Academy Comments to CMS re Revised Long Term Care Regulations

September 14, 2015

Andrew Slavitt, MBA
Acting Administrator, Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS-1614-P
P.O. Box 8010
Baltimore, MD 21244-8010

RE: Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities

The Academy of Nutrition and Dietetics (the "Academy") appreciates the opportunity to submit comments to the Centers for Medicare & Medicaid Services (CMS) regarding its proposed rule of July 16, 2015, "Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care (LTC) Facilities" (the "proposed rule"). Representing over 90,000 registered dietitian nutritionists (RDNs),1 nutrition dietetic technicians, registered (NDTRs),2 and advanced-degree nutritionists, the Academy is the largest association of food and nutrition professionals in the United States committed to improving the nation's health through food and nutrition across the lifecycle. Many of our members work in long-term care facilities (LTC) and provide home and community-based services to ensure the elderly and at-risk populations meet their nutrition needs.

The Academy enthusiastically supports the bulk of the highly resident-focused proposed rule, which aligns with previously submitted recommendations of the Academy and the Pioneer Network. We expect the proposed rule will improve the quality of life and health outcomes for residents of LTC facilities. Noted below are several suggestions for refining and improving the rule, including necessary recommendations to ensure food and nutrition services staff have the competencies needed to perform their duties safely and effectively.

I. Resident Rights (§ 483.10)

This proposed rule encourages a culture change towards a more resident-focused approach towards long term care. The Academy of Nutrition and Dietetics advocates for registered dietitian nutritionists to assess and evaluate the need for nutrition interventions tailored to each person's medical condition, needs, desires and rights.3 "Improving quality of life and quality of care, allowing choices in daily living, and assisting individuals to make informed health care decisions are all major goals of culture change and person-centered care. Involving individuals in choices about food and dining such as food selections, dining locations, and meal times can help them maintain a sense of dignity, control, and autonomy."4 We applaud CMS for proposing to revise its regulations in accordance with this resident-focused philosophy.

A. Special Foods and Meals (§ 483.11(d)(6)(ii)(L)(1) and (2))

The Academy supports CMS's proposal "to clarify that the facility may not charge for special food and meals ordered for a resident by a physician, physician assistant, nurse practitioner, clinical nurse specialist, dietitian or other clinically qualified nutrition professional." Client satisfaction is critical; this is their home and supports the residentcentered concept of care. In addition to many of our members believing it is their duty to provide residents with everything they need during their stay, our members report that client satisfaction improves oral intake, nutritional status, quality of life and well-being and is likely to result in fewer hospitalizations.

Comparable and reasonable substitutions, as determined by the RDN, should be permitted. The Academy seeks confirmation that the special food and meals purchased for a resident must be in alignment with a required specific diet order as a therapeutic diet for the items not to be charged. In addition, we seek guidance as to whether facilities may require residents or their families to provide their own special supplements or functional foods if the facilities do not have them in their formulary.

B. Right to Refuse Treatment (§ 483.10(b)(4))

It is the position of the Academy of Nutrition and Dietetics that individuals have the right to request or refuse nutrition and hydration as medical treatment. Registered dietitian nutritionists should work collaboratively as part of the interdisciplinary team team to make recommendations on providing, withdrawing, or withholding nutrition and hydration in individual cases and serve as active members of institutional ethics committees. RDNs have an active role in determining the nutrition and hydration requirements for individuals throughout the life span. When individuals choose to forgo any type of nutrition and hydration (natural or artificial), or when individuals lack decision-making capacity and others must decide whether or not to provide artificial nutrition and hydration, RDNs have a professional role in the ethical deliberation around those decisions.5

"RDNs' understanding of nutrition and hydration within the context of nutritional requirements and cultural, social, psychological, and spiritual needs provide an essential basis for ethical deliberation. RDNs, as health care team members, have the responsibility to promote use of advanced directives. RDNs promote the rights of the individual and help the health care team implement appropriate therapy."6 Other staff members must ensure they are meeting the nutritional and hydration needs of residents and are following through on existing systems that accurately document whether a resident has refused treatment. Once an RDN has engaged the resident, his or her family, and other staff in discussions about the resident's decision to refuse nutrition and/or hydration, it is essential to sufficiently document any resident's refusal of treatment of adequate meals, snacks, or fluids to protect the resident and caregivers.

