CMS Issues QSO on Phase 3 Requirements of Participation for Nursing Homes

On June 29^th, the Centers for Medicare and Medicaid Services (CMS) released several documents announcing clarifications and enhancements of the Phase 2 Requirements of Participation (RoP) for nursing homes and interpretive guidance for implementation of the Phase 3 RoP. These standards will be surveyed against starting on Oct. 24, 2022. Members will recall that these regulations were originally adopted back in 2016, with implementation planned in three phases. Phase 2 took effect in November 2017, and Phase 3 took effect in 2019 without interpretive guidance. Thus, these are not new regulations; nursing homes have been subject to the Phase 3 RoP since 2019. However, the absence of interpretive guidance has limited the ability of survey agencies (SAs) to assess compliance with the Phase 3 requirements.

The documents released on June 29^th include:

• QSO-22-19-NH, which outlines the significant revisions to Chapter 5 of the State Operations Manual (SOM);
• CMS fact sheet, which provides a quick reference for the upcoming changes; and
• Revised long term care surveyor guidance, which provides several updated guidance documents the surveyors will use when surveying on these new RoP.

Significant revisions to the SOM are summarized below:

• Abuse and Neglect: CMS has made significant revisions to the guidance for Abuse/Neglect in Appendix PP. CMS is providing clarifications to surveyors about facility-reported incidents (FRIs), including examples of cases and what information should be reported.
• Admission, Transfer, and Discharge: CMS clarified that when a facility initiates a discharge while the resident is in the hospital following an emergency transfer (i.e., does not allow the resident to return to the nursing home), the facility must have evidence that the resident’s status at the time the resident seeks to return to the facility (not at the time the resident was transferred for acute care) meets one of the discharge criteria at §483.15(c)(i). CMS also clarified guidance related to the requirement to provide notice of a transfer or discharge to ensure that residents and their representatives receive complete and accurate information in the notice of transfer and discharge.
• Mental Health/Substance Use Disorder (SUD): CMS has identified a need to improve guidance related to meeting the unique health needs of residents with mental health needs and SUD. CMS clarified that when facilities care for residents with these conditions, policies and practices must not conflict with resident rights or other RoP. CMS further clarified that facility staff should have knowledge of signs and symptoms of possible substance use and be prepared to address emergencies (e.g., an overdose) by increasing monitoring, administering naloxone, initiating cardiopulmonary resuscitation (CPR) as appropriate, and contacting emergency medical services. CMS also provided resources and non-pharmacological interventions, specific to residents living with mental disorders or SUD, to assist providers in identifying alternative approaches to care to support this population.
• Payroll-Based Journal (PBJ)/Nurse Staffing: CMS is adding guidance that incorporates the use of PBJ staffing data to direct surveyors to investigate potential non-compliance with CMS’ nurse staffing requirements, such as insufficient staffing, lack of a registered nurse for eight hours each day, or lack of licensed nursing for 24 hours a day. CMS also clarified the intent of the requirements for F-tags at §483.35, Nursing Services, by adding examples for deficiency categorization. Additionally, CMS added guidance at §483.70(q), F-tag 851, to provide guidance to surveyors to cite non-compliance with the PBJ reporting requirements.
• Resident Rights: CMS revised guidance related to visitation restrictions by importing parts of its recent COVID-19 guidance to prevent community-associated infection or the spread of communicable disease in response to the current public health emergency (PHE). The revised guidance stresses the importance of adhering to the core principles of infection prevention to reduce the risk of infectious disease transmission during visits.
• Potential Inaccurate Diagnosis and/or Assessment: CMS revised guidance to investigate situations where practitioners or facilities may have potentially inaccurately diagnosed and/or coded a resident with schizophrenia in the resident assessment instrument. An inaccurate diagnosis of schizophrenia has been identified as an issue related to the unnecessary prescribing of antipsychotic medications and artificially improving a facility’s performance on the long-stay antipsychotic quality measure. Guidance was revised for multiple F-tags, including requirements in §483.20(g), F-tag 641; §483.21(b)(3)(i), F-tag 658; and §483.45(e)(1), F-tag 758.
• Pharmacy Services: CMS revised guidance addressing medications not defined as psychotropic medications, but that affect brain activity and can also have adverse consequences. The use of these “other medications” is subject to the psychotropic medication requirements if the documented use appears to be a substitution for another psychotropic medication rather than for the original or approved indication. CMS also revised guidance for the psychotropic medication gradual dose reduction (GDR).
• Infection Control: Revisions include guidance for implementing Phase 3 regulations that require nursing homes to have an Infection Preventionist (IP) who has specialized training onsite at least part-time to effectively oversee the facility’s infection prevention and control program (IPCP). This revision will strengthen general infection control guidance to address frequently cited issues such as hand hygiene, transmission-based precautions (TBP), and surveillance of infectious diseases. While the requirement is to have an IP at least part-time, facilities are responsible for an effective IPCP and should ensure that the role of the IP is tailored to meet the facility’s needs. With emerging infectious disease such as COVID-19, CMS believes that the role of the IP is critical in the facility’s efforts to mitigate the onset and spread of infections. Additionally, the Centers for Disease Control and Prevention (CDC) and CMS developed specialized IP training to include topics such as TBP and Antibiotic Stewardship programs (ASP). To increase survey efficiency, CMS incorporated the review of COVID-19 requirements to the survey software for the following deficiencies: F-tag 885 (Reporting COVID-19 data to residents, their representatives, and families), F-tag 886 (COVID-19 testing of residents and staff), F-tag 887 (offer/educate on COVID-19 immunization), and F-tag 888 (health care staff vaccination requirements).
• Arbitration Requirements: On July 18, 2019, CMS finalized new requirements related to binding arbitration agreements that went into effect on Sept. 16, 2019. The new requirements prohibit long term care facilities from requiring residents to sign binding arbitration agreements as a condition of admission to the facility, or as a requirement to continue to receive care at that facility. The arbitration guidance also addresses other requirements, such as allowing residents to choose a neutral arbitrator, and that facilities must make the final arbitrator’s decision available for review by CMS or its designee.
• Psychosocial Outcome Severity Guide: CMS also revised the Psychosocial Outcome Severity Guide and F-tag 600 to enhance oversight of compliance related to ensuring a resident’s right to be free from abuse. These revisions include:
  • Clarifying how to apply the reasonable person concept;
  • Clarifying examples under each severity level; and
  • Listing certain instances of abuse where, because of the action itself, the deficiency would be assigned to certain severity levels.

