CMS new conditions of participation: New behavioral health mandates

The Centers for Medicare and Medicaid Services (CMS) has created significant new mandates for Skilled Nursing Facilities (Facilities) in the new conditions of participation (COPs). For the first time, Facilities will be required to focus on the programs and care needed to maximize the psychosocial well-being of all residents. The new COPs have a new numbering system, and all references in this discussion refer to the new section numbers.

An entirely new set of requirements is contained at 42 CFR Section 483.40 for Behavioral Health Services. Facilities are required to have sufficient staff with the skill sets necessary to provide the services to assure “the highest practicable physical, mental and psychosocial well-being of each resident.” Facilities must conduct an assessment of the mental health of each resident. This will require many facilities to supplement their current staff, and implement procedures to assess and address the psychosocial needs of each resident.

The new regulations require Facilities to implement non-pharmacological interventions, such that each resident displaying or diagnosed with a mental disorder or psychosocial adjustment difficulty, or a history of trauma or post-traumatic stress disorder “receives appropriate treatment and services to correct the assessed problem.” While many Facilities address the psychosocial needs of residents, the current COPs do not provide standards against which surveyors are mandated to assess compliance by Facilities. Facilities are required to provide rehabilitative services for mental disorders and intellectual disability, which must be reflected in the resident’s comprehensive plan of care.

CMS has stated that it recognizes that the significant changes mandated by the COPs cannot be implemented immediately in their entirety. The new behavioral health COPs will generally be implemented in Phase 2 (effective date Nov. 28, 2017) with the following exceptions: requirements for comprehensive assessment and medically related social services are implemented in Phase 1 (effective date Nov. 28, 2016); and the requirements related to residents with a history of trauma and/or post-traumatic stress disorder are implemented in Phase 3 (effective Nov. 28, 2018).

Many Facilities find it challenging to find geriatric psychiatrists, psychologists and social workers to provide the desired mental health and psychosocial services under existing COPs. The dramatically increased mandates of the new COPs make it imperative for Facilities to begin to develop their assessment and care procedures to provide the mandated services, as well as to develop internal or external resources with the mandated skill sets. As these are completely new requirements, Facilities are also well advised to begin implementation of these services long before the effective dates in order to work out any issues that arise when implementing any new systems of care.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by: Andrew P. Tecson, President and Kimberly T. Boike, Principal