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 Work Continues on Improving Requirements of Participation Rules

Long term and post-acute care (LT/PAC) providers won partial relief in their attempt to delay and change the Phase 2 Requirements of Participation (RoP) that went into effect on Nov. 28 when the Centers for Medicare & Medicaid Services (CMS) last week delayed some types of enforcement of the new requirements for 18 months.
The headline action taken by CMS will provide an 18-month moratorium on the use of certain enforcement remedies (Civil Monetary Penalties, Denial of Payment for New Admissions, and discretionary termination) for specific Phase 2 requirements. Despite the delay, CMS said it may use “directed plans of correction or directed in-services” for these specific Phase 2 requirements. The 18-month delay time frame will be used to educate facilities about specific new Phase 2 standards, the agency said.
Clif Porter, senior vice president, government relations for the American Health Care Association (AHCA), says much work remains on getting to the goal of the LT/PAC profession when it comes to changing the way the new requirements both read and will be implemented.   

“We are appreciative from an enforcement standpoint, but also disappointed that many of the issues we raised remain unaddressed,” he says. “While the financial penalties are not hanging over the heads of providers, there remains the burden for operators to comply, which causes a separate financial burden across the industry.”
Some of the specific requirements under Phase 2 are unnecessary, providers say, like for instance their concerns about displaying competencies in the behavioral health area even if a facility does not offer such services and other matters related to the survey process.
Porter says AHCA continues to discuss possible changes to the overall rule and hopes CMS will address industry concerns in the near term. “While many of the new regulations actually are helpful and we support them there are several that still need to be addressed and need to be changed,” he says.
Ahead of the Nov. 28 implementation date, AHCA had worked with congressional allies in the House and Senate to push the Department of Health and Human Services (HHS) and CMS to issue a one-year delay in the implementation of the updated RoP for skilled nursing facilities.
As part of the effort, a letter signed by 24 senators was sent to the heads of HHS and CMS on Oct. 26 urging such a delay, joining a similar campaign in the House which saw 122 lawmakers sign on for giving providers more time to comply with the new RoP.
CMS estimates that the cost of compliance during the first year of the updated RoP could be as much as $62,900 per facility and $55,000 in subsequent years. Across the nation, this would total $831 million in the first year and on-going annual costs of $736 million.
In addition to the challenge presented by higher costs, some of the updated requirements appear to be duplicative since, in many cases, providers have already developed effective procedures and guidelines to protect patients and ensure the provision of quality care.
CMS made its announcement of the enforcement delay in part in two memos, titled Temporary Enforcement Delays for Certain Phase 2 F-Tags and Changes to Nursing Home Compare and Preparation for Launch of New Long-Term Care Survey Process.
Also included in the first memo were the following key items:
- A freeze on health inspection star ratings: Following the implementation of the new survey process on Nov. 28, CMS will hold constant the current health inspection star ratings on the Nursing Home Compare website for any surveys occurring for the next 12 months to between Nov. 28, 2018. CMS said there is no change to the staffing or quality measure component and the overall rating can still change based on your staffing and quality measure component.
- Availability of Survey Findings: The survey findings of facilities surveyed under the new survey process will be published on Nursing Home Compare, but will not be incorporated into calculations for the Five-Star Quality Rating System for 12 months. CMS will add indicators to Nursing Home Compare that summarize survey findings.
- Methodological Changes and Changes in Nursing Home Compare: In early 2018, Nursing Home Compare health inspection star ratings will be based on the two most recent cycles of findings for standard health inspection surveys and the two most recent years of complaint inspection, the agency said.
- Five-Star Rating System Changes: These changes, CMS said, would only be frozen for any surveys or Informal Dispute Resolutions (IDRs) that are initiated after Nov. 28, 2017. Any survey or IDR that was initiated before that date will continue to impact facility Five-Star Ratings.
In the second memo, CMS confirmed that it will begin the new survey process on Nov. 28, 2017, and in doing so offers guidance to state surveyors as they implement the new survey. 
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