II. Transitions of Care (§ 483.15)

Registered dietitian nutritionists play a critical role in transitions of care for individuals for whom nutrition is a particularly essential part of the plan of care. Undernutrition and/or poor diet compliance may contribute to negative outcomes in residents or patients with pneumonia, acute myocardial infarction and heart failure and increase the likelihood of hospital readmission.7,8,9 Collaboration among health care professionals — including RDNs — is critical to successful post-acute transitional care plan development and implementation.

We agree with CMS that the "type of documentation (that) is presently required for hospitals with which the facility has a transfer agreement...is important regardless of the setting to which the resident is being transferred or discharged," and we are pleased to see CMS more broadly incorporate these communications into the transitions of care process for other facilities, "whether it is an acute care hospital, a LTC hospital, a psychiatric facility, another LTC facility, a hospice, home health agency, or another community-based provider or practitioner." These proposed requirements to enhance communication between providers should reduce risks of complications and adverse events for residents. We support this information being provided (in non-emergency transitions) as soon as the transition of care is determined and encourage CMS to require it sufficiently prior to discharge to enable the LTC facility to determine whether the facility can meet the patient's/resident's needs.

A. Required Data Elements Should Include Nutrition Care Components

The Academy encourages CMS to include specific data elements in transitions of care requirements, including:

  • Therapeutic diet order and oral nutrition supplement order history, including present use/status;
  • Enteral and total parenteral nutrition orders;
  • Oral intake history and acceptance of diet;
  • Food allergies and/or intolerances;
  • Food preferences, special diet restrictions, and other specific individualized needs to ensure accommodation is possible;
  • Diet education the patient/resident or family has received in the past;
  • Ability to swallow and/or chew and conditions of teeth and any need for texture modifications;
  • Pertinent height and weight history and any pertinent trends;
  • Progress notes completed during hospitalization;
  • Skin integrity, such as the presence and history of pressure ulcers and wounds;
  • Lab levels, including CRP level; and
  • Those in value sets in the National Library of Medicine's Value Set Authority Center created by the steward "AND."

The Academy appreciates CMS's recognition of the value of utilizing certified Health IT to improve transitions of care and notes that nutrition data will now be included in nine of the thirteen "transitions of care" documents between facilities – once the HL7 Consolidated Clinical Document Architecture (C-CDA) Release 2 is put into operation. This development will ensure (when implemented) that patients on a modified diet will have that data arrive at the hospital or other connected facility upon transition and admission. The Academy has also worked to ensure nutrition is included in multiple health IT standards, which are suggested for the 2015 Certification and Standards Criteria (supporting Stage 3 Meaningful Use).

B. Suggested Improvements in Transition and Discharge Planning

The Academy respectfully suggests a number of additional strategies for improving transition and discharge planning to help prevent hospital readmissions and improve quality of life across the continuum of care. At the outset, Medical Nutrition Therapy (MNT) and other nutrition education should not just include the patient or resident, but the family and/or caregiver as well. Too often, nutrition education at discharge is limited to providing the patient/resident a sheet from the diet manual. Discharge planning should include telephonic monitoring and follow-up care, including follow-up with community-based services, such as Meals on Wheels, local senior centers, and home care planning (e.g., ability to procure, cook, and eat food and who can assist with these tasks if needed). MNT must be provided that meets clients' cultural and food preferences and budget constraints and ensures clients have the skills and tools to monitor their own progress, such as scales to weigh themselves and glucometers.

After developing a comprehensive nutritional care plan, RDNs should educate the food and nutrition service staff and the nursing staff on proper implementation, which will assist residents in understanding their nutritional needs and facilitate effective discharge. Regular access to medical records with dietary and nutrition information is also essential.

C. Interdisciplinary Team Staffing (§ 483.21(b)(2)(ii))

The Academy supports the Position Statement on Interdisciplinary Team Training in Geriatrics: An Essential Component of Quality Health Care for Older Adults providing that, "Interdisciplinary team training (IDT) is an important component of ensuring quality geriatric care delivery, which can be complex and time intensive, requiring coordination of many medical, psychosocial, and therapeutic interventions and professionals."10 This position statement recognizes that, "Other benefits of team care include enhanced communication among healthcare providers, greater patient safety, better care of common chronic illnesses, better medication adherence, fewer adverse drug reactions, preservation of function, and fewer hospital readmissions."11 Specifically, the position statement found that, "(i)nterdisciplinary care has...been demonstrated to be useful in...skilled nursing facilities."12,13

Thus, the Academy strongly supports CMS's proposal to explicitly require "an appropriate member of the food and nutrition services staff... be a part of the (interdisciplinary team, or) IDT." As CMS concluded, "(i)ncluding these critical team members in the IDT and the care planning process would ensure that the individual needs of a particular resident are being assessed and appropriately addressed." We agree that, "nutrition is a fundamental part of a resident's overall health and well-being, (and thus,) it is important that a member of the food and nutrition services staff be knowledgeable of the resident's needs and preferences to achieve their maximum practicable well-being."

