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CMS Administrator Announces Continuing Effort to Improve Quality and Combat Abuse/Neglect in Skilled Nursing Facilities

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CMS Administrator Announces Continuing Effort to Improve Quality and Combat Abuse/Neglect in Skilled Nursing Facilities

Authored by Joanne Lax (retired Member of Dykema)

In a blog post published on April 15, 2019, the Administrator of the federal Centers for Medicare and Medicaid Services (CMS), Seema Verma, reiterated CMS’ “sacred trust” to protect residents of skilled nursing facilities (SNFs) from abuse and neglect and to ensure that they receive high quality care. Ms. Verma outlined five key initiatives that CMS has taken and is presently working on to fulfill this mission. While many sound familiar, the blog post evidences CMS’ renewed intent to impose stricter consequences for underperforming SNFs and to subject all SNFs to enhanced public scrutiny. 

CMS’ initiatives are:

  • Provide State Survey Agencies with additional tools to conduct nationally consistent SNF surveys, and to hold them accountable for their performance. To this end, CMS is “examining the way surveyors identify issues such as abuse, facility staffing levels, and dementia care, and... clarifying expectations regarding when abuse must be reported to the State and law enforcement.” This will focus upon clearer procedures for State Agencies to identify and report instances of immediate jeopardy, and to protect residents while the immediate jeopardy is being abated. CMS is also exploring ways for its Regional Office staff to collaborate and coordinate in the identification of resident abuse and neglect, and to impose consistent sanctions when it has occurred. SNFs can also expect CMS to start using Medicare claims data and artificial intelligence to aid Survey Agencies in identifying instances of resident abuse/neglect.
  • Enhance enforcement against underperforming SNFs. For roughly six months already CMS has shared Payroll-Based Journal staffing information with the Survey Agencies so that the Survey Agencies can target after hour and weekend surveys toward SNFs that appear to fall below CMS staffing requirements. Additionally, CMS is imposing more severe penalties upon so called “late adopters”—e.g. SNFs that have not improved their antipsychotic medication utilization rates for long-stay nursing home residents since 2011. Late adopters that have a history of noncompliance with CMS’ rules regarding chemical restraints, dementia care, and psychotropic drugs and that have been determined in a current survey to be out of substantial compliance with those rules will face denial of payment for new admissions (DPNAs) and per-day civil money penalties (CMPs). CMS is also asking Congress for $45 million additional funding for SNF survey activities, and the ability to vary the time intervals between mandatory SNF surveys so that State Agencies can focus upon poor performers.
  • Enhance transparency about SNF performance for consumers. CMS has long used Nursing Home Compare as a mechanism to spotlight poor quality SNFs for consumers and the public. CMS will continue to do so and plans to add additional data to this resource. It has also changed the way that it will notify the public about terminations of provider agreements. In recognition of the way in which most people now obtain news information, CMS will no longer publish termination notices in local print newspapers.  Instead these notices will now be published on its website. CMS has also made its on-line surveyor training course available to the public. Finally, CMS is working on ways to make its Statements of Deficiencies (SOD or Form 2567) more understandable and available to the public.
  • Teach SNFs how to provide better quality care. CMS recently implemented a program to invest CMP dollars in specific educational programs regarding better staffing, preventing adverse events, and better dementia care. Further, CMS touts its Value-Based Purchasing program for SNFs as a way to financially reward high quality SNFs and thus incentivize them toward increased quality.
  • Reducing administrative burden on SNFs so that they can devote additional time to resident care. Recognizing that implementing the 2016 revised Requirements for Participation may be burdensome for some SNFs, CMS partnered with the CDC to provide free on-line training to SNFs about new infection control mandates. It is looking for other similar opportunities.

This is not the first time that CMS has turned its attention to SNF quality. Indeed, both the Government Accountability Office (GAO) and the Office of Inspector General (OIG) have regularly chided CMS for not doing enough to protect SNF residents, which has resulted in numerous previous quality initiatives. Changes to SNF survey and enforcement activities can have significant operational and financial consequences for SNFs. A robust CMS enforcement action against an instance of immediate jeopardy or a CMS termination action can be financially crippling to a SNF and tarnish its reputation with its staff, residents, families, and the public. SNFs should heed CMS’ warnings and embrace their “sacred trust” toward their residents by redoubling their existing efforts to provide exceptional care in a safe environment.

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Joanne R. Lax is a retired member of Dykema. Her career with Dykema’s Health Care Practice Group spanned 40 years, starting in 1978. Her areas of concentration included post-acute and long-term care, behavioral health, clinical ethics, data privacy/HIPAA, and assisted reproductive technology. Joanne presently serves on the Board of Directors of the American Health Lawyers Association (term expected to end in 2021), after serving for nine years as Chair and Vice Chair of AHLA’s Post-Acute and Long-Term Care Practice Group. She also served as Chair of the State Bar of Michigan’s Health Care Law Section. During her career, Joanne earned many honors and awards, including designation as a Super Lawyer, designation as a Best Lawyer and Best Lawyer’s Lawyer of the Year for health care in Detroit in 2012, Fellow of the State Bar of Michigan Health Care Law Section, and designation as a Leading Lawyer. In her retirement, Joanne is a guest blogger for Homeostasis.