Enforcement delays for Phase 2 nursing home regulations

On November 24, CMS issued S&C 18-04-NH delaying enforcement for certain F-Tags for Phase 2 of the Long Term Care Requirements of Participation (RoPs). Phase 2 becomes effective on Nov. 28 simultaneous with the start of the new survey process. This moratorium extends the moratorium previously announced in S&C 17-36-NH on June 30 by six months.    

Enforcement Moratorium

Specifically, CMS will provide an 18-month moratorium on the imposition of CMPs, discretionary denials of payment for new admissions and discretionary termination when related to of the F-Tags listed below. NOTE: This moratorium does not apply to mandatory provisions such as mandatory denials of payment for new admissions and mandatory termination for failure to achieve substantial compliance within required timeframes.

  • F655 (Baseline Care Plan); §483.21(a)(1)-(a)(3)
  • F740 (Behavioral Health Services); §483.40
  • F741 (Sufficient/Competent Direct Care/Access Staff-Behavioral Health); §483.40(a)(1)- (a)(2)
  • F758 (Psychotropic Medications) related to PRN Limitations §483.45(e)(3)-(e)(5)
  • F838 (Facility Assessment); §483.70(e)
  • F881 (Antibiotic Stewardship Program); §483.80(a)(3)
  • F865 (QAPI Program and Plan) related to the development of the QAPI Plan; §483.75(a)(2) and,
  • F926 (Smoking Policies). §483.90(i)(5)
  • (CMS is not applying the enforcement moratorium to F608 related to reporting reasonable suspicion of a crime due to the concerns about significant resident abuse going unreported.)

CMS has directed state survey agencies to follow the standard enforcement process with all available remedies for all the other F-tags. Note that the moratorium may not prevent all CMPs and discretionary penalties for Phase 2 depending on how the state survey agency classifies the citation. For example, F758 (psychotropic medications) is on a moratorium, but F757 (unnecessary drugs) is not; the state survey agency could potentially cite the noncompliance under F757 not F758 depending on the circumstances resulting in an enforcement action. CMS explicitly states that this 18-month moratorium does not change the implementation date for the Phase 2 provisions and state survey agencies should cite these tags as appropriate and continue to forward their findings to the RO as normal.  State survey agencies will continue to follow standard enforcement procedures related to Phase 1 and will utilize additional new remedies for the F-tags included in the moratorium as explained below.

Additional Remedies During Moratorium

In lieu of the CMPs and discretionary remedies for the Phase 2 F-Tags listed above, CMS has created two additional remedies that may be applied for noncompliance, Directed Plan of Correction (DPOC) and/or Directed In-Service Training (DIST). Once the moratorium is over on May 29, 2019, enforcement for all cited tags will return to the normal enforcement policy.

A Directed Plan of Correction (DPOC) is a remedy developed by CMS or the state survey agency requiring the facility to take action within a specified timeframe to correct cited non-compliance. The DPOC will address the structures, policies and processes needed by the facility to demonstrate and maintain substantial compliance. It will be completed as verified by CMS or the state upon a revisit or credible written evidence that can be verified without a site visit. Site re-visits will be expected for any of the tags within the moratorium where cited for Substandard Quality of Care (SQC) or for actual harm or immediate jeopardy.

A Directed In-Service Training is an enforcement remedy that may be used when CMS or the state survey agency believes that education is likely to correct the deficiencies and achieve substantial compliance. This remedy will require the relevant staff of the facility to attend an in-service training program that will address a demonstrated knowledge deficit.  The training programs should be developed by well-established centers of geriatric health services education. After the training has been completed, CMS or the state survey agency will assess whether substantial compliance has been achieved or as verified by CMS or the state upon a revisit or credible written evidence that can be verified without a site visit.

Application of Discretionary Enforcement Remedies During 18-Month Moratorium

Discretionary Enforcement Remedies Phase 1 Tags Only Both Phase 1 and Phase 2 Tags Phase 2 Tags Only
Normal Enforcement Remedies apply OR 18-Month Moratorium Enforcement Policies apply (DPOC and/or DIST) Normal Enforcement Policies apply Normal Enforcement Policies apply for the Phase 1 tag(s); and DPOC/DIST only may be imposed for Phase 2 tag(s) listed in moratorium (F655, F740, F741, F758, F838, F881, F865, F926) 18-Month Moratorium Enforcement Policies apply (DPOC/DIST) to tag(s) listed in moratorium (F655, F740, F741, F758, F838, F881, F865, F926)

5-Star Changes

CMS also elaborated on the 5-Star “freeze” announced on June 30. CMS will be holding constant or “freezing” the health inspection star rating for health inspection surveys and complaint investigations conducted on or after Nov. 28. They anticipate this freeze to begin in early 2018 and last approximately one year. Any survey activity conducted prior to Nov. 28 regardless of whether it is closed by then will be included in the rating as the survey was conducted prior to Nov. 28.

Additionally, CMS stated that the health inspection star rating will no longer use information of the third oldest cycle of the health inspection survey and complaint investigation data.  CMS will be dropping the third oldest year just as it would have been dropped from the score due to its age as part of the normal update process.  This change will occur in early 2018 for all facilities. At that time, the most recent cycle will be weighted at 60 percent and the prior cycle will be weighted at 40 percent.

 In addition to the freeze in score, CMS plans to add a summary of the facility’s most recent survey findings on nursing home compare to ensure transparency. This summary will include (minimally) the total number of deficiencies cited and the highest scope and severity level cited.

New Survey Process

CMS also released S&C 18-05-NH affirming that the new survey process will be effective Nov. 28 and that Appendix P will no longer be accessible beginning Nov. 28. Resources on the new survey process are available here.