In many facilities, RDNs are already improving the quality of care by serving as members of the IDT. The RDN is the most experienced and effective member of the food and nutrition services staff with the ability to provide a comprehensive scope of nutrition services using the Nutrition Care Process in an effort to meet residents' goals and prevent hospital readmissions, and would thus provide the most value as a member of the IDT. RDNs conduct nutrition assessments obtaining residents' food and fluid intake, food preferences, weight status, skin integrity, lab status, and other measures. Although other members of the food and nutrition services staff may be able to observe residents and refer those at risk, RDNs are able to monitor the overall nutrition care of each resident as the clinical expert trained in nutrition and are thus the appropriate choice for the IDT if resources are available to ensure they can spend the needed time doing so. It is critical, however, that CMS provide greater clarity as to the qualifications and competencies that would make an individual "an appropriate member of the food and nutrition services staff" to join the IDT when an RDN is not available.

A Nutrition and Dietetics Technician, Registered (NDTR) working under the guidance and direction of an RDN can effectively participate in the care process of the IDT when the RDN is not present. In LTC facilities where an RDN or NDTR is not present on a daily basis, a Certified Dietary Manager (CDM) can play an integral role in relaying information to the RDN and supporting the IDT if the CDM is familiar with residents and competent at obtaining residents' preferences and making sure the facility kitchen can accommodate the preferences. Any food and nutrition services staff member on the IDT should be familiar with the facility's food availability and the food service operations and capabilities. The importance of the staff member's personal knowledge of clients and their needs (including any refusal of therapeutic diets and repeated requests for alternative or substitute menu items) cannot be overstated. CDMs are likely able to represent stable residents who are eating well and are at low nutritional risk. Our members report, however, that uncertified dietary managers without concomitant educational requirements are unlikely to have the necessary competencies to prevent unnecessary dehydration and weight loss.

D. Baseline Care Plan (§ 483.21)

The Academy encourages the Baseline Care Plan to include as many of the data elements in Section II(A) above ("Required Data Elements Should Include Nutrition Care Components") as is practicable within 48 hours of admission. At a minimum, the Baseline Care Plan should list the diet (including texture needs and aspiration risks) ordered, the ability to tolerate and self-feed said diet, any advance directives related to feeding, and any food allergies the resident may have. A member of the food and nutrition services staff should also see the patient within 24-48 hours, recognizing that care plans are frequently modified as residents adjust to new levels of care and nutrition needs change. CDMs may be able to develop some low-risk Baseline Care Plans until the RDN can review and modify when present in the facility. We note that development of a Baseline Care Plan as envisioned and proposed by CMS is likely to require a staffing adjustment and additional clinical coverage, particularly on weekends. Some residents who are admitted on Fridays may be nutritionally compromised until an RDN is present in the facility to order an appropriate nutrition intervention, which may not be possible within the mandated 48-hour window without staffing adjustments.

III. Quality of Care

Consequences of undernutrition include increased mortality, loss of strength, depression, lethargy, immune dysfunction, pressure ulcers, delayed recovery from illness, increased chance of hospital admission, and poor wound healing.14 Older adults are at higher risk for pressure ulcer development due to age, skin frailty, unintended weight loss, and other factors. Although pressure ulcers have multiple causes, poor nutritional status is a contributing factor and is an important aspect of prevention.15 RDNs are skilled and effective at preventing and resolving these complications.

