Citing Lack of CMS Guidance, Providers Ask for Blanket Delay of Final Requirements of Participation Updates

With a little more than a month to go before the final changes to the baseline Medicare and Medicaid requirements for nursing homes take effect, several key questions about complying with the rules remain — prompting at least one group to ask for a formal delay.

The third and final updates to the Requirements of Participation (RoPs) will take effect on November 28, with a specific focus on compliance: Starting that day, providers will be required to maintain both an internal compliance program and a detailed Quality Assurance & Performance Improvement (QAPI) plan, among other fresh regulations.

But according to LeadingAge, a national trade group that represents non-profit nursing homes, the Centers for Medicare & Medicaid Services (CMS) has failed to provide key guidance on a variety of factors — particularly around how providers will be assessed on new factors such as person-centered care planning, behavioral health services, and compliance.


“This lack of guidance puts nursing homes in an untenable position, as compliance will require lead time for program development, resource allocation, and staff training,” LeadingAge president and CEO Katie Smith Sloan wrote in a Friday letter to CMS administrator Seema Verma.

The RoPs form the regulatory backbone for nursing homes in the United States, representing the minimum set of hurdles that operators must clear in order to legally participate in the Medicare and Medicaid reimbursement programs.

CMS initially formalized the new RoPs through a final rule issued back in 2016, with a staggered three-phase implementation plan. The first phase took effect in November 2016, and the second rolled out the following November — though CMS delayed enforcement on Phase II for 18 months, giving providers more time to adapt without having to immediately face civil monetary penalties (CMPs) or other punishments.


The federal government also this past summer issued a proposed rule that would postpone implementation of certain new RoPs, specifically those pertaining to the QAPI and ethics programs, as well as certain requirements for the newly mandatory infection preventionist (IP) role.

In the letter, Sloan thanked Verma for the initial delays, but called on CMS to extend the order to the entire round of Phase III changes. In particular, Sloan expressed concerns that state-level survey agencies aren’t ready to begin accurately assessing nursing homes under the final group of updated rules.

“As of now, surveyors have received no instruction from CMS as to what compliance with these requirements will look like and how they are supposed to assess nursing home performance,” she wrote. “The lack of guidance is bound to lead to wide variations in citations on the Phase III requirements.”

To further confuse the issue, CMS has not yet finalized the initial proposal to delay portions of the new RoPs, leaving the exact post-November 28 landscape something of a mystery.

“We still don’t know what that timetable is,” John Dailey, president of Management Advisors Inc., said during a presentation at the American Health Care Association’s (AHCA) annual conference and expo in Orlando, Fla. last week.

In the meantime, Dailey and presentation partner Sarah Couture — senior director at Ankura Consulting — emphasized the continued importance of developing a detailed compliance plan. And part of that shift, according to Couture, will involve embracing a culture where employees are rewarded for calling out problems and rectifying them.

“When an organization can be proactive and identify its own junk, let’s say — if you find your own problems, and fix them and address them, pay that money as you need to, it’s a whole lot easier than the government coming in and finding your problems,” Couture said.

Companies featured in this article: