In its May 3, 2016 S&C letter, CMS clarifies the federal requirements for providing services to justice involved individuals to ensure that the quality of care provided protects patient rights and ensures the safety of all individuals within the facility. The letter outlines information related to skilled nursing providers’ ability to qualify for payment from Medicare or Medicaid while maintaining compliance with the Requirements for Participation/CoPs.
States are considering the health care system’s role in services for individuals who are incarcerated or those who have been discharged as part of a compassionate release program or require care than cannot be provided in prisons for chronic conditions. CMS firmly reminds the States that the rights of justice-involved individuals are expected to be the same as any other resident admitted to the nursing home, including with resident choice, dignity and quality of care. This means:
- The provider needs to maintain control over the conditions under which a person receives care, without the Department of Corrections or Parole Board having a say.
- The treatment decisions for the resident would need to be based solely on things like the resident assessment and the advice of the medical team responsible for care, not what outside representatives think would be most fitting.
- The facility should only admit residents if it has sufficient staff to provide the necessary care, just as it would for any resident.
- The provider needs to ensure that safety and quality of life are maintained for all residents and staff if the decision is made to admit a justice-involved individual.
The key takeaway from this S&C letter is that the federal requirements for participation must be met, no matter who the person being admitted is, and if a facility cannot maintain compliance due to the supervision terms of law enforcement, then it should reconsider accepting the individual. Specifically, CMS states that under these requirements, a nursing home cannot incorporate into care plans restrictions that violate resident rights, and the facilities cannot serve as an agent of law enforcement by enforcing supervisory conditions. It also notes that facilities cannot impose conditions that would limit resident rights in areas such as:
- Right to be free from physical or chemical restraints
- Freedom to choose activities, schedules, and make health decisions consistent with their wishes
- Ability to maintain personal privacy and confidentiality, including the facility not monitoring mail, phone calls, or sharing clinical record information with the DOC/parole office
- Right to deny/withdraw consent at any time
- Freedom from abuse, corporal punishment and involuntary seclusion
- Right to choose their own visitors
One can understand how the terms that law enforcement may want to impose would clash with the established rights of nursing home and other healthcare facility residents. CMS provides several example scenarios of where a facility may or may not be certified by Medicare/Medicaid depending on the conditions.
Read the May 3, 2016 CMS S&C letter “Guidance to Surveyors on Federal Requirements for Providing Services to Justice Involved Individuals” (Ref: S&: 16-21-ALL).