A. Nasogastric Tubes and Assisted Nutrition and Hydration § 483.25(d)(8)

"RDNs and NDTRs may work in collaboration with therapy providers (e.g., speech language pathologists and occupational therapists) and caregivers to implement the plan of care. Texture modifications, thickening liquids, oral nutritional supplements, or self feeding equipment may all be included in a plan of care to help an individual maximize feeding independence when safe to do so. RDNs determine appropriate food choices that follow the dysphagia recommendations and educate the individual and/or caregivers to implement the plan."16

The Academy thus supports the proposed regulatory revisions and encourages ongoing collaboration between speech language pathologists (SLPs) and RDNs to document oral intake and evaluate data and the need for enteral feeding adjustment. SLPs should be involved from day one of a resident's stay to assess capabilities of tolerating foods orally. Adequate caregiver time is essential to encourage restoration of eating skills, and we support weaning residents off enteral feeding as soon as possible. For patients with dementia, familiar, individualized nutrition plans are more likely to promote a better long-term outcome. If possible, the use of hand feeding should be encouraged, as it is one of the few pleasures available to individuals with dementia.17

B. Pressure Ulcers (§ 483.25(d)(4))The role of nutrition and hydration in the development and impaired healing is well-documented, and the National Pressure Ulcer Advisory Panel has established nutritional guidelines for nutrition and hydration for pressure ulcer prevention and treatment in adults.18 A comprehensive nutrition assessment is the most cost-effective and impactful initial intervention for preventing and treating pressure ulcers, including the amount of food and protein consumed, the extent to which residents require assistance eating, and whether fluids are offered and consumed at meals and between meals. Nursing staff and other staff members noting the presence of pressure ulcers should immediately communicate with the RDN to initiate a care plan. Potential challenges will arise if residents exercise their rights to refuse adequate nutrition and hydration or adopt advance directives related to end of life status. Ensuring sufficient flexibility to enable incorporation of new theories and emerging research is also important as regulations and guidance are finalized.

IV. Quality Assurance and Performance Improvement (§ 483.75)

CMS details at length the new Quality Assurance and Performance Improvement (QAPI) requirements and includes recommendations for the utilization of electronic health records, common clinical data sets, and other health IT components to improve care and transitions of care throughout assessments and care plans. The Academy has long been a strong supporter of CMS's QAPI initiatives and we are committed to eliminating burdensome red tape that prioritizes documentation of care over actual provision of care. Performance improvement is critical, because ultimately residents' quality of life is at stake.

Audits and systematized assessments that include collecting and assessing relevant nutritional status parameters (e.g., lab values, weights and weight trends, skin integrity, dysphagia interventions, therapeutic diets, use of nutritional supplements, and meal/fluids intake and tolerance) enable facilities to determine opportunities for improvement. Members report that existing QAPI teams have been both educational for the staff and beneficial for residents, because they require a facility to act in a collaborative and interdisciplinary manner to make necessary improvements.

V. Food and Nutrition Services (§ 483.60)

The Academy strongly supports the improvements in the proposed rule that underscore the importance of nutrition in residents' quality of life and health status.

A. Definition of "Qualified Dietitian" (§ 483.60(a))

The Academy is highly concerned about the proposed changes to the definition of "qualified dietitian," which will weaken professional standards and enable unqualified practitioners without necessary training or skills to oversee LTC facilities' food and nutrition services. Without explaining its rationale, CMS proposes to replace the requirement that one must be either an RDN credentialed with the Commission on Dietetic Registration or be qualified "on the basis of education, training, or experience in identification of dietary needs, planning, and implementation of dietary programs" with a mere requirement that one need only meet state standards for licensure. This proposal expands the ability to become a "clinically qualified nutrition professional" by removing the only consistent government standard defining what it actually means to be "clinically qualified" in LTC facilities.

It is critical that CMS understand that there are multiple states where one can become licensed as either a "dietitian" or a "nutrition professional" without ever having attended an accredited dietetics or nutrition program (as required to provide MNT pursuant to the Social Security Act § 1861(vv)(2)) and without having received any training in food service management, food safety, or other competencies that this proposed rule declares are necessary in a LTC facility. Thus, this proposed change would allow unqualified and incompetent (albeit licensed) practitioners to be able to be "qualified dietitians" simply because some state licensure laws have been weakened to the point where they no longer reflect any "education, training, or experience in identification of dietary needs, planning, and implementation of dietary programs." This is a troubling development the Academy has been working to proactively solve, but which presently present creates significant problems in a number of states. As an example, pending regulations in Florida will not require any food service management training, and one can be licensed in Illinois as a licensed dietitian nutritionist without any relevant clinical nutrition or food service management training.

