Providers Strike Back at Lawmakers’ Call for Tighter Regulations

The skilled nursing industry pushed back strongly against the idea that the Centers for Medicare & Medicaid Services (CMS) has reduced federal oversight of nursing homes, as argued recently by 17 state attorneys general.

“There was no rollback of anything,” Dr. David Gifford, senior vice president of quality and regulatory affairs at the American Health Care Association, told Skilled Nursing News. “I think that they really mischaracterized and were factually incorrect in a number of areas trying to bolster their position, which is that more penalties lead to better quality.”

In a letter to CMS, 17 state attorneys general asked the agency to reconsider its November 2017 decision to delay enforcement of the new Requirements of Participation (RoPs). They also asked CMS to reconsider guidance from July 2017 that de-emphasizes per-day penalties for certain violations while putting greater emphasis on per-instance monetary penalties.

But the 18-month moratorium on imposing civil monetary penalties (CMPs) outlined in the Nov. 24, 2017, memorandum only applies for deficiencies cited under Phase II of the 2016 nursing home requirements, LeadingAge vice president of regulatory affairs Janine Finck-Boyle said in a statement emailed to SNN.

“The moratorium does not remove nursing homes’ obligation to comply with the Phase II requirements,” she stressed. “CMS is using the 18-month moratorium to educate surveyors and nursing homes to ensure they understand the health and safety expectations that will be evaluated through the survey process.”

The moratorium specifically applies to deficiency findings for certain F-tags. In the 18-month period, three of the 12 enforcement actions available to CMS — using CMPs, termination from the Medicare program, and denying payment for new Medicare admissions — will not be used for deficiencies related to those specific F-tags.

The attorneys general — led by California’s Xavier Becerra — asserted that removing the potential financial burden could embolden skilled nursing providers to break the law.

“The threat of penalties is a deterrent to SNFs engaging in abusive behavior,” the group wrote. “Eroding even these penalties enables unscrupulous SNFs to provide substandard care and receive minimal penalties, if these lapses are even brought to light.”

But it’s not as though nursing homes with deficiencies would get away with them, Gifford stressed to SNN. They could have to take any number of corrective measures, such as implementing a correction plan, attending in-service sessions, or hiring outside consultants.

He particularly pushed back against the idea expressed in the letter that infection control measures are being eroded, stressing that the Antibiotic Stewardship Program F-tag — which falls under the 18-month moratorium — is a part of infection control. And even though CMS suspended the use of CMPs and the other measures for antibiotic stewardship deficiencies, those deficiencies are still being cited, he noted.

Finck-Boyle also emphasized this point in her statement.

“CMPs still are imposed for failure to comply with the multitude of other requirements to which nursing homes are subject,” she said. “The CMP moratorium does not mean that the new requirements are not being implemented or enforced. CMPs are only one of a number of penalties that can be applied for failure to comply with federal nursing home care standards.”

The Nov. 24 memo noted specifically that while CMPs, termination, and denial of payments are suspended, the implementation date of Nov. 28, 2017, for the Phase II provisions is still in effect. State survey agencies should cite the tags and report their findings as usual. So while those three specific CMS actions are out, calling the moratorium a rollback is inaccurate, Gifford argued.

“You still are getting enforced on it, being cited on it — you’re just not going to be kicked out of the Medicare program on it,” Gifford said. “I just don’t see how that erodes the public safety of health care.”

Written by Maggie Flynn

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Maggie Flynn on Linkedin
Maggie Flynn
Business reporter at Aging Media Network
When she's not working, Maggie enjoys running, reading, writing and sports, in no particular order. Favorite things include murder mysteries, Lake Michigan and the Pittsburgh Penguins.

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