In October of 2016, the Obama Administration issued a Final Rule regarding the Requirements of Participation (RoP) for nursing homes. The Final Rule was issued, in part, because the regulations had “not been comprehensively reviewed and updated since 1991.” Under the Final Rule, the revisions to the RoP were to be implemented over three phases: Phase 1, implemented on November 28, 2016, encompassed most of the nursing home requirements that have been in effect for the last 25 years; Phase 2 was implemented on November 28, 2017; and Phase 3 will be implemented on November 28, 2018.
In the face of pressure from the nursing home industry, CMS announced this past July that it would not be imposing certain remedies for several of the Phase 2 requirements for one year; however, CMS did not specify which requirements would not be fully enforced. On November 24, 2017, just four days before the implementation of Phase 2, CMS finally published a list of those requirements. CMS has chosen to limit the enforcement of the following eight requirements:
- 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)
CMS will not impose “civil money penalties, discretionary denials of payment for new admissions (DPNAs), and discretionary termination” from Medicare and Medicaid when deficiencies have been cited for any of the above requirements. Instead, CMS believes that an additional 18 months is needed to educate surveyors and providers on the new requirements. Therefore, cited deficiencies for any of the listed requirements will be remedied with directed plans of correction or directed in-service training. Research has shown that directed plans of correction and in-service training, as remedies, do not result in better outcomes for residents.
CMS’s actions will put residents at an even greater risk of harm, injury, or death. For instance, the baseline care plan requires facilities to develop an individualized care plan within 48 hours of a resident’s admission. This requirement was developed after the Office of the Inspector General (OIG) reported that one in five residents experienced harm within, on average, 15 days of admission to a skilled nursing facility; 20 percent of these cases resulted in life-sustaining interventions or death. The OIG further reported that 59 percent of these adverse events were “clearly or likely preventable.”
Similarly, facility assessment plays a central role in resident care. The requirement provides, in part, that nursing homes must “conduct and document a facility-wide assessment to determine what resources are necessary to care for its residents competently during both day-to-day operations and emergencies.” This mandate should not be a new concept to providers and should not require 18 months of additional education. In fact, CMS’s own guidance notes that a “facility assessment may be similar to common business practices for strategic and capital budget planning.” Facility assessment is essential to the entire standard of care structure, as evidenced by its inclusion in either the regulatory language or guidance of other requirements, such as nursing services, behavioral health services, staffing, infection control, training, accidents, respiratory care, menu and nutritional adequacy, and transfer and discharge. Delaying the adequate enforcement of this requirement directly jeopardizes facility adherence to other requirements, which, in turn, again places residents at serious risk.
Lastly, several of the other requirements listed above have been in the RoP in some form or another for many years. For example, the smoking policies requirement is almost identical to the previous requirement; CMS just renamed it. Under “Other Environmental Conditions, which is listed in the previous RoP, nursing homes were required to “[e]stablish policies, in accordance with applicable Federal, State, and local laws and regulations, regarding smoking, smoking areas, and smoking safety that also take into account non-smoking residents.” Now, under “Smoking Policies,” nursing homes must “[e]stablish policies, in accordance with applicable Federal, State, and local laws and regulations, regarding smoking, including tobacco cessation, smoking areas and safety, including but limited to non-smoking residents.” Nursing homes clearly do not need 18 months of additional education for a requirement that existed before the revisions to the RoP.
CMS has provided no reasonable basis for delaying these crucial requirements, especially since nursing homes have known about these requirements since 2016. CMS’s delay is a direct response to the demands of the nursing home industry and signals another step in the industry’s effort to dismantle meaningful enforcement against deficient nursing homes. CMS must consider the needs of nursing home residents above the demands of the nursing home industry.
T. Edelman, D. Valenejad, November 2017
 Medicare and Medicaid Programs; Reform of Requirements for Long- Term Care Facilities, 81 Fed. Reg. 68688 (Oct. 4, 2016).
 Id. at 68688.
 See David Wright, Revision to State Operations Manual (SOM) Appendix PP for Phase 2, F-Tag Revisions, and Related Issues (S&C: 17-36-NH), CMS (June 30, 2017), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/Survey-and-Cert-Memo-Revision-SOM-Appendix-PP-Phase-2.pdf (“The listing of specific Phase 2 requirements associated with enforcement delays will be shared at a later date.”).
 David Wright, Temporary Enforcement Delays for Certain Phase 2 F-Tags and Changes to Nursing Home Compare (S&C:18-04-NH), CMS (Nov. 24, 2017), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-18-04.pdf.
 State survey agencies often cite nursing home deficiencies at a “no harm” level. As a result, the most often selected remedy is directed plans of correction. Unfortunately, data show that such a remedy is not a good catalyst for improvement. See Richard J. Mollot & Rediet Demissie, The Identification of Resident Harm in Nursing Home Deficiencies: Observation & Insights, LTCCC (2017), http://nursinghome411.org/identification-of-resident-harm-in-nursing-home-citations/ (noting that 95 percent of all citations on Nursing Home Compare are the result of “no harm” deficiencies); Richard J. Mollot, Chronic Deficiencies in Care: The Persistence of Reoccurring Failures to Meet Minimum Safety & Dignity Standards in U.S. Nursing Homes, LTCCC (2017), http://nursinghome411.org/nursing-homes-with-chronic-deficiencies/ (reporting that 42 percent of nursing homes have three or more repeat citations for the same requirement over a three-year period). For more information on “no harm” deficiencies, please read our monthly newsletter entitled “Elder Justice: What “No Harm” Deficiencies Means for Residents,” available at http://www.medicareadvocacy.org/newsletter-elder-justice-what-no-harm-really-means-for-residents/.
 42 C.F.R. § 483.21(a).
 Daniel R. Levinson, Adverse Events in Skilled Nursing Facilities: National Incidence among Medicare Beneficiaries, HHS OIG (Feb. 2014), https://oig.hhs.gov/oei/reports/oei-06-11-00370.pdf.
 42 C.F.R. § 483.70(e).
 State Operations Manual, Pub. No. 100-07, Appendix PP, (“Revision to State Operations Manual (SOM) Appendix PP for Phase 2, F-Tag Revisions, and Related Issue”), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/Advance-Appendix-PP-Including-Phase-2-.pdf.
 42 C.F.R. § 483.90(i)(5). The previous regulation can be found in the old Appendix PP, available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf.
 42 C.F.R. § 483.90(i)(5).
 Jennifer Hilliard, LeadingAge Calls for Delay, Revision of Nursing Home Requirements of Participation, LeadingAge (Aug. 28, 2017), https://www.leadingage.org/regulation/leadingage-calls-delay-revision-nursing-home-requirements-participation (“The final rule on nursing home requirements of participation was issued in haste toward the end of the Obama Administration. It would be most productive to delay the effective dates of Phases II and III until a determination can be made on achieving the goals of the regulatory overhaul in a less burdensome and more cost-effective manner.”).