Non-Acute Care Track

Regulatory Pitfalls in Post-acute Care Design, Construction and Operation

Presenters:

Adam Gill, JD, B.Arch., AIA, Duane Morris LLP

Amy McCracken, JD, BSN, Duane Morris LLP

DESIGN

What is Post-Acute Care?

• Post-acute care (PAC) is usually provided after a

stay in a hospital, but may be instead of a hospital

stay.

• PAC is typically longer in duration than acute care.

• PAC includes rehabilitation or palliative services,

either at home or in a facility

Types of PAC Providers

• IRF – inpatient rehabilitation facility

• SNF – skilled nursing facility (Medicare)

• NF – nursing facility (Medicaid)

• ICF/IID – intermediate care facilities for

individuals with intellectual disabilities

• Home Health Services

• Hospice

Sources of Regulations

• Federal certification to participate in Medicare

and/or Medicaid

• State licensure (regardless of source of payment)

• Local building codes

• Certificate of Need

Recent Changes in Federal Regs

• On October 4, 2016, CMS issued reform of

requirements for SNFs

– New or modified SNFs can have no more than

2 residents per bedroom

– New SNFs must have a bathroom with at least

a commode and sink in each room

– Key non-construction changes will be

addressed later

Recent Changes in Federal Regs

• On September 28, 2016, CMS issued emergency

preparedness regulations

– Inpatient PACs must comply with NFPA 101

2012 (must implement by November 15, 2017)

• Sprinkler waiver has been eliminated

• FSES - Fire Safety Evaluation System

Culture Change

• CMS is focusing on person-centered and person-

directed care. Core values are choice, dignity, respect,

self-determination and purposeful living.

• Residents have a right to a “comfortable and homelike

environment”

Culture Change Initiatives

• Dining options

• Homelike design and décor

• Spas, fitness rooms, gardens, and other

amenities

• Community integration

• Flexible space

CONSTRUCTION

Construction

• Contracts

• Certificate of Need - CON

• Building Regulations / Codes

Contracts

• Why do you need / want a written contract

• Public Projects

• Private Projects

– Custom Contracts

– Standard Forms

• AIA, ConsensusDocs

Contracts

• Owner / Architect

– AIA Standard Form B101, B103, B104

• Owner / Contractor

– AIA Standard Form A101, A102, A107

– General Conditions

• Owner / Construction Manager

– AIA Standard Form A132

Certificate of Need

Arose as a result of Federal statute

Health Planning Resource Development Act of 1974

Three Goals

• Control or regulate health care costs

• Coordinate services and construction of facilities

• Prevent duplicative facilities

Certificate of Need States

Certificate of Need - Services

Source: AHPA, 2011.

When is CON Needed

• Type of Projects

– New / expanding / modernizing / discontinuing

• Type of Service

– What is the facility

• Process

CON Can Affect Design

• Rejection by the state

• Review time

• Building Program

Building Regulations

Three levels of code compliance

• Federal

• State

– FGI Design Guidelines

• Local building codes

– International Building Code

Federal / CMS – NFPA 101

National Fire Protection Association

• Over 350 model codes relating to fire, electrical and

related hazards

NFPA 101 is the “Life Safety Code”

• Revised every 3 years

Other NFPA codes apply – based on local adoption

Federal / CMS – NFPA 101

CMS issued final rule on May 4, 2106 adopting NFPA 101 –

2012

Applies to long-term care facilities

• Chapters 18 and 19

Anticipated for a long time

• Expected adoption in 2013 or 2014

NFPA 101 – 2012 Changes

Significant changes

• Based on “culture change” approach

• Change to contiguous uses

• Many changes are not surprising

• CMS granted waivers since 2012

NFPA 101 – 2012 Changes

Health Care Occupancies (Ch. 18 and 19)

• Egress route – corridors

• Equipment in corridors

• Fixed furniture in corridors

• Sleeping suite

– Egress

– Size

• Max. travel distance – non-sleeping suite

NFPA 101 – 2012 Changes

Changes acknowledge “culture change”

• Furniture in corridors

• Cooking facilities for residents

• Cooking facilities open to the corridor

• Fireplaces

– Direct vent gas

– Solid fuel

NFPA 101 – 2012 Changes

Significant number of changes in the 2003, 2006,

2009 editions of NFPA 101

• Wide stairs – 2006 ed.

• Sliding doors – 2006 ed.

• Power doors – 2009 ed.

• Locks and egress – 2009 ed.

• Delayed egress – 2009 ed.

NFPA 101 – 2012 Changes

Existing facilities

• Floor / wall penetrations

• Egress

• Dead end corridors

• Fire sprinklers

Fire Safety Evaluation System (FSES)

• Directive dated December 16, 2016

State Requirements

FGI Guidelines for Design and Construction of

Health Care Facilities

• Not life safety issues

• Minimum requirements for health care buildings

– Types of spaces

– Not minimum square footage

• Ventilation

• Lighting

FGI Adoption States

Other Construction Pitfalls

• Who is the owner of the property / facility /

property

• Payment

• Mechanics Liens

• HIPAA

• False Claims

OPERATION

Operational Regulations Update

• Implements recent statutory changes

• Social Security Act – allows CMS to establish any

additional requirements relating to health, safety and

well-being of nursing home residents

• IMPACT Act – discharge planning and resident

treatment preferences

• Affordable Care Act – compliance and ethics

programs, QAPI, dementia and abuse prevention

training, and reporting of suspicion of a crime

Purpose

Align with Current HHS Initiatives

• Reducing unnecessary hospital readmissions

• Reducing the incidences of healthcare acquired

infections

• Improving behavioral healthcare (an area where

culture change has positive outcomes!)

• Reducing the use of unnecessary psychotropic

medications

Economic Impact

• CMS estimates the total projected cost of its

proposed rule at $729,495,614 for the first year.

– Approximately $46,491 per facility

• CMS estimates cost for 2nd year and on at

$638,386,760 per year

– Approximately $40,685 per facility

Phased Implementation

Certification considerations

• Beds may be certified as Medicare, Medicaid, both or

neither

• Bed certification type may determine room/bed

layout

• Cluster Medicare/Medicaid beds together

Arbitration Update

• CMS’ new regulations eliminated pre-dispute

arbitration agreements; allowed post-dispute

arbitration agreements

• Federal arbitration act favors arbitration

• American Health Care Association v. Burwell,

(USDC N. Dist. Miss., Nov. 7, 2016)