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CMS Issues 18 Month Moratorium on Enforcement Remedies for Phase 2 Nursing Home Requirements

By: D|K’s Health Care Team

On November 24, 2017, the Centers for Medicare & Medicaid Services (“CMS”) announced an 18 month moratorium on certain enforcement remedies for specific Phase 2 nursing home regulations that became effective on November 28, 2017. The moratorium reflects a 6-month extension of the June 2017 moratorium and is for the purpose of educating providers and surveyors to “ensure that they understand the health and safety expectations that will be evaluated…since these Phase 2 requirements are associated with unique and separate tags where specialized efforts and technical assistance may be needed.”

The 18 month moratorium applies to 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 set of specific F-tags. It is important to note, however, that the moratorium only affects discretionary enforcement remedies. The moratorium also did not affect the November 28, 2017 implementation for Phase 2 provisions. State survey agencies will still cite all tags and will continue to forward their findings to the regional office. Only the following F-tags are affected by the moratorium:

  1. F655 (Baseline Care Plan)
  2. F740 (Behavioral Health Services),
  3. F741 (Sufficient/Competent Direct Care/Access Staff-Behavioral Health),
  4. F758 (Psychotropic Medications)
  5. F838 (Facility Assessment),
  6. F881 (Antibiotic Stewardship Program),
  7. F865 (QAPI Program and Plan), and
  8. F926 (Smoking Policies).

Noncompliance with any of the specified F-tags can result only in a Directed Plan of Correction and/or Directed In-Service training as potential remedies. However, CMS is not extending the moratorium to F608, which addresses reporting reasonable suspicion of crime, nor is it being extended to any other Phase 2 F-tag that is not included in the list above.

Statutorily required penalties such as mandatory DPNAs and mandatory termination for failure to achieve substantial compliance within the required timeframe will continue to be imposed for noncompliance with any Phase 1 or Phase 2 requirements.

CMS also announced a temporary freeze to health inspection five-star ratings which is expected to begin in early 2018 and last approximately one year. It should be noted that any health surveys or complaint investigations conducted before November 28, 2017 will continue to be used in calculating a facility’s star rating. Further, the health inspection star rating will be using information only from the two most recent cycles of surveys – this is a change in the rating that is used to be calculated with the three most recent surveys.

In addition to the temporary freeze to the health inspection ratings, CMS plans to post summaries of a facility’s most recent survey findings to the Nursing Home Compare website, including a full report of each survey. The posts will provide details such as the amount of deficiencies cited, the highest scope and severity level cited or, if applicable, that the facility was deficiency-free. CMS has communicated these changes to the different programs that use the Five-Star Quality Rating System as a component of their program. CMS expects these changes to go into effect at the same time as the changes to the Five-Star Quality Rating System, outlined in the preceding paragraph.

Should you have any questions about the temporary moratorium on the imposition of certain enforcement remedies, please contact your Davis & Kuelthau attorney, the author noted above or the related practice group chair linked here.