powered by LeadingAge New York

CMS Issues Temporary Enforcement Delays for Certain Phase 2 F-Tags and Changes to Nursing Home Compare

On Nov. 24th, the Centers for Medicare and Medicaid Services (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, 2017, 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, 2017 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 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 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 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. 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. The New York State Department of Health (DOH) 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.

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, 2017. 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, 2017. They anticipate this freeze to begin in early 2018 and last approximately one year. Any survey activity conducted prior to Nov. 28, 2017, regardless of whether it is closed by then, will be included in the rating.

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. The third oldest year will be dropped from the score just as it would have been dropped 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, 2017 and that Appendix P will no longer be accessible beginning Nov. 28, 2017. Resources on the new survey process are available here.

Contact: Mary Wassel, mwassel@leadingageny.org, 518-867-8850