Term Care Facilities

PPACA now requires certain long-term care facility professionals to report any reasonable suspicion of a crime against facility residents or service recipients to the HHS secretary and local law enforcement agencies. The law applies to owners, operators, employees, managers, agents, or contractors of a long-term care facility receiving at least $10,000 in federal funds. Reports must be made within two hours of suspecting serious bodily injury or within 24 hours if no bodily injury occurs.

A violation of this reporting requirement will result in a civil penalty of up to $200,000 or, if the violation results in increased harm to the victim, up to $300,000. The HHS secretary may also prohibit the individual from participating in any federal health program. If an individual is excluded from participating, his or her employer becomes ineligible to receive Elder Justice Act funds during that period.

In addition, the law prohibits a long-term care facility from retaliating against an employee who files a complaint against or reports a facility that violates reporting requirements. Facilities who do so will face a civil penalty of up to $200,000 and possible exclusion from participation in federal health programs for two years. Facilities must also conspicuously post a notice developed by the HHS secretary, specifying employee rights regarding these reporting requirements.

National Nurse's Aide Registry

PPACA requires the HHS secretary, in consultation with public and private interested parties, to conduct a study on establishing a national nurse's aide registry. The study must evaluate (1) who the registry should include, (2) how it would comply with state and federal privacy laws, (3) how data would be collected, (4) who would have data access, (5) how it would provide individual information on federal and state law violations, and (6) how it would coordinate with the national background check program (see below) and state registries. (Connecticut's registry can be found here.)

In conducting the study, the secretary must consider the findings and conclusions of relevant reports and resources and submit final recommendations and findings by September 23, 2011 to the (1) Elder Justice Coordinating Council, (2) the U.S. Senate Finance Committee, and (3) the U.S. House Committees on Energy and Commerce and Ways and Means.

FEDERAL DEMONSTRATION PROGRAMS

National Background Check Program for Direct Patient Access Employees

PPACA requires the HHS Secretary to establish a three-year national background check demonstration program to identify efficient, effective, and economical procedures for long-term care facilities and providers to conduct background checks on a statewide basis on all prospective direct patient access employees. These facilities and providers include nursing homes, home health agencies, hospice care providers, long-term care hospitals, personal care service providers, adult day and residential care providers, assisted living facilities, intermediate facilities for the mentally retarded, and other state-specified long-term care facilities and providers.

Participating states must ensure that the background checks include checks of (1) state and federal criminal history records, (2) records of any proceedings that may contain disqualifying information (such as licensing and disciplinary boards and state Medicaid fraud control units), (3) abuse and neglect registries of all known states in which the employee lived, and (4) Federal Bureau of Investigation fingerprints.

States must describe and test methods to reduce duplicative fingerprinting, including developing “rap back” capability. This requires state law enforcement departments to immediately inform the state of any criminal offenses by the employee that occur after the pre-employment background check. The state must then immediately notify the provider.

States must (1) designate a single agency responsible for program oversight, (2) conduct the screening and criminal history background checks, (3) monitor provider compliance, (4) establish privacy and security safeguards and an independent appeals process, and (5) provide for provisional employment of up to 60 days for employees and direct on-site supervision of employees pending completion of an appeals process.

To participate in the program, states must apply to and receive approval from CMS. Each state must guarantee that it has non-federal funds available to cover a portion of the program costs. Once approved, states will receive a federal match three times the state amount, not exceeding $3 million over the three year demonstration period. The Connecticut Department of Health and Human Services applied for the grant program in August 2010 and is awaiting federal approval. Grants will be awarded by September 30, 2010 and funding will be available through 2013.

National Independent Monitor Demonstration Program

By March 23, 2011, the HHS secretary must begin a two-year voluntary demonstration program to develop, test, and implement an independent monitor program to oversee interstate and large intrastate nursing home chains.

Nursing home chains must apply to participate in the program and provide evidence that some of its facilities have serious safety and quality of care problems or a history of such deficiencies. The independent monitor will (1) analyze the nursing home chain's compliance, (2) conduct sustained oversight, (3) analyze the chain's management and operation, and (4) report its findings to the chain. The chain will have 10 days from the receipt of the monitor's findings to submit a corrective action plan or the reasons why it will not take action. Within ten days of receiving the corrective action plan, the monitor will finalize its recommendations and submit its report to the chain, HHS secretary, and the state in which the chain is located. The HHS secretary must submit a report to Congress within 180 days of the demonstration's completion, including recommendations for creating a permanent program. The nursing home chain must pay for a portion of the independent monitor's cost.

National Demonstration Projects on Culture Change and Use of Information Technology in Nursing Homes

No later than March 23, 2011, the HHS secretary must conduct two separate three-year demonstration programs for nursing homes to develop best practices in (1) culture change and (2) the use of information technology to improve care. Both demonstration programs must consider the needs of residents with cognitive impairment, including dementia. Participating nursing homes will receive one or more federal grants to develop these best practices. The HHS secretary must report to Congress on each program nine months after its completion.

RESOURCES

American Association of Homes and Services for the Aging, Health Reform and Aging Services Hub: http://www.aahsa.org/HealthReformHub.aspx

Connecticut Department of Public Health Nurse's Aide Registry:

http://www.ct.gov/dph/cwp/view.asp?a=3121&q=389390

Connecticut Health Care Reform Cabinet:

http://www.ct.gov/dph/cwp/view.asp?a=3902&q=459108&dphNav_GID=1981&dphNav=|

HealthCare.gov, a federal website run by HHS to provide information on the new law: http://www.healthcare.gov/

Kaiser Family Foundation Health Reform Gateway: http://healthreform.kff.org/

National Conference of State Legislatures:

http://www.ncsl.org/Default.aspx?TabID=160&tabs=831,139,1156#1156

ND:ts