Anticipated benefits to patient care and associated cost savings can only be realized if CMS retains high standards and qualifications of competency and training for qualified dietitians. State licensure laws in some states set minimum qualifications for licensed dietitians substantially below that calculated to achieve the improved patient outcomes anticipated under this rule, making it necessary that CMS better define "qualified dietitian" to ensure patients' health and safety. Because state licensure merely sets the minimum standard to engage in the practice of dietetics and nutrition (as a "licensed dietitian," "licensed dietitian nutritionist," "licensed nutritionist," or a similar such title), it cannot, by itself, be assumed to indicate the licensee has the training and competencies required to be a "qualified dietitian" under existing federal law and regulation.

Thus, the Academy urges CMS to definitively adopt the definition of "qualified dietitian" in § 482.94(e) ("A qualified dietitian is an individual who meets practice requirements in the State in which he or she practices and is a registered dietitian with the Commission on Dietetic Registration."). Alternatively, the Academy recommends that CMS either retain the existing definition for qualified dietitians in LTC facilities or define "qualified dietitian" consistent with the definition of "registered dietitian or nutrition professional" in §1861(vv)(2) of the Social Security Act (42 U.S.C. 1395(x)(vv)(2)). The Social Security Act definition rightly requires third-party objective accreditation of dietetics and nutrition programs and curricula, recognizing that the mere accreditation of a college or university in no way ensures that graduates have obtained the skills, education, and training necessary to protect the public and achieve the beneficial patient outcomes as a qualified provider. Notably, the Social Security Act properly recognizes that unlicensed RDNs in states that choose not to license "registered dietitians or nutrition professionals" are still qualified providers under federal law and should be eligible to order resident diets under the proposed rule absent specific, directly countervailing state law. Unfortunately, much like some state licensure laws, the Social Security Act definition provides no guarantee that the nutrition and dietetics practitioner has any training or education in food service, clinical nutrition, food safety, or management of food systems.

In addition, we note that no federal provision specifically requires a registered dietitian to become licensed to be a "qualified dietitian" unless state law — not just a state agency's conflicting interpretation of federal regulations or guidance — requires state licensure or certification. The Academy requests that the Survey and Certification Group issue a guidance memorandum confirming there is no controlling federal law, regulation, or Survey and Certification Group interpretive memorandum that would either (1) preclude a LTC facility from authorizing a competent, qualified registered dietitian from ordering patient diets in a state that does not license dietitians or (2) require an additional federal or state oversight entity other than a physician delegating his or her ordering authority absent a specific, directly countervailing state law. In the minority of states without any relevant regulatory boundaries (such as the six states that choose not to license or certify dietitians), federal law controls to enable long term care facilities to exercise the flexibility CMS affirms they need to meet the needs of their residents most efficiently and effectively.

B. Food Service Director and Other Staff Qualifications (§ 483.60(a)(2) et seq.)

CMS proposes to "add to the requirement for the designation of a director of food and nutrition service that the person serving in this position be a certified dietary manager, certified food service manager, or have a certification for food service management and safety from a national certifying body or have an associate's or higher degree in food service management or hospitality from an accredited institution of higher learning." The Academy supports refining the proposed rule to require that the director of food and nutrition service has obtained, at minimum, the designation as a Certified Dietary Manager and the ServSafe® certification.

The Director of Food Service should conduct and provide training on various aspects of dietary operations for the food and nutrition services staff to ensure they develop and retain skills necessary to effectively provide mandated services. CMS should work with stakeholders to set a minimum number of documented training hours specific to food and nutrition services for elderly populations and specify the content necessary to demonstrate competency for the Director of Food Service. Competencies should include diet rationale and restrictions, feeding skills, balancing of client rights and diet limitation, policies and procedures, food safety, food service management, and familiarity with residents' needs and preferences.

More broadly, continuing education, including regular in-service education, is necessary for all food and nutrition staff members.

C. Menus and Nutritional Adequacy (§ 483.60(c))

The Academy's Nutrition Care Manual19 promotes cultural competence and will assist facilities in meeting the proposed requirement for menus to reflect the cultural and ethnic needs of residents. CMS notes that this proposal would "require that menus be updated by a qualified dietitian or other clinically qualified nutrition professional in the course of routine reviews and updates," which is a task for which RDNs and NDTRs are highly qualified. We note first that unlike a number of other purported "nutrition professionals," RDNs and DTRs are bound by a Code of Ethics providing that, "The dietetics practitioner provides services in a manner that is sensitive to cultural differences."20 Secondly, we note that the Academy's Nutrition Care Manual® has cultural food practices resources for African American, Asian, Indian, Caribbean, Chinese, Ecuadorean, Filipino, Hispanic, Jewish, Korean, Mormon, Muslim, and Native American populations.

