CMS Revamps Nursing Home Programs and Bolsters Enforcement

By: Daniel Ayyash, Wachler & Associates, P.C.
2/10/2023

Overview

On February 28, 2022, the Biden-Harris Administration announced new efforts by the Department of Health & Human Services (HHS) through its Centers for Medicare & Medicaid Services (CMS) to improve the quality and safety of nursing homes, protect vulnerable residents and the healthcare heroes who care for them, and crack down on bad actors. The Administration expressed its commitment to these urgent actions as its first steps toward fulfilling a broader goal to ensure taxpayer dollars go towards the safe, adequate, and respectful care seniors and people with disabilities deserve – not to the pockets of predatory owners and operators who seek to maximize their profits at the expense of vulnerable residents’ health and safety. To carry out these reforms, CMS is implementing several new strategies and revamping compliance and enforcement programs across the board.

Ensuring Taxpayer Dollars Support Nursing Homes That Provide Safe, Adequate, and Dignified Care

CMS is launching four new initiatives to ensure that residents get the quality care they need, and that taxpayers pay for. These initiatives aim to help ensure adequate staffing, dignity and safety in their accommodations, and quality care.

• Establish a Minimum Nursing Home Staffing Requirement: CMS intends to propose minimum standards for staffing adequacy that nursing homes must meet. CMS is conducting a new research study to determine the level and type of staffing needed to ensure safe and quality care and plans to issue proposed rules in Spring 2023. Establishing a minimum staffing level ensures that all nursing home residents are provided safe, quality care, and that workers have the support they need to provide high-quality care. Nursing homes will be held accountable if they fail to meet this standard.
• Reduce Resident Room Crowding: In certain settings, multi-occupancy rooms increase residents’ risk of contracting infectious diseases, including COVID-19. CMS intends to implement methods to accelerate phasing out rooms with three or more residents and to promote single-occupancy rooms.
• Strengthen the Skilled Nursing Facility (SNF) Value-Based Purchasing (VBP) Program: The SNF-VBP program awards incentive funding to facilities based on quality performance. CMS has begun to measure and publish staff turnover and weekend staffing levels, metrics which closely align with the quality of care provided in a nursing home. CMS intends to propose new payment changes based on staffing adequacy, the resident experience, and how well facilities retain staff.
• Reinforce Safeguards against Unnecessary Medications and Treatments: Thanks to CMS’s National Partnership to Improve Dementia Care in Nursing Homes, the nation has seen a dramatic decrease in the use of antipsychotic drugs in nursing homes in recent years. However, inappropriate diagnoses and prescribing still occur at too many nursing homes. CMS is launching a new effort to identify problematic diagnoses and refocus efforts to continue to bring down the inappropriate use of antipsychotic medications.

Enhancing Accountability and Oversight

Federal taxpayer dollars should not flow to nursing homes that are unsafe. For over seven years, funding to conduct health and safety inspections has remained stagnant while the number of complaints about nursing homes has surged. In order to adequately fund health and safety inspection activities at nursing homes, the Biden Administration will request that Congress provide almost $500 million to CMS, a nearly 25% increase.

Substantial revisions are also being made to the Special Focus Facility (SFF) program, which identifies and addresses the poorest-performing nursing homes in the country for increased scrutiny in an effort to immediately improve the care they deliver. The SFF program currently requires more frequent compliance surveys for program participants, which must pass two consecutive inspections to “graduate” from the program. The SFF program is being overhauled to improve care more quickly for the affected residents, including changes that will make its requirements tougher and more impactful. CMS is making changes that allow the program to scrutinize more facilities, by moving facilities through the program more quickly. Facilities that fail to improve will face increasingly larger enforcement actions, which may include termination from participation in Medicare and Medicaid. Additionally, CMS will expand the instances in which it imposes financial penalties and other enforcement sanctions against poor-performing facilities based on desk reviews of data submissions, which will be performed in addition to on-site inspections.

One driving factor for this increased scrutiny is complicated ownership structures that impede oversight of nursing facilities. To combat this, the Biden Administration is also seeking to give CMS new authority to require minimum corporate competency to participate in Medicare and Medicaid programs, enabling CMS to prohibit an individual or entity from obtaining a Medicare or Medicaid provider agreement for a nursing home (new or existing) based on the Medicare compliance history of their other owned or operated facilities (previous or existing).

Increasing Transparency

In order to carry through on its mission to hold owners and operators accountable for poor nursing home performance, CMS will improve the public transparency of facility ownership to better safeguard nursing home residents. A new database of nursing home owners and operators is being developed by CMS that will track and identify owners and operators across states to highlight previous problems with promoting resident health and safety. To bolster public access to information, CMS will implement Affordable Care Act requirements regarding transparency in corporate ownership of nursing homes, including by collecting and publicly reporting more robust corporate ownership and operating data. Additionally, CMS is introducing a range of initiatives to improve Nursing Home Care Compare, the rating website designed to help families pick a facility for their loved ones, such as publishing new measures which allow users to consider nursing home staff turnover, weekend staffing levels, and other important factors in their decision-making process.

Creating Pathways to Good-paying Jobs with the Free and Fair Choice to Join a Union

Nurse aide training should be affordable and free from unnecessary financial barriers. To this end, CMS is establishing new requirements to ensure nurse aide trainees are notified about their potential entitlement to training reimbursement upon employment and working with states to ensure reimbursement is being distributed properly. CMS is also developing a template to assist and encourage states requesting to tie Medicaid payments to clinical staff wages and benefits, including additional pay for experience and specialization. Moreover, CMS is collaborating with the Department of Labor to engage external entities to conduct a robust nationwide campaign to recruit, train, retain, and transition workers into long-term care careers, with pathways into healthcare careers like registered and licensed nurses. Activities in this area include training intermediaries, registered apprenticeship programs, labor-management training programs, and labor unions.

Ensuring Pandemic and Emergency Preparedness in Nursing Homes

The Biden-Harris Administration has provided millions of COVID-19 tests to Medicare- and Medicaid-certified nursing homes and has ensured that staff and residents across long-term care facilities have access to vaccinations and booster shots. HHS has committed to providing continuing support for testing as a key mitigation strategy, as well as continue to promote access to on-site vaccination clinics. Other ongoing efforts include integrating vaccinations into routine services, incentivizing vaccinations through provider qualify payment programs, and continue to provide a full range of resources to continue to build confidence in the vaccine.

Moreover, the pandemic has taught the healthcare industry many lessons and explicitly underscored the need for resident-centered updates to nursing homes’ requirements of participation in Medicare and Medicaid. Thus, CMS will integrate new lessons on standards of care into nursing home requirements around fire safety, infection control, and other areas, with a focus on equity. In sum, both the pandemic and the increase in natural disasters have demonstrated how critical proactive emergency preparedness is to keeping residents of nursing homes safe. These lessons and realizations should not be overlooked and should serve as catalysts for significant changes in the healthcare industry as a whole. In planning for the future, CMS is examining and considering changes to emergency preparedness requirements and is working to bolster the resiliency of the healthcare sector as part of an Administration-wide effort to be ready for the next pandemic and the next weather-related emergencies.