Nursing Facilities Heading Toward Enforcement “Perfect Storm”

Tom Herrmann, JD, is a recognized expert on nursing home compliance. When asked about the state of legal and regulatory actions in that sector, he noted that nursing home compliance has a trajectory of regulatory and enforcement initiatives that could be characterized as a “Perfect Storm.” He cited the following as examples:

1. The November 28, 2019 deadline that mandates that skilled nursing facilities and nursing homes adopt and implement an effective compliance and ethics program is rapidly approaching, and these requirements will be a condition of Medicare/Medicaid participation.
2. State survey agencies are gearing up to begin assessing facility compliance regarding  implementation of an effective compliance and ethics program.
3. CMS is focused on “problematic” nursing facilities that are included in their “Special Focus Facility” (SFF) list by increasing the frequency of survey teams visits. These visits could lead to more stringent enforcement actions on violators that include civil monetary penalties (fines) or termination from the Medicare and Medicaid programs. CMS is monitoring the SFF list facilities for: (a) improvement and graduation off the SFF; (b) termination from participation in Medicare/Medicaid programs; (c) extension of time on the SFF because of some progress or change of ownership.
4. Heightened Congressional interest has pressured CMS to be more active in overseeing nursing facilities. Recently, Congress forced CMS to produce their “secret list” of 435 nursing facilities found to be “underperforming.”
5. The OIG  released a new report on incidents of nursing facility patient abuse and neglect, which calls for CMS to take more action to prevent these problems.
6. The GAO has also pressured CMS in its recent report on CMS gaps in oversight of nursing facilities. The report calls for CMS to achieve better results from the state survey agencies conducting nursing facility oversight.
7. Along with this regulatory action, the DOJ has increased enforcement against nursing facilities with claims filed against them for services that were substandard or worthless.

For more information, contact Tom Herrmann at (703) 535-1410, [email protected].

About the Author

Richard P. Kusserow established Strategic Management Services, LLC, after retiring from being the DHHS Inspector General, and has assisted over 3,000 health care organizations and entities in developing, implementing and assessing compliance programs.