RDNs and NDTRs are fully committed to respecting residents' cultural preferences by meeting specific needs when available from facilities' regular food purveyors. We appreciate CMS's recognition that there are reasonable limits to these proposed requirements. The Academy understands the financial and operational realities of long term care facilities, specifically that certain patient preferences for more extravagant or non-medically indicated preferences may result in unreasonable costs. In addition, meeting residents' food preferences for foods not in the facility's formularies may require revamping of food preparation areas (to prevent cross contamination), staffing, and service and are often significantly more expensive when not bought in bulk. Members at some facilities have had success having residents phone the kitchen if they are unable to be satisfied to speak with either the cook or dietary personnel to ensure their preferences and needs are being met.

The Academy interprets the proposed requirement in § 483.11(d)(6)(iii) providing that "(t)he facility can only charge a resident for any noncovered item or service if such item or service is specifically requested by the resident" to mean that a facility is able to charge a resident for preferred foods when ordered only upon resident preference. We encourage CMS to further clarify this requirement to ensure compliance.

CMS proposes to change § 483.60(c)(1) to require that menus must "(m)eet the nutritional needs of residents in accordance with established national guidelines or industry standards." The Academy confirms that the Academy's Nutrition Care Manual is the recognized benchmark industry standard applicable to this proposed revision. Established national guidelines, such as specific dietary recommendations for energy and several essential nutrients and food components, such as dietary fiber, have been delineated in the Dietary Reference Intakes (DRIs).21 The DRIs include the age categories 51 to 70 years and 70 years and older, and although chronological age is used as an indicator, actual nutrient requirements may be wide-ranging in this population. Chronological age categories may be useful for many purposes such as assessing current and planning future nutrient intakes related to both the diet of an individual and of groups. The precise nutrition needs of an older adult at any age are multi-factorial because of the high diversity within this population. The MyPlate for Older Adults icon illustrates the recommendations of the 2010 Dietary Guidelines for Americans (DGA) and MyPlate specially tailored to older adults by emphasizing topics such as adequate fluid; convenient, affordable, and readily available foods; and physical activity.22

D. Frequency of Meals (§ 483.60(f))

The Academy supports CMS's proposed change "to require facilities to have available suitable and nourishing alternative meals and snacks for residents who want to eat at non-traditional times or outside of scheduled meal times in accordance with the resident's plan of care." Specifically, the Academy supports CMS's proposal "to modify the requirement that facilities provide and residents receive 3 meals per day at regular times by adding language to clarify that meals should be served at times in accordance with resident needs, preferences, requests and the plan of care ...(and CMS's proposal) to eliminate the requirement that there be no more than 14 hours between a substantial evening meal and breakfast the following day, except when a substantial bedtime snack is provided, and focus instead on when residents prefer to eat and on ensuring that meal service is provided to meet residents' clinical and nutritional needs."

E. Procuring Safe, Local Food (§ 483.60(i)(1)(i))

The Academy is pleased to see CMS's commitment to culture change by supporting the ability of LTC facilities to utilize facility gardens ("subject to compliance with applicable safe growing and handling practices") and procure food from local producers — farmers and growers. We note that although CMS has declined to require the detailed HACCP process, many of our members would support such a requirement, even as they recognize the inherent cost implications.

F. Definition of "Licensed Health Professional" (§ 483.5)

The Academy is concerned that RDNs have been inexplicably omitted from the definition of "licensed health professional" in § 483.5. CMS proposes to define "licensed health professional (as) a physician; physician assistant; nurse practitioner; physical, speech, or occupational therapist; physical or occupational therapy assistant; registered professional nurse; licensed practical nurse; or licensed or certified social worker." Given the role of the RDN on the IDT and the critical importance of nutrition in improving residents' quality of life and health status, we urge CMS to correct this oversight in the final rule.

