CMS to Have ‘Limited’ Survey Capacity for New Nursing Home Requirements of Participation

Confusion continues to reign over the final set of new requirements for Medicare- and Medicaid-certified nursing homes, as the federal government disclosed that it will have very little ability to enforce the rules until the middle of next year.

The third and last update to the Requirements of Participation (RoPs) is set to take effect Thursday — Thanksgiving Day — but the Centers for Medicare & Medicaid Services (CMS) told state-level surveyors not to expect guidance on assessing operators’ performance anytime soon.

“While the Phase 3 requirements will be effective November 28, 2019, and facilities are required to comply with these and all requirements, our ability to survey for compliance with these requirements will be limited until the Interpretive Guidance is released,” CMS wrote in a November 22 memo to directors of State Survey Agencies (SSAs). “We will be releasing the guidance in the second calendar quarter of calendar year 2020, along with information on training and implementing related changes to The Long Term Care Survey Process (LTCSP).”


The memo represents the latest mile marker in a long road for the RoP overhaul, announced in mid-2015 as the first major change to the rules since 1991.

The RoPs form the baseline level of compliance that nursing facilities much achieve in order to participate in Medicare and Medicaid, covering a diverse array of regulations from infection control to care planning to staff development.

After the first phase arrived on time in November 2016, CMS delayed enforcement of the second phase from 2017 to 2018; while nursing homes were still technically required to comply with the updated requirements, CMS held off on assessing civil monetary penalties (CMPs) or terminations of Medicare and Medicaid eligibility for a full year.


The federal government threw another wrench into the RoP equation this past summer, when CMS issued a proposed rule that would delay certain aspects of the third round — including aspects of the newly required Quality Assurance Program Improvement (QAPI) plan and certain ethics rules.

Providers applauded that decision, but CMS has yet to finalize that proposed rule as of Wednesday afternoon; the final rule is not expected to be published until next year.

Between the confusion over the potential partial delay and a lack of firm guidance regarding enforcement, non-profit long-term care trade group LeadingAge in October formally asked CMS to hold off the entire third round.

“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 letter to CMS administrator Seema Verma.

Lawmakers and resident advocates, meanwhile, have criticized moves to delay the last set of RoPs, with a group of state attorneys general in September calling on CMS to scrap the delay proposal.

“Under these circumstances, providing an additional year for changes that may or may not take affect [sic] would be unnecessary, and would delay the benefit to residents that the additional protections would bring if timely implemented,” the AGs of New York, Illinois, Maryland, Michigan, Nevada, and Oregon wrote in a comment letter on the proposed rule.

California attorney general Xavier Becerra separately filed a similar letter in September.

“Not only does it violate several laws, it threatens the quality of care offered in nursing homes and other long-term care facilities,” Becerra wrote. “If finalized in substantially similar form, the Rule would harm an ever-growing population of nursing home residents and states like California that have prioritized the safety of our residents and the public health.”

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