In February 2022, President Biden and the White House announced a comprehensive, multi-faceted nursing home reform agenda. While the Centers for Medicare & Medicaid Services (CMS) has taken steps to implement many parts of the agenda, it has largely ignored the directive to strengthen the enforcement of standards of care for nursing facilities. Instead it has allowed Trump Administration policies which explicitly overturned Obama Administration policies and otherwise reduced enforcement, to remain in place. The Center for Medicare Advocacy calls on CMS to strengthen enforcement and protect residents.
Weakened Enforcement Policies Remain In Place:
- In CMS, “Clarification regarding Nurse Aide Training and Competency Evaluation Program (NATCEP/CEP) Waiver and Appeal Requirements,” S&C: 18-02-NH (Oct. 27, 2017), CMS revised guidance to delay, until after appeals, a facility’s losing authority to conduct its own nurse aide training program and allowed CMS to waive facilities’ loss of nurse aide training authority entirely, on a case-by-case basis. That policy guidance remains in place.
- In CMS, “Revised Policies regarding the Immediate Imposition of Federal Remedies – FOR ACTION,” S&C: 18-01-NH (Oct. 27, 2017), CMS explicitly proposed replacing S&C: 16-31-NH (Jul. 22, 2016, rev. Jul. 29, 2016), as requested by the American Health Care Association in a December 2016 letter to then President-Elect Trump and again in a March 9, 2017 letter to then-HHS Secretary Tom Price.
- CMS made these proposed changes final in CMS, “Final Revised Policies Regarding the Immediate Imposition of Federal Remedies,” QSO-18-18-NH (Jun. 15, 2018). CMS limited CMPs for immediate jeopardy to deficiencies resulting in serious injury, harm, or death and authorized Regional Offices (now Locations) to impose remedies other than CMPs for jeopardy and to consider when noncompliance results from a one-time mistake. That policy guidance remains in place.
- National Consumer Voice for Quality Long-Term Care v. Azar, Case No. 21-162 (D.D.C. filed Jan. 18, 2021), challenged the use of only per instance CMPs for “past noncompliance.” In settling the case, CMS withdrew the surveyor guidance and the CMP Analytic Tool, S&C: 17-37-NH (Jul. 7, 2017) issued in 2017, at QSO-21-20-NH (Jul. 28, 2021). The July 2017 guidance made lower per instance CMPs the default; discouraged Regional Offices from starting per day CMPs before “the start date of the survey;” required Central Office to review CMPs exceeding $250,000; and expanded facilities’ ability to describe CMPs as unaffordable, among other changes that reduced CMP amounts. Although CMS withdrew that entire surveyor guidance document, it has not updated the guidance for CMPs and has not released a new CMP Analytic Tool.
December 14, 2023 – T. Edelman