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 AHCA Says CMS Improvements to SNF Oversight Focus on Resident Care

The American Health Care Association/National Center for Assisted Living (AHCA/NCAL) on June 8 sent a letter to the heads of the Department of Health and Human Services (HHS) and Centers for Medicare & Medicaid Services (CMS) to correct assumptions made by a group of state attorneys general (AG) about enforcement changes CMS has made related to skilled nursing centers.

In response to a May 30 letter sent by 17 AG to CMS expressing concerns over a so-called “rollback” of federal oversight of skilled nursing facilities (SNFs) under the Trump administration, AHCA President and Chief Executive Officer Mark Parkinson said in the association’s letter that the AG complaints are based on outdated facts and ignore the purpose of the regulatory changes, which is to improve the lives of SNF residents.

“These attorneys general mischaracterize the Centers for Medicaid & Medicare Services’ efforts to clarify and improve skilled nursing facility oversight, and in doing so are unwittingly advocating for punitive policies that hurt residents of nursing facilities,” he said.

Echoing those sentiments, David Gifford, MD, senior vice president of quality and regulatory affairs for AHCA, says, “We were surprised and disappointed with the AG letter’s misrepresentation of the actual changes CMS has made and felt the need to clarify the actual changes made by CMS.

“In addition, the data from CMS do not support their [the AG] claim that these changes have made care worse or that stronger penalties will help improve care. If we are going to debate the role of regulatory enforcement in the long term care setting, we want it to be based on the facts, not on emotions or beliefs,” he says.

In the letter, Parkinson said that the AG “ignore the steady quality-of-care improvements SNFs have made and continue to make—contrary to their claim that CMS changes would harm residents.” He urged CMS and the public to “reject the attorneys general outdated philosophy to approaching quality improvement. While our members are working hard to improve the lives of their residents, these politicians want to return to the ineffective policies of the past.”

The most basic factual mistake made by the state AG, is that CMS has overturned reforms made during the Obama administration designed to improve the safety and well-being of SNF residents, Parkinson said. “This is false. CMS’ July 7, 2017, policy memo did not ‘decrease the dollar amount and frequency’ of civil money penalties (CMP), as the AG letter states,” he said.

In fact, AHCA said, the revisions CMS made to its CMP decision tool clarified when a CMP is to be issued on either a per diem basis or a per instance basis. “It provided clear guidelines for CMS Regional Offices to follow to appropriately impose and to accurately and consistently calculate the CMP amount,” Parkinson said.

“CMS did not change the dollar amounts or frequency of CMPs nor did they change the deficiencies triggering the imposition of CMPs.”

Digging deeper into the AG concerns, AHCA said in a Nov. 24, 2017, policy memo that CMS did provide a temporary 18-month moratorium on imposing CMPs and discretionary denial of payments. The agency also temporarily halted discretionary termination for eight out of 249 distinct deficiency citations, or F-tags, for regulations that were new as of November 2017. In addition, these eight distinct citations were still enforced and cited during this moratorium.

However, “contrary to what the letter suggests, not one of the eight F-tags included in this CMP delay are related to abuse, neglect, or exploitation,” Parkinson said.

The stated point made by CMS for the 18-month delay on the imposition of CMPs is to provide a period “to educate surveyors and the providers to ensure they understand the health and safety expectations that will be evaluated through the survey process since these Phase 2 requirements are associated with unique and separate tags where specialized efforts and technical assistance may be needed,” he said.

AHCA also stressed that CMPs are just one of 12 enforcement tools CMS may implement to address noncompliance by a SNF. Others include denial of payment for all individuals, directed in-service training, and directed plan of correction. “CMS continues to operate under its guidance to cite facilities when noncompliant with these practices,” Parkinson said.

On the issue of quality-of-care data used by the AG, he said “the concerns expressed by the attorneys general regarding quality of care getting worse or in jeopardy of declining with CMS’ suspension of CMPs is not supported by the data.”

The facts show, Parkinson said, that the SNF sector is focused on providing quality care and developing staff competencies to care for residents with increasingly complex care needs. “As a result, nursing hours have been steadily increasing over the past five years, and SNFs have shown national improvement in 20 of the 24 quality clinical outcomes measured by CMS,” he said.

“When CMS began using their new method to collect staffing levels based on audited payroll data, the star ratings for staffing levels in Nursing Home Compare did not change. The rehospitalization rates for all admissions, regardless of payer status, have been steadily decreasing. This equates to 142,000 fewer hospitalizations.”

In addition, SNFs have reduced adverse events and improved the transitions of care, two areas that the HHS Office of Inspector General has indicated are the leading causes for hospitalizations.

Parkinson also said the proportion of people admitted for post-acute care who are discharged back to the community has steadily been increasing over the past five years and recognized by the Medicare Payment Advisory Commission “as a marker of improved quality for skilled nursing facilities.”

Overall, Parkinson said AHCA and its members are concerned with the AG “implied philosophy to increase the use of penalties as the primary method to improve quality.”  This way of thinking is also not based on data, he said. “There is no evidence that the punitive approach to quality improvement works. In fact, recent analysis comparing the relationship of CMS deficiencies, CMPs, and other enforcement actions show little to no correlation with the clinical outcomes in nursing homes,” Parkinson said.

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