The Psychosocial Outcome Severity Guide is located in the Nursing Home Survey Resources Folder here.

• Chapter 5: State Investigations of Complaint Allegations: The revised guidance in Chapter 5 strengthens the oversight of nursing home complaints and FRIs and aims to improve consistency across the SAs in their communication to complainants. The revised guidance includes the following:
  • Ensures that SAs have policies and procedures that are consistent with federal requirements;
  • Revises timeframes for investigation to ensure that serious threats to residents’ health and safety are investigated immediately;
  • Requires that allegations of abuse, neglect, and exploitation are tracked in CMS’ system;
  • Requires that the SA report all suspected crimes to law enforcement if they have not yet been reported; and
  • Removes the term “substantiate” from the SOM and instructs surveyors to specify whether non-compliance was identified during a complaint investigation.

Exhibit 23 of the SOM was revised to conform to the changes in Chapter 5. In addition, exhibits 358 and 359 provide sample templates that may be used for FRIs. These templates ensure that SAs have the information needed to review and prioritize the incident for investigation. CMS notes that SAs are experiencing a backlog of surveys, and it will establish a target implementation date for meeting the new investigation timelines at a later date, depending on the status of the PHE and/or unique circumstances occurring in the SAs.

• Other Revisions: CMS is providing guidance for other Phase 3 requirements, such as Trauma-Informed Care, Compliance and Ethics, and Quality Assurance Performance Improvement (QAPI). These revisions can all be found in Appendix PP of the SOM.

CMS is incorporating the revised guidance into the Long Term Care Survey Process (LTCSP) software application, and surveyors will use the new version of the software for surveys beginning on Oct. 24, 2022. CMS is also updating other survey documents, including the Critical Element (CE) Pathways, which are used for investigating potential care areas of concern. The LTCSP will assist the survey team in the identification of low staffing concerns by utilizing PBJ data. CMS indicated that it has posted training on this guidance for surveyors and providers in the Quality, Safety, and Education Portal (QSEP).

In addition to these changes to the SOM and the survey process, the QSO urges facilities to reduce the number of residents occupying a single room. It encourages facilities to “consider making changes to their physical environment to allow for a maximum of double occupancy in each room” and “to explore ways in which they can allow for more single occupancy rooms for residents.”

LeadingAge NY will be working with LeadingAge National on developing training and resources for members and will keep members apprised as more information becomes available.

Contact: Elliott Frost, efrost@leadingageny.org; Mark Kepner-Clough, mkepner-clough@leadingageny.org; or Amy Nelson, anelson@leadingageny.org. All can be reached at 518-867-8383.