In this series of Survey and Regulatory Update articles, we’ve outlined state enforcement remedies and CMS civil monetary penalties (CMP). However, it is important to be aware that CMS has a wide array of enforcement options beyond CMPs. CMS guidance states the purpose of federal remedies is to address a facility’s responsibility to promptly achieve, sustain, and maintain compliance with all federal requirements. In addition to the required enforcement action(s), remedies should be selected that will bring about facility compliance quickly. While a facility is always responsible for all violations of the Medicare and Medicaid requirements, when making remedy choices, the CMS Regional Office is directed to consider the extent to which the noncompliance is the result of a one-time mistake, larger systemic concerns, or an intentional action of disregard for resident health and safety.
The following federal remedies are available:
- Termination of the provider agreement.
- Temporary management.
- Denial of payment for all Medicare and/or Medicaid residents by CMS.
- Denial of payment for all new Medicare and/or Medicaid admissions.
- Civil money penalties.
- State monitoring.
- Transfer of residents.
- Transfer of residents with closure of facility.
- Directed plan of correction.
- Directed in-service training; and
- Alternative or additional state remedies approved by CMS.
Additional factors that may be considered to assist CMS in determining which and/or how many remedies to impose within the available remedy categories for levels of noncompliance, include but are not limited to:
- The relationship of one deficiency to other deficiencies.
- The facility’s prior history of noncompliance in general, and specifically with reference to the cited deficiencies; and
- The likelihood that the selected remedy(ies) will achieve correction and continued compliance.
It is important to understand what the different federal enforcement remedies are and how they impact a facility when imposed. The paragraphs below will describe some of the more common remedies.
Directed Plan of Correction
A directed plan of correction is a plan that the state or CMS develops to require a facility to act within specified time frames for a citation of non-compliance with a federal regulation. Achieving compliance is ultimately the facility’s responsibility, whether or not a directed plan of correction is followed. If the facility fails to achieve substantial compliance after complying with the directed plan of correction, the state or CMS may impose another remedy until the facility achieves substantial compliance or is terminated from the Medicare or Medicaid programs.
A directed plan of correction should address all the elements required for a facility-developed plan of correction. A directed plan of correction may be imposed 15 calendar days after the facility receives notice in non-immediate jeopardy situations and two calendar days after the facility receives notice in immediate jeopardy situations. The date the directed plan of correction is imposed does not mean that all corrections must be completed by that date.
Directed In-Service Training
Directed in-service training is a remedy that may be used when the state or CMS believe that education is likely to correct the deficiencies and help the facility achieve substantial compliance. This remedy requires the staff of the facility to attend an in-service training program. The purpose of directed in-service training is to provide basic knowledge to achieve and remain in compliance with federal requirements.
The facility bears the expense of the directed in-service training. After the training has been completed, the state will assess whether compliance has been achieved. If the facility still has not achieved substantial compliance, the state agency (DSHS/RCS) or CMS may impose one or more additional remedies. Directed in-service training may be imposed 15 calendar days after the facility receives notice in non-immediate jeopardy situations and two calendar days after the facility receives notice in immediate jeopardy situations.
State Monitoring
When State Monitoring is imposed, a State Monitor (often a surveyor or complaint investigator conducting a monitoring visit) oversees the correction of cited deficiencies in the facility as a safeguard against further harm to residents when harm or a situation with a potential for harm has occurred. CMS requires State Monitoring if a facility has been found on three consecutive standard surveys to have provided substandard quality of care. Otherwise, State Monitoring may be considered an optional remedy. For example, some situations in which State Monitoring may be appropriate include, but are not limited to, the following:
- Poor facility compliance history, e.g., a pattern of poor quality of care, many complaints, etc.
- State concern that the situation in the facility has the potential to worsen.
- Immediate jeopardy exists and no temporary manager can be appointed.
- If the facility refuses to relinquish control to a temporary manager, a monitor may be imposed to oversee termination procedures and transfer of residents; or
- The facility seems unable or unwilling to take corrective action for cited substandard quality of care.
Monitoring may occur anytime in a facility, e.g., the state may determine that ongoing monitoring is needed 24 hours a day, seven days a week, or it may determine that monitoring is only needed periodically. In all instances, monitors have complete access to all areas of the facility, as necessary, for performance of the monitoring. Factors used to determine how often a facility is monitored may include, but are not limited to, the following:
- The nature and seriousness of the deficiencies as specified by the state; and
- The timing and frequency of when the problems occurred, e.g., mealtimes, evening shifts, daily, etc.
Monitors may be assigned to the facility at these specific times for a specified number of days, as determined by CMS or the state, to ensure corrective action. The remedy is discontinued when:
- The facility’s provider agreement is terminated; or
- The facility has demonstrated to the satisfaction of CMS or the state that it is in substantial compliance with the requirements and, if imposed for repeated substandard quality of care, that it will remain in substantial compliance.
If you have questions regarding state or federal enforcement remedies for skilled nursing facilities, please email Elena Madrid or call her at (800) 562-6170, extension 105.
