Biden Administration Takes Steps to Reinforce Nursing Home Safeguards - McDermott Will & Emery

Biden Administration Takes Steps to Reinforce Nursing Home Safeguards

Overview


In connection with the Biden-Harris administration’s stated goals of improving safety, transparency, accountability and quality in nursing homes, the US Centers for Medicare & Medicaid Services (CMS) have announced new actions to further nursing home safeguards. These actions include targeting the inappropriate use of antipsychotic medications and revamping their Special Focus Facility (SFF) Program to improve overall nursing home quality.

In Depth


In the last quarter of 2022 and the first quarter of 2023, CMS has taken material steps to advance the Biden-Harris administration’s intentions of promoting nursing home safety, transparency, accountability and quality. Specifically, on October 21, 2022, CMS announced revisions to its Special Focus Facility (SFF) Program, which focuses on the country’s poorest-performing nursing facilities. And on January 18, 2023, CMS announced new actions to help reduce inappropriate use of antipsychotic medications in the senior services industry. We review these developments in this alert.

I. Strengthening Nursing Home Safety and Transparency

To strength nursing home safety and transparency, CMS is adjusting their quality measure ratings of facilities that are inappropriately coding residents as having schizophrenia. CMS is also posting citations under dispute on the “Nursing Home Care Compare” website to allow individuals and families more access to information.

1. CMS to Reinforce Safeguards against Unnecessary Medications and Treatments

To continue progress toward decreasing inappropriate use of antipsychotic medications in nursing homes, CMS announced that, beginning in January 2023, they will be conducting targeted and off-site audits to better understand how and if nursing homes are utilizing codes for patients with a schizophrenia diagnosis. Historically, nursing home residents that have been misdiagnosed with schizophrenia are at risk of overuse and misuse of antipsychotic drugs and overall poor quality of care.

CMS uses the Five-Star Quality Rating System to rate nursing homes, using three categories: health inspections, staffing and quality measures. The use of antipsychotic medication is one indicator, among others, used to assess the quality of care that nursing homes provide residents. However, CMS identified a gap in this indicator, as it excluded residents that have been diagnosed with certain psychiatric illnesses such as schizophrenia, Huntington’s disease or Tourette syndrome. CMS is addressing this gap by flagging facilities that display a pattern of inaccurately coding a resident as having schizophrenia. CMS will then downgrade the quality measure rating for any audits that reveal inaccurate coding practices, a step that will negatively impact such facilities’ overall ratings. After monitoring the flagged facilities and determining whether any quality of care issues occurred, CMS will have the option to reverse downgrades.

CMS also plans to make public the results of its schizophrenia diagnosis code audits, thereby advancing the administration’s objective of increasing transparency and quality of nursing home care.

2. CMS to Post Citations under Dispute on Care Compare

CMS also plans to increase transparency by disclosing citations that facilities are actively disputing. Nursing homes can dispute citations through the Informal Dispute Resolution (IDR) process. When CMS imposes a civil monetary penalty, nursing homes can request an Independent IDR (IIDR). Currently, when a facility is involved with IDR or IIDR and disputing a survey deficiency, the deficiency is not made publicly available. The deficiency is only posted after the investigation is complete, which typically averages around 60 days but can last up to six months. CMS acknowledges that deficiencies range in severity and may be determined to be a non-issue after investigation; however, circumstances may also include severe instances of non-compliance, such as when residents of a facility could be at risk for serious injury, harm, impairment or even death.

Rather than waiting for an investigation’s completion, CMS will instead post citations to Nursing Home Care Compare immediately upon issuance, adding a flag if the deficiency is disputed. By displaying deficiencies before the dispute process is complete, CMS is furthering its efforts to provide timely and relevant information to patients and families so that they can make more informed choices while evaluating a facility.

The up-to-date information under this initiative began appearing on Nursing Home Care Compare on January 25, 2023.

II. Strengthening Oversight of Poorest-Performing Nursing Homes

In addition to the most recent actions described above, CMS also has implemented changes to its Special Focus Facility (SFF) Program to increase scrutiny and hold facilities accountable for substandard safety, quality and care for residents.

1. Making Requirements Tougher

When CMS and state regulatory agencies survey nursing homes and identify deficiencies, the facility is required to correct cited issues or risk disqualification from Medicare and Medicaid. Deficiencies are not rare, with most nursing homes needing to fix six to seven issues within a timely basis. Some nursing homes have more difficulties than others in maintaining consistent compliance practices and routinely demonstrate repeated cycles of serious deficiencies. To assist these facilities, CMS implemented the SFF Program for those with the highest number of deficiencies —particularly, those scoring high in scope and severity. Each state identifies between five and 30 such facilities to participate in the SFF program, during which the facilities are inspected twice annually and provided with recommendations for improvement. When appropriate, CMS will impose progressive enforcement sanctions, including civil monetary penalties and denied claims, until the facility graduates from the SFF Program or is excluded from further participation.

Effective October 21, 2022, CMS began efforts to strengthen the criteria for graduation from the SFF Program. To that end, CMS has decided that facilities cannot leave the SFF Program without demonstrating systemic improvements in quality. This includes achieving two consecutive health surveys with 12 or fewer deficiencies scored at a scope and severity of “E” or lower. A facility will not graduate if there are more than 13 deficiencies at any level or if any of the deficiencies are classified as “F” level or higher, as those deficiencies put a resident at risk for serious harm, injury or death.

2. Enforcement Actions for Facilities That Do Not Improve

To avoid a facility remaining in the SFF Program for a prolonged period, CMS is considering discretionary termination from Medicare and/or Medicaid programs for all facilities cited with a severe or immediate jeopardy deficiency on any two surveys while the facility is in the SFF Program.

CMS is also planning to impose harsher enforcement remedies for SFF Program participating facilities that have continued noncompliance and little to no improvement. CMS has historically retained discretion on decisions regarding graduation and termination based on individualized factors from each facility, and it will explore its options while weighing a facility’s good-faith effort to improve.

3. Incentivizing Sustainable Improvements

CMS will be closely monitoring graduates from the SFF Program for up to three years to ensure any improvements that were targeted during the program are sustained. For nursing home facilities that graduate and proceed to demonstrate noncompliance, such as poor quality of care, actual harm or severe deficiencies, CMS may use increased enforcement action to terminate the facility from the Medicare and/or Medicaid programs. Relatedly, nursing homes that participate in the SFF Program for three surveys without graduating will be required to discuss the efforts that the facility made towards achieving its goals and the reasons for failing to succeed. Depending on the likelihood of resolving cited deficiencies and stabilizing performance, CMS may use its discretion to terminate the facility’s participation in Medicare and Medicaid or continue working with the facility to improve its performance.

To further incentivize facilities and ensure transparency, CMS will maintain a continuous listing of facilities participating in the SFF Program, the duration of their participation and their most recent survey results. Facilities that have graduated from the SFF Program may be downloaded from the CMS website for three years after their graduation; however, their designation as an SFF Program participating facility will be removed after graduation.