HHS Revises The Nursing Facility Special Focus Facility Program – Healthcare

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On October 21, 2022, the Biden-Harris Administration announced the Centers for Medicare & Medicaid Services (CMS) is revising the Special Focus Facility (SFF) Program to increase “inspection and oversight” of “the nation’s poorest nursing facilities.”1

According to the Social Security Law (UU),2 CMS implements the SFFProgram “for the implementation of requirements for skilled nursing facilities that the Secretary has identified as having substantially failed to meet the applicable requirements” of the Act. According to CMS’ announcement, the revision of the SFF program is part of “cracking down on enforcement of the nation’s poorest-performing nursing homes” to address two issues that put nursing home residents at risk. The first concern relates to SFFs failing to demonstrate the progress required to “graduate” from the program. The second concern relatesto SFFs that, after graduating from the program, “regress” to a noncompliance.

Whether or not a facility is identified as a potential SFF is based on scores derived from the last three standard health survey cycles and the last three survey years.3 In addition, the revised SFFProgram will require state survey agencies (SAs) to consider facility staffing levels, among other factors, when deciding which SFF “candidates” are designated as special focus facilities. Accordingly, at a time when staffing shortages are affecting nursing facilities across the nation, SFF candidates who face the most difficult staffing challenges may be more likely to be designated as SFFs.

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The revisions to the SFF Program also require that when a facility is selected as an SFF, the SA must provide written notice to the facility within five business days, and that notice must include at least the information specified in the CMS model notice letter.4 Along with the notification letter, the SA must also conduct a teleconference with the SFF “responsible party” (ie, nursing facility owner, administrator, director of nursing, medical director, other facility leaders) to discuss the actions the facility must take to pass. from the program and what can cause the facility to be terminated from Medicare and / or Medicaid participation. The revisions also state that these teleconferences must cover the seriousness of the facility’s SFF status designation; compliance and the importance of facility culture; resources available to facilities for quality improvement; and how a facility’s lack of demonstrated good faith efforts to improve quality may be a factor in whether CMS decides to exercise discretionary authority to terminate its participation in the Medicare and/or Medicaid programs.

The revised SSF Program also provides for progressive enforcement. In particular, for SFF, SA will conduct a standard health survey at least once every six months, and continued failure of SFF to meet program requirements will result in “stronger enforcement actions” – such as higher civil monetary penalties or refusal to pay for new admissions . The revisions also state that SFF’s good faith efforts (or lack thereof) to improve will also factor into progressive enforcement decisions.

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A further revision specifies that to graduate from the SFF Program, the SFF must complete two consecutive standard health surveys with 12 or fewer deficiencies cited in the scope and severity level (S/S) of “E” or less in each survey. SFF will not pass if the following occurs:

  • Any standard health survey results in deficiencies cited at an S/S grade of “F” or higher, or

  • Any life safety survey or emergency preparedness survey results in a deficiency cited at S/S level “G” or higher; and

  • 13 or more total deficiencies cited in any survey (standard health, LSC, EP, or complaint);

  • Intervening survey complaints with 13 or more total deficiencies or deficiencies cited at the level of S / S “F” or higher.

Facilities also cannot graduate from the SFF program if there is a pending triaged complaint survey at IJ, or Non-IJ High, or until they have returned to substantial compliance. Facilities and deficiencies cited in the S/S of IJ in two surveys (standard health, complaints, LSC, or EP) while in the SFF program will be considered for discretionary termination. Likewise, if the facility does not meet the graduation criteria after the third standard health survey, the SA must schedule a conference call with CMS to discuss the situation, and CMS has the authority to use discretionary termination or continue to collaborate with the SA to focus. in an effort to improve the compliance of facilities.

Finally, the revision states that CMS will “closely monitor” facilities that graduate from the SFF program for three years after graduation. For SFF program graduates who relapse into poor compliance, CMS may use its authority to impose enhanced enforcement options, which may include discretionary termination from Medicare and/or Medicaid programs.

Foot notes

1 CMS, Press Release, Biden-Harris Administration Strengthens Oversight of Nations’ Poorest-Performing Nursing Homes (Oct. 21, 2022), https://www.cms.gov/newsroom/press-releases/biden-harris-administration- strengthens-supervising-poor-nation-running-nursing homes.

2 Sec. 1819(f)(8) [42 U.S.C. § 1395i–3] and Sec. 1919(f)(10)[42 U.S.C. § 1396r].

3 CMS, Revisions to the Specially Focused Facility (SFF) Program, Ref: QSO-23-01-NH (Oct. 21, 2022), https://www.cms.gov/files/document/qso-23-01- nh. pdf; Design for Care Compare Ratings Five-StarQuality Home Nursing Rating System: Users’ Technical Guide (Oct. 2022), https://www.cms.gov/medicare/provider-enrollment-and-certification/certificationandcomplianc/downloads/usersguide.pdf.

4 The CMS model letter is available as Appendix B at https://www.cms.gov/files/document/qso-23-01-nh.pdf

Originally Published by AHLA’s Post-Acute and Long Term Services Practice Group.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought regarding your specific circumstances.

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