Client Alert: CMS Delays Nursing Home Survey Updates Under State Operations Manual Appendix PP
Date: January 22, 2025
By:
Kyle R. René
- F725: Requiring facilities to maintain licensed nursing staff on a 24-hour-a-day basis and clarifying that compliance with state minimum staffing requirements does not necessarily mean a facility is compliant with the requirement to maintain staff sufficient to meet resident needs.
- F727: Noting that a Director of Nursing (DON) may satisfy the requirement that a facility provide eight consecutive hours of Registered Nurse (RN) services seven days a week, but clarifying that certain facilities may require more extensive RN coverage depending on the needs of residents.
- F851: Requiring surveyors to review a facility’s Payroll-Based Journal (PBJ) submissions for the most recent quarter in preparation for conducting a facility survey.
The revised Guidance maintains additional updates as were outlined by CMS when it originally proposed revisions to Appendix PP on November 18, 2024. Other key areas impacted by these revisions include:
Admission, Transfer & Discharge
CMS updated Guidance on admission, transfer, and discharge of residents with a key focus on ensuring resident discharges, including in the context of involuntary discharge, are sufficiently planned and ensure residents are discharged to safe locations that can meet their needs. In particular, CMS replaced F-Tags F622-F626 and F660-F661 with two new F-Tags: F627 (Inappropriate Transfers and Discharges) and F628 (Transfer and Discharge Process). Updated Guidance highlights potential evidence of non-compliance as including (not an exhaustive list):
- Discharge for failure to meet resident needs where there is no evidence of a facility having attempted to meet resident needs prior to discharge.
- Discharge for failure to pay without evidence that the facility offered to assist with applying for medical assistance or of resident refusal to comply with seeking payment from Medicare/Medicaid.
- Discharge on the basis of a resident posing a danger to the health/safety of others without evidence supporting that such danger exists.
- Refusal to allow a resident to return after hospitalization or other absence without a valid reason for refusing such return.
- Failure to appropriately account for resident needs and safety post-discharge.
Chemical Restraints/Unnecessary Psychotropic Medications
CMS updated its expectations regarding the use of psychotropic medications with a more pointed focus on avoiding the excessive use of such medications, including for the purposes of discipline or staff convenience. In particular, CMS moved Guidance under F758 (Unnecessary Psychotropic Medications) to F605 (Right to be Free from Chemical Restraints), suggesting broader possibilities that inappropriate use of psychotropic medications could serve as a basis for citations under the category of residents’ rights to be from abuse and neglect. Among other key points, the Guidance highlights that facilities are to ensure:
- Residents only receive psychotropic medications when other nonpharmacological interventions are clinically contraindicated.
- Residents only remain on psychotropic medications when gradual dose reduction and behavioral interventions have been attempted and/or deemed clinically contraindicated.
- Medications are only used to treat residents’ medical symptoms and not for discipline or staff convenience, which would be deemed a chemical restraint.
- Residents, their families, and/or representatives are informed of the benefits, risks, and alternatives for psychotropic medications in advance of any initiation or increased administration of such medications, including with respect to any “black box” warnings.
Professional Standards and Medical Director
CMS added Guidance under F658 (Professional Standards) and F841 (Medical Director) regarding the diagnosis of mental health disorders and prescribing of associated medications, among other areas. CMS noted concerns regarding the use of psychotropic medications to treat schizophrenia and other mental health disorders in the absence of adequate supporting documentation, emphasizing the need for resident mental health diagnoses to be supported by documentation demonstrating residents’ physical, behavioral, mental, and psychosocial status, as well as comorbid conditions, and ruling out alternate influences on a resident’s condition, such as substance use, other medical conditions, indications of distress, changes in functional status, and resident complaints, behaviors, and symptoms. CMS outlined similar concerns in connection with resident assessments (discussed with respect to F641, below).
Accuracy/Coordination/Certification
CMS deleted F642 (Coordination/Certification of Assessment) and moved associated Guidance regarding Minimum Data Set (“MDS”) coding to F641 (Accuracy of Assessments). CMS specifically emphasized concerns about inaccurate MDS coding and its potential impact on facility reimbursement, including with respect to facilities “backdating” assessments, coding assessments/changes in status without adequate documentation in support, “correcting” assessments that do not appear to have been erroneously documented and otherwise delaying or withholding MDS assessments, discharge/entry tracking information, or information to be included in the CMS internet Quality Improvement Evaluation System (“iQIES”). Regarding suspicions that a facility may be knowingly coding inaccurate information, surveyors are directed to report such concerns to the U.S. Department of Health & Human Services Office of the Inspector General (“OIG”).
QAPI/QAA Improvement Activities
CMS updated Guidance on F867 (QAPI/QAA Improvement Activities) to incorporate health equity reports into the Quality Assessment/Performance Improvement (“QAPI”) programs for nursing homes. Such reports relate to, among other areas, addressing the needs of individuals with disabilities, limited English proficiency, or different cultural or ethnic preferences.
What This Means for Providers
The above points are not comprehensive of all changes included in the proposed updates to Appendix PP of the CMS State Operations Manual (“SOM”). Providers are encouraged to review the most recent version of the proposed updates to Appendix PP that were included in the above Guidance and are available here. CMS provides a helpful summary of proposed changes in the introductory pages to the Guidance, and changes to existing Appendix PP provisions are included in red. Providers should remain mindful of CMS’ emphasis on maintaining comprehensive, accurate documentation in connection with resident assessments, diagnoses, and medication administration, particularly with respect to mental health/schizophrenia diagnoses and the administration of psychotropic medications. Such actions can help ensure facility compliance with similar areas of focus for CMS in recent years, including under the Quality Reporting Program validation process referenced as part of the Fiscal Year 2025 Skilled Nursing Facility Prospective Payment System Final Rule (CMS 1802-F).
If you have questions or need guidance on nursing home survey issues (including deficiencies and penalties) and/or compliance with Medicare Requirements of Participation, please contact krene@whitefordlaw.com.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.