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Clarification and Revisions to Interpretive Guidance at F Tag 492 Issued by CMS

by Published On: Jun 06, 2012
CMS

On June 1, the Centers for Medicare and Medicaid Services (CMS) issued Clarification and Revisions to Interpretive Guidance at F-Tag 492, as Part of Appendix PP, State Operations Manual (SOM) for Long Term Care (LTC) Facilities, a Survey and Certification Letter in response to reported confusion over when nursing facilities should be cited under federal requirements for being out of compliance with state and local laws and regulations.

The letter revises current surveyor guidance to clarify that facilities are out of compliance with the federal regulations only when a final adverse action has been taken by the authority having jurisdiction.

State Survey Agencies are advised to refer situations indicating possible non-compliance with a state or local laws and regulations to the appropriate authority and CMS Regional Offices (ROs) are to assist with contact and referral if noncompliance is observed with a law, regulation, code, or standard under the purview of a Federal agency other than CMS. 

What's in the letter?

  • F492:   §483.75(b) Compliance With Federal, State, and Local Laws and Professional Standards §483.75(c) Relationship to Other HHS Regulations

  • Current guidance in Appendix PP of the SOM for Tag F 492, 42 CFR §483.75(b) and (c) instructs that this tag be cited "…only when the authority having jurisdiction has both made a determination of noncompliance and has taken a final adverse action as a result."  In response to confusion regarding citation  when a facility "…simply does not meet a State regulation…", CMS is clarifying and revising guidance to Surveyors.

  • The requirements at 42 CFR §483.75(b)-Compliance With Federal, State, and Local Laws and Professional Standards require: "The facility must operate and provide services in compliance with all applicable Federal, State, and local laws, regulations, codes, and with accepted professional standards and principles that apply to professionals providing services in such a facility."

  • 42 CFR §483.75(c)-Relationship to Other Health & Human Services (HHS) Regulations requires: "In addition to compliance with the regulations set forth in this subpart, facilities are obliged to meet the applicable provisions of other HHS regulations, including but not limited to those pertaining to nondiscrimination on the basis of race, color, or national origin (45 CFR part 80); nondiscrimination on the basis of handicap (45 CFR part 84); nondiscrimination on the basis of age (45 CFR part 91); protection of human subjects of research (45 CFR part 46); and fraud and abuse (42 CFR part 455)."

  • CMS advises in the Letter: "Although these regulations are not in themselves considered requirements under this part, their violation may result in the termination or suspension of, or the refusal to grant or continue payment with Federal funds."

  • CMS' stated intent for these requirements is "…to ensure that a facility is in compliance with Federal, State, and local laws, regulations, codes, and with accepted professional standards and principles that apply to professionals providing services in LTC facilities."

  • CMS' defines noncompliance as "…only when a final adverse action has been taken by the authority having jurisdiction regarding noncompliance with its applicable laws, regulations, codes and/or standards."


    • "Accepted professional standards and principles means the individual State professional licensure practice acts and scope of practice regulations and/or standards…."

    • "An authority having jurisdiction is a Federal, State, local, or other regional department or individual, e.g., fire chief or marshal; labor or health department or building official; electrical inspector; or others having statutory authority..."

    • "Final adverse action" is an adverse action imposed by the authority having jurisdiction that is more than a corrective action plan or the imposition of a civil money penalty, such as a ban on admissions, suspension or loss of a facility or professional license, etc., and is NOT under appeal or litigation by the facility or the professional providing services in the facility.

  • Failure of the facility to meet a Federal, State or local law, regulation, code, or accepted professional standards that apply to professionals providing services may only be cited at F492, "…when the Federal, State or local authority having jurisdiction has both made a determination of non-compliance AND has taken a final adverse action."

  • State Survey Agencies (SAs) are instructed not to use F492 "…to simply cite non-compliance with State or local licensure requirements…"; and to refer to Tag F281, §483.20(k)(3)-The services provided or arranged by the facility must-- (i) Meet professional standards of quality-- for possible deficiencies related to professional standards of quality.

  • SAs are instructed not to cite F492 as past non-compliance "…if at the time of the standard, complaint or follow-up survey, the facility or professional within the facility is in compliance with the Federal, State or local law, regulation, code and/or standard but was found not to be in compliance with those requirements during a time before the on-site survey."

  • Surveyors are to refer situations indicating possible non-compliance with a State or local law, regulation, code or standard to the authority having jurisdiction. If written confirmation is received that a final adverse action has been taken, the facility may be found out of compliance and cited at F492.

  • If noncompliance is observed with a law, regulation, code or standard under the purview of a Federal agency other than CMS, the RO is to assist with contact and/or referral to the appropriate agency.

  • Surveys are not to be delayed or prolonged pending confirmation from an authority.

  • Surveyor Instructions for F492 re: Issues Related to Medicare Liability Notices and Beneficiary Appeal Rights:

  • At the entrance conference, surveyors are to obtain a list of Medicare beneficiaries who requested demand bills in the past six months and to randomly select one file to review for timely submission of the bill to the Fiscal Intermediary (FI) or Medicare Administrative Contractor (MAC) [In general, within one full calendar year…] "If the facility failed to submit the bill…or charged the resident while the decision was pending, the facility is in violation of the provider agreement with respect to resident billing requirements. If no Medicare beneficiaries requested a demand bill in the past six months, this portion of the review is complete…"

  • During closed record review, surveyors are to review three charts of discharged Medicare beneficiaries and to expand the sample as necessary. "If the facility failed to provide…the appropriate liability and/or appeal notice(s), [it] is in violation of the notice requirements at tag F156, 42 C.F.R. 483.10, Resident Rights.

 



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