G. Ordering of Therapeutic Diets (§ 483.30(f)(2); § 483.60(e)(2))

Enabling RDNs in LTC facilities to order patient diets is particularly important, because they are frequently the only regularly available practitioners competent to modify diets in changed circumstances. Most nursing homes have limited physicians or mid-level practitioners on-site, and current practice requires diet order changes to be delayed until the physician can be reached for approval. The delay in care in LTC facilities is particularly problematic; necessary diet modifications may not happen in a timely manner, the risk of malnutrition increases, and costly hospital readmissions become more likely. RDNs recognize that the benefits and risks associated with dietary restrictions and therapeutic diets for older adults should be considered. Less-restrictive diets that are tailored to each person's needs, desires, and medical conditions can lead to enhanced quality of life and improved nutritional status for older adults living in health care communities.23

RDNs' training and education best qualifies them to order patient diets both initially upon admission and after a nutrition assessment that considers the connection between patients' complex medical problems, nutrition status, and actual nutrition risk. RDNs authorized to order patient diets are more likely to conform the wording of their diet orders to the formulary, eliminating confusion that has frequently resulted in food service workers serving the wrong diet.

Thus, we are very supportive of the proposal and encourage CMS to finalize the rule to allow qualified RDNs, upon delegation of the authority by the attending physician, to independently:

  • Order all patient diets, including therapeutic diets;
  • Order both standard house and disease-specific nutrition supplements;
  • Order enteral nutrition or parenteral nutrition;
  • Order nutrition-related laboratory tests needed to inform nutrition decisions and orders;
  • Order therapeutic diets in states that do not license RDNs if delegated ordering privileges by the attending physician and consistent with state law.

As CMS proposes to update terminology related to therapeutic diets in the LTC Conditions of Participation, the Academy also encourages CMS to uniformly adopt the definition of "therapeutic diet" that CMS has recently adopted for LTC care settings in the MDS:

  • A diet intervention ordered by a health care practitioner as part of the treatment for a disease or clinical condition manifesting an altered nutritional status, to eliminate, decrease, or increase certain substances in the diet (e.g., sodium, potassium).24

The practical implications for defining and ordering therapeutic diets are consistent across the continuum of care. The Academy encourages CMS to uniformly adopt its most recent interpretive coding guidelines for understanding therapeutic diets across the continuum of care. These guidelines help clarify what constitutes a "supplement" and a "mechanically altered diet"25 for coding purposes on the MDS:

  • Therapeutic diets are not defined by the content of what is provided or when it is served, but why the diet is required. Therapeutic diets provide the corresponding treatment that addresses a particular disease or clinical condition which is manifesting an altered nutritional status by providing the specific nutritional requirements to remedy the alteration. (Emphasis in original.)

    A nutritional supplement (house supplement or packaged) given as part of the treatment for a disease or clinical condition manifesting an altered nutrition status, does not constitute a therapeutic diet, but may be part of a therapeutic diet. Therefore, supplements (whether given with, in-between, or instead of meals) are only coded in K0510D, Therapeutic Diet when they are being administered as part of a therapeutic diet to manage problematic health conditions (e.g. supplement for protein-calorie malnutrition).26 (Emphasis in original.)

The Academy agrees with CMS that a therapeutic diet is best defined by why it is served; a regular diet becomes a therapeutic diet only at the nexus of a particular disease or clinical condition and the corresponding treatment that includes a specific nutritional requirement, including parenteral and enteral nutrition. Accordingly, all impacted CMS CoPs should ensure that qualified registered dietitians should be able to provide nutritional supplements as snacks and substitutions unless those supplements are specifically intended as a part of a particular treatment regimen.

VI. Conclusion

The Academy appreciates the opportunity to comment and serve as a resource to CMS as you finalize the proposed rule and develop resources to implement the revised LTC standards. We are happy to discuss these recommendations in greater detail in the near future. Please contact either Jeanne Blankenship at 202-775-8277 ext. 6004 or by email at jblankenship@eatright.org or Pepin Tuma at 202-775-8277 ext. 6001 or by email at ptuma@eatright.org with any questions or requests for additional information.27

Sincerely,

Jeanne Blankenship, MS RDN
Vice President, Policy Initiatives and Advocacy
Academy of Nutrition and Dietetics

Pepin Andrew Tuma, Esq.
Senior Director, Regulatory Affairs
Academy of Nutrition and Dietetics


1 The Academy recently approved the optional use of the credential "registered dietitian nutritionist (RDN)" by "registered dietitians (RDs)" to more accurately convey who they are and what they do as the nation's food and nutrition experts. The RD and RDN credentials have identical meanings and legal trademark definitions.

