Volume XXXI, Number 7
July 2016

HHS Office of Civil Rights Releases Guidance and Resources for Long Term Care Facilities on Using the MDS to Facilitate Opportunities to Live in the Most Integrated Setting

The U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) has issued new guidance to assist long term care facilities in complying with their civil rights responsibilities and obligations under regulations by the HHS Centers for Medicare & Medicaid Services that require facilities which are Medicare and/or Medicaid-certified to ensure their residents receive services in the most integrated setting appropriate to their needs.

Long term care facilities are responsible for making referrals to appropriate community assessment agencies in order to help individuals successfully transition into the community.   

OCR is responsible for enforcing Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (ADA), as interpreted by the U.S. Supreme Court in Olmstead v. L.C. Under Section 504 and the ADA, long term care facilities that receive Federal financial assistance cannot discriminate against individuals based on disability. The U.S. Supreme Court  further clarified in its Olmstead v. L.C. decision that discrimination includes unnecessary segregation of persons with disabilities and continued placement in an inpatient facility when the resident could live in a more integrated setting. 

OCR’s announcement states that in order to assess placement needs among residents, CMS regulations mandate that long term care facilities routinely administer the Minimum Data Set (MDS) for all residents in a Medicare and/or Medicaid-certified long term care facility. Section Q of the MDS has questions designed to help assess residents’ interests in returning to the community and in turn to help facilities and staff better identify and assist residents in exploring those opportunities, with the support of Local Contact Agencies and other community-based organizations. As such, Section Q also assists the state in meeting its non-discrimination requirements.

Through analysis of MDS data and collecting information from a large sample of facilities, OCR found many long term care facilities are misinterpreting the requirements of the MDS or inadequately administering the MDS because they are not referring residents who are interested in living in the community to appropriate referral sources.

This new guidance provides a series of recommendations for steps that long term care facilities can take to ensure the MDS is properly used to facilitate compliance with Section 504 and to avoid discriminatory practices towards residents. These steps include:

  • Establish strong relationships with the Local Contact Agency, a local community organization responsible for providing counseling to nursing center residents on community support options;
  • Properly administer Section Q of the MDS “to ensure that all individuals have the opportunity to learn about home and community based services and have an opportunity to receive long-term care in the least restrictive setting possible”;
  • Update facility policies and procedures to comply with OCR guidance and provide periodic training to all staff involved in the MDS assessment on Section Q; and
  • Review available resources on administration of the MDS.

Click here to read the guidance.

To learn more, visit the HHS Office of Civil Rights.

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