On October 21, 2022, the Centers for Medicare & Medicaid Services (CMS) published revisions to the Special Focus Facility (SFF) program, effective immediately. All appropriate staff are to be advised of the revisions within 30 days.
According to CMS, while the SFF program has helped facilities improve their compliance and quality, there are some facilities that have not seen the same results. These facilities fail to demonstrate the improvements needed to graduate from the program and remain in the program for a prolonged period of time. Additionally, there are some that graduate from the program only to see their compliance and quality regress later (commonly known as “yo-yo” noncompliance). Both of these scenarios place nursing home residents’ health and safety at risk. Therefore, CMS has revised the SFF program to protect and improve the quality of care that residents living in these facilities receive.
CMS is informing State Survey Agencies (SAs) to consider a facility’s staffing levels data when selecting SFFs from the SFF candidate list. For example, if an SA is considering two SFF candidates with a similar compliance history, CMS recommends selecting the facility with lower staffing (staffing star rating or staffing ratio) as the SFF. SAs may also take into consideration other relevant findings, like previous complaint findings or enforcement actions.
CMS may impose enforcement actions for failure to demonstrate sustained improvement or demonstrate a good faith effort to improve quality. CMS will continue to explore how to use all actions to improve performance or terminate SFFs from the Medicare and/or Medicaid programs for those SFFs that fail to demonstrate compliance.
While a nursing home is in the SFF Program, the SA will conduct a standard health survey at least once every six months, and recommend progressively stronger enforcement actions in the event of continued failure to meet the requirements for participation with the Medicare and/or Medicaid programs. The timing of these standard health surveys are to be as unpredictable as possible.
If the results of any survey reveal that the facility continues to practice a level of care that has resulted in harm to residents (scope and severity of G, H, I) or put residents in Immediate Jeopardy (IJ) (scope and severity of J, K, L) then the SA must notify the CMS locations immediately. The CMS location will consider a facility’s efforts to improve performance (or lack thereof) when considering applicable enforcement remedies. For example, an SFF with continued noncompliance and little or no demonstrated efforts to improve performance will have more severe enforcement remedies than facilities that have taken aggressive actions to bring systemic change and improve performance. CMS will also consider facilities’ efforts to improve when considering discretionary termination from Medicare and/or Medicaid programs.
CMS will closely monitor graduates from the SFF program for a period of three years to ensure improvements are sustained. For SFFs that graduate but continue to demonstrate poor compliance identified on any survey (e.g., actual harm, substandard quality of care, or immediate jeopardy deficiencies), CMS may use its authority to impose enhanced enforcement options, up to, and including discretionary termination from the Medicare and/or Medicaid programs.
If the SFF has not met the graduation criteria following the third standard health survey, the SA must schedule a conference call with the CMS location to discuss the efforts made by the facility towards improvement, the reasons for noncompliance, and the likelihood of the facility achieving sustained compliance. CMS has the authority to either use discretionary termination or continue to collaborate with the SA to focus on facility improvement. The SA must discuss with the CMS location, at a minimum, the extent to which the facility has demonstrated improved compliance.
CMS is also revising the monthly SFF postings here. These listings are being updated to reflect a listing of all SFFs, including the number of months spent in the SFF program, their most recent standard health survey findings, recent terminations, and facilities that recently graduated from the SFF program.
Compliance Perspective
Issue
Sections 1819(f)(8) and 1919(f)(10) of the Social Security Act require CMS to conduct a Special Focus Facility (SFF) program which focuses on nursing homes that have a persistent record of noncompliance leading to poor quality of care. The program requires the persistently poorest performing facilities selected in each state to be inspected no less than once every six months and that increasingly severe (progressive) enforcement actions are taken when warranted. CMS expects that selected facilities will rapidly make and sustain improvements so that they graduate from the program.
Discussion Points
- Review policies and procedures regarding fiscal responsibility for maintaining staffing levels and the resources needed to provide quality care for residents.
- Train staff regarding residents’ rights to be free from abuse, neglect, and exploitation and to report any suspected violation to their supervisor or through the Hotline.
- Periodically audit to determine if staffing levels are adequate and that only competent and appropriate staff members are assigned to provide care and supervision for residents.
*This news alert has been prepared by Med-Net Concepts, LLC for informational purposes only and is not intended to provide legal advice.*
