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In cooperation with states, the Centers for Medicare & Medicaid Services (CMS) regularly identifies a subset of nursing facilities, generally one to two facilities per state, that are among the most poorly performing facilities in the country. These nursing facilities, which CMS calls Special Focus Facilities (SFFs), have “more problems” than other facilities, “more serious problems” than other facilities, and “A pattern of serious problems that has persisted over a long period of time” (i.e., the prior three years).[1]

CMS requires states to conduct surveys at SFFs twice as often as at other facilities and to impose more stringent enforcement actions “the longer the problems persist.” Within 18-24 months of a facility’s designation as an SFF, CMS generally expects that the facility will either: improve and graduate; or be terminated from participating in the Medicare and Medicaid programs. Each month, CMS identifies five categories of SFFs: newly-designated SFFs, SFFs that have not improved, SFFs that have improved, SFFs that have graduated, and SFFs that are no longer participating in the federal payment programs.

As demonstrated below, CMS has not followed through on these requirements for SFFs.  CMS is not imposing serious enforcement actions against SFFs that it cites with actual harm or immediate jeopardy deficiencies, or both. To the contrary, CMS is not imposing any sanctions at all or is imposing only small financial penalties, averaging less than $20,000, against SFFs that it finds have not improved.

The Center for Medicare Advocacy’s Evaluation

On February 5-7, 2019, the Center looked at CMS’s most recent list (dated January 19, 2019) of 37 SFFs that CMS identified as not having improved. CMS had originally designated these facilities as SFFs between 5 and 30 months earlier. The Center looked at the federal website, Nursing Home Compare, to determine whether CMS imposed civil money penalties (CMPs) or denials of payment for new admissions (DPNAs), or both, against them.

Findings

The 37 SFFs that had not improved had few enforcement actions taken against them and these actions were limited:

  • 28 of the 37 SFFs were cited with actual harm or immediate jeopardy deficiencies in 2018.
  • 14 of the 28 SFFs that were cited with harm or jeopardy deficiencies, or both, in 2018 did not have CMPs or DPNAs imposed for deficiencies cited in 2018 (although CMPs had been imposed for deficiencies cited in earlier surveys).
  • Only 14 of the 28 SFFs that were cited with actual harm or jeopardy deficiencies, or both, in 2018 had either CMPs or DPNAs, or both, imposed against them.
    • Only 9 of the 28 SFFs that had not improved had CMPs imposed for actual harm or immediate jeopardy deficiencies that were cited in 2018. Only 1 CMP exceeded $100,000. The remaining 8 CMPs ranged from $10,400 to $53,089 and averaged $19,616.50. In all instances, the CMPs were considerably lower in 2018 than the CMPs imposed against these facilities in 2016 and 2017.
    • 3 of the 9 SFFs with CMPs also had DPNAs imposed against them.
    • 5 of the 28 SFFs had only DPNAs imposed against them. In 2016 or 2017, or both, these 5 SFFs had CMPs imposed against them.
  • 9 of the 37 SFFs were not cited with harm or jeopardy deficiencies in 2018.
    • 2 of these 9 SFFs had CMPs imposed.

Conclusion

The Center concludes that the Special Focus Facility Program is failing to achieve its goals of focusing additional attention and enforcement resources on nursing facilities with a history and record of extremely poor care. CMS is not imposing significant penalties against SFFs that have not improved, even when it cites them with actual harm and immediate jeopardy deficiencies.

The extraordinarily limited enforcement against even the most poorly performing nursing facilities in the country underscores how weak enforcement has become. CMS must change course and impose meaningful financial penalties against facilities that fail to provide residents with the care they need.

The Center’s full report, with charts describing the 28 SFFs that were cited with actual harm or immediate jeopardy deficiencies in 2018 and enforcement actions that CMS imposed against them in 2018 as well as in 2016 and 2017, is available at: https://www.medicareadvocacy.org/report-theres-nothing-special-about-how-cms-treats-special-focus-nursing-facilities/

February 14, 2019 – T. Edelman

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[1] CMS, “Special Focus Facility (“SFF”) Initiative,” https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/SFFList.pdf.

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