Temporary Enforcement Delays for Certain Phase 2 F-Tags and Five Star Health Inspection Freeze

Regulation | November 28, 2017 | by Janine Finck-Boyle

On November, 24th, the Centers for Medicare and Medicaid (CMS) posted the following Survey and Certification (S&C) Memos, 18-04-NH and 18-05-NH.  LeadingAge has summarized 18-04-NH below.

LeadingAge - Overview of S&C 18-04-NH

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

CMS will put into place an 18-month moratorium on the imposition of civil money penalties (CMPs), discretionary denials of payment for new admissions(DPNAs) and discretionary termination where the remedy is based on a deficiency finding of one of the specific Phase2 F-tags:

  • 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)
    • NOTE: CMS is NOT extending the moratorium to F608, which addressed reporting reasonable suspicion of a crime due to the concerns about significant resident abuse going unreported. 
    • This moratorium does not include Phase 1 or Phase 2 requirements not listed; facilities will be cited for any noncompliance. Phase 2 provisions will be cited as appropriate

Enforcement Remedies:

Directed Plan of Correction

  • A Directed Plan of Correction would address the structures, policies, and processes needed by the facility to demonstrate and maintain substantial compliance.
  • CMS or State will base compliance upon a revisit or after an examination of credible written evidence that can be verified by CMS without an on-site visit
  • Surveyors will go back on-site if any of the F-tags cited are Substandard Quality of Care(SQC) or when tags are at the actual harm or immediate jeopardy levels

Directed In-Service Training

  • Directed In-Service Training is an enforcement remedy that may be used when CMS or the State, (or the temporary manager if applicable) believes that education is likely to correct the deficiencies and help the facility achieve and sustain substantial compliance.
  • This remedy requires the relevant staff of the facility to attend an in-service training program that will address a demonstrated knowledge deficit. The purpose of directed in-service training is to provide the information necessary for the facility to achieve and maintain substantial compliance.
  • Facilities should use well -established centers of geriatric health services or a State may provide special consultative services for obtaining this type of training.
  • A State may compile a list of resources that can provide directed in-service training and could make this list available to facilities and interested organizations. Facilities may also utilize their state’s ombudsman program to provide training about residents’ rights and quality of life issues.
  • CMS or State will base compliance upon a revisit or after an examination of credible written evidence that can be verified by CMS without an on-site visit.
    • NOTE: The temporary moratorium does not include remedies that are required by federal law:
  • Denial of Payment for New Admissions IF the facility has not achieved compliance within 3 months
  • Termination after 23 days for immediate jeopardy or termination after 6 months for non-immediate jeopardy noncompliance.

Temporary Freeze of Health Inspection Five-Star Ratings

  • CMS will hold constant or FREEZE the HEALTH INSPECTION star rating for health inspection surveys and complaint investigations conducted on or after November 28th, 2017.
  • The freeze will be for one year.
  • NOTE: recent health surveys and complaint investigations conducted BEFORE November 28th, WILL continue to be calculated in the facility’s star rating including:
    • Re-visit
    • A standard health inspection and revisit is conducted and closed AFTER November 28th, 2017. Results WILL be used in the nursing home’s star rating as the survey conducted BEFORE the ratings freeze. Same for Complaint investigations.
    • A request for an IDR is received PRIOR to the freeze and completed after November 28th, 2017 with a change in SS for a least on citation - the change will be reflected.
  • The third(oldest) cycle of health inspection survey and complaint investigation data will no longer be used.
  • The two most recent cycles of survey data will be the weighted health inspection score and star ratings.(Early 2018)
  • The most recent cycle will be at 60% and the prior at 40%.
  • Nursing Home Compare(NHC) will provide summaries of a facility’s most recent survey findings, such as the total number of deficiencies cited, and the highest scope and severity level cited. This also includes identifying nursing homes with deficiency-free surveys. CMS will post the full report of each survey (Form CMS-2567), which provides more details about the survey findings

Survey and Certification Memo 18-05-NH - Preparation for Launch of New Long-Term Care Survey Process(LTCSP)

As the new computer-based LTCSP process is effective November 28th, 2017, Appendix P will no longer be available.  The LTCSP survey guide will replace Appendix P.