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Major Changes in Nursing Home Regulatory Arena Go Into Effect Today

November 28, 2017

November 28 is a big day in the world of nursing home regulations:  Phase 2 regulations go into effect, along with a new survey process, the “freezing” of health inspection ratings,  and revised interpretive guidelines. At the same time, an 18-month  moratorium on full enforcement of certain Phase 2 requirements begins.

Phase 2 Regulations
Today, nursing home requirements categorized as “Phase 2” become effective. The implementation timeframe includes three phases:  Phase 1- November 28 2016; Phase 2- November 28, 2017;  and Phase 3- November 28, 2019.  In response to provider concerns about insufficient time to come into compliance with the revised regulations, CMS decided to phase in the requirements and gave nursing homes up to three years to comply.

Even with this additional time, the nursing home industry lobbied hard for a delay of Phase 2, including asking many members of both the House and Senate to sign a letter to CMS requesting this delay. Consumer Voice and other advocacy organizations strongly opposed postponing Phase 2 implementation. In a letter signed by 240 national, state and local organizations and more than 950 individuals, Consumer Voice wrote, “Residents should not have to wait any longer for these - and other - protections. Stronger regulations and timely implementation are needed now more than ever.”  Advocates achieved a major victory when CMS decided not to grant an extension of time.

Phase 2 requirements include reporting suspicion of a crime to law enforcement, appropriate treatment and services for residents with dementia, a facility assessment, a baseline care plan, an antibiotic stewardship program, policies regarding loss and replacement of dentures; and more.

Consumer Voice will soon be issuing a "Summary of Key Changes" for Phase 2.

Moratorium on full enforcement of specific Phase 2 standards
Today is also the day that a moratorium on the use of certain enforcement remedies for a number of Phase 2 regulations is imposed.  For a period of 18 months, a directed plan of correction or a directed in-service training are the only remedies that can be imposed on the following regulations:

  • F655 (Baseline Care Plan); §483.21(a)(1)-(a)(3)
  • F740 (Behavioral Health Services); §483.40
  • F741 (Sufficient/Competent Direct Care/Access Staff-Behavioral Health); §483.40(a)(1)-(a)(2)
  • F758 (Psychotropic Medications) related to PRN Limitations §483.45(e)(3)-(e)(5)
  • F838 (Facility Assessment); §483.70(e)
  • F881 (Antibiotic Stewardship Program); §483.80(a)(3)
  • F865 (QAPI Program and Plan) related to the development of the QAPI Plan; §483.75(a)(2) and,
  • F926 (Smoking Policies); §483.90(i)(5)

No civil money penalties (CMPs), discretionary denials of payment for new admissions (DPNAs) and discretionary termination can be issued for deficiencies of any of these Ftags.  Note: the moratorium does not include remedies that are required by federal law such as the Denial of Payment for New Admissions (DPNA) if the facility has not achieved compliance within 3 months of the finding; Termination after 23 days for immediate jeopardy; and Termination after 6 months for non-immediate jeopardy noncompliance.

CMS states that the purpose of this delay is to educate facilities about specific Phase 2 standards. Consumer Voice and other advocacy groups fought this moratorium because it will likely impact full implementation of these requirements.

To read the memo issued by CMS on this moratorium, go to: http://theconsumervoice.org/uploads/files/issues/Survey-and-Cert-Letter-18-04.pdf.

Survey Process
Beginning today, CMS is launching a new survey process referred to as LTCSP (Long-Term Care Survey Process).  According to CMS, the LTCSP combines “the best” of both the Traditional and Quality Indicator Survey processes into a single nationwide survey process. The process will be computer-based.  To learn more about this new process, go to:

  1. CMS’ website at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Nursing-Homes.html and click on "New Long-term Care Survey Process - Slide Deck and Speaker Notes

  2. The Integrated Surveyor Training Website (https://surveyortraining.cms.hhs.gov/index.aspx)

In the past, the survey protocol was laid out in Appendix P of the State Operations Manual.  CMS has replaced Appendix P with a LTCSP procedure guide which will be what surveyors will follow when conducting a standard survey. To access the LTCSP Procedure Guide and Survey Resources, go to: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Nursing-Homes.html.

Health inspection five-star rating
Because the protocol is different under the new survey process, CMS decided that consumers and others would not be comparing “apples to apples” if facilities surveyed under the new process were compared to those surveyed under the prior process. As a result, CMS will be holding constant, or “freezing,” the health inspection star rating for health inspection surveys and complaint investigations conducted on or after November 28, 2017.  Consumer Voice will provide more information about changes to Nursing Home Compare and the five-star rating system soon.

Interpretive Guidelines
Lastly, revised interpretive guidelines for the federal regulations are effective today. The purpose of the guidelines is to interpret and clarify the regulations; the guidance helps explain the regulations and what the facility should be doing if it is in compliance. To access the regulations with the revised guidance, go to: http://theconsumervoice.org/uploads/files/issues/Revised_Interpretive_Guidelines_with_Clickable_TOC.pdf.


Consumer Voice is developing materials and resources to help advocates understand the changes and apply this new information to their advocacy and consumer education.

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