2 NDTRs are educated and trained at the technical level of nutrition and dietetics practice for the delivery of safe, culturally competent, quality food and nutrition services. They are nationally credentialed and are an integral part of health care and foodservice management teams. They work under the supervision of a registered dietitian nutritionist when in direct patient/client nutrition care; and often work independently in providing general nutrition education to healthy populations.

3 Dorner B, Friedrich EK, Posthauer ME. Position of the American Dietetic Association: individualized nutrition approaches for older adults in health care communities. J Am Diet Assoc. 2010;110(10):1549-53.

4 Ibid

5 O'Sullivan Maillet J, Baird Schwartz D, Posthauer ME. Position of the Academy of Nutrition and Dietetics: Ethical and Legal Issues in Feeding and Hydration. J Acad Nutr Diet. 2013;113(6):828-33.

6 Ibid.

7 Hoyt RE, Bowling LS. Reducing readmissions for congestive heart failure. Am Fam Physician. Apr 15 2001;63(8):1593-1598.

8 Paterna S, Parrinello G, Cannizzaro S, et al. Medium term effects of different dosage of diuretic, sodium, and fluid administration on neurohormonal and clinical outcome in patients with recently compensated heart failure. Am J Cardiol. Jan 1 2009;103(1):93-102

9 Krumholz HM. Post-hospital syndrome--an acquired, transient condition of generalized risk. N Engl J Med. 2013;368(2):100-2.

10 Position statement on interdisciplinary team training in geriatrics: an essential component of quality health care for older adults. J Am Geriatr Soc. 2014;62(5):961-5.

11 Mion L, Odegard PS,Resnick B et al.Interdisciplinary care for older adults with complex needs: American Geriatrics Society position statement. J Am Geriatr Soc 2006;54:849–852.

12 Rask K, Parmelee PA,Taylor JA et al.Implementation and evaluation of a nursing home fall management program. J Am Geriatr Soc 2007;55:342–349.

13 Swafford KL, Miller LL, Tsai PF et al. Improving the process of pain care in nursing homes: A literature synthesis. J Am Geriatr Soc 2009;57:1080–1087.

14 Challa S, Sharkey JR, Chen M, Phillips CD. Association of resident, facility, and geographic characteristics with chronic undernutrition in a nationally represented sample of older residents in U.S. nursing homes. J Nutr Health Aging. 2007;11:179-184.

15 Dorner B, Posthauer ME, Thomas D. The role of nutrition in pressure ulcer prevention and treatment: National Pressure Ulcer Advisory Panel white paper. Advance Skin Wound Care. 2009;22:212-221.

16 Ptomey LT, Wittenbrook W. Position of the Academy of Nutrition and Dietetics: nutrition services for individuals with intellectual and developmental disabilities and special health care needs. J Acad Nutr Diet. 2015;115(4):593-608.

17 Chernoff R. Tube feeding patients with dementia. Nutr Clin Pract. 2006;21(2):142- 145.

18 Dorner B, Posthauer ME, Thomas D. The role of nutrition in pressure ulcer prevention and treatment: National Pressure Ulcer Advisory Panel white paper. Advance Skin Wound Care. 2009;22:212-221.

19 Academy of Nutrition and Dietetics Nutrition Care Manual. NCM website. Accessed September 5, 2015.

20 American Dietetic Association/Commission on Dietetic Registration code of ethics for the profession of dietetics and process for consideration of ethics issues. J Am Diet Assoc. 2009;109(8):1461-7.

title="Dietary Guidance DRI Table">Dietary Guidance DRI Tables. US Department of Agriculture Food and Nutrition Information Center website. Accessed September 12, 2015.

22 MyPlate for Older Adults. Jean Mayer USDA Human Nutrition Research Center on Aging website. Accessed September 10, 2015.

23 Position of the American Dietetic Association: Individualized nutrition approaches for older adults in health care communities. J Am Diet Assoc. 2010; 110(10):1549-1553.

24 MDS 3.0 RAI Manual, Chapter 3, Section K: Swallowing/ Nutritional Status. Accessed September 5, 2015.

25 Ibid., Defining "mechanically altered diet" as "(a) diet specifically prepared to alter the texture or consistency of food to facilitate oral intake. Examples include soft solids, puréed foods, ground meat, and thickened liquids. A mechanically altered diet should not automatically be considered a therapeutic diet."

26 Ibdi

27 CITE My Plate for Older Adults. Jean Mayer USDA Human Nutrition Research Center on Aging at Tufts. University website.