The U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) recently updated its Work Plan with additional topics focusing on nursing facilities that receive Medicare and Medicaid reimbursement. The Work Plan describes new and ongoing OIG audits and evaluations for HHS programs and operations, including Medicare and Medicaid.

The Staffing and Quality Connection

Earlier in 2018, OIG added a new topic to the Work Plan, which will focus on the Centers for Medicare & Medicaid Services (CMS) oversight of nursing facility staffing levels. The overall concern is the impact of staffing levels on residents’ quality of care.

The Medicare Requirements of Participation state that a facility must provide sufficient nursing staff on a 24-hour basis and a registered nurse for at least eight consecutive hours per day, seven days a week.
With this new topic, OIG will be examining nursing staffing levels that are reported by facilities electronically to CMS’ Payroll-Based Journal (PBJ). In addition, the review will address the efforts by CMS to ensure data accuracy and improve quality of care by examining the enforcement of minimum requirements and encouraging the hire of high-quality staff above required levels.

To further emphasize the increased focus on staffing level requirements, this addition to the OIG Work Plan comes recently after the issuance of letter QSO-18-17-NH from the CMS director of the Quality, Safety, and Oversight Group to State Survey Agency directors. That letter addressed the transition to PBJ Staffing Measures, staffing data audits, and the requirement for registered nurse staffing in facilities.

CMS demonstrated its commitment to addressing staffing level requirements with the issuance of letter QSO-19-02-NH in November. This letter addressed the use of PBJ data to help increase oversight of nursing facilities by evaluating sufficient staffing.

In the letter, CMS indicated that it is “very concerned about the risk to resident health and safety” brought about by nurse staffing levels because of the connection between the quality of residents’ care and appropriate nurse staffing.

To assist with oversight, CMS will be providing CMS Regional Offices and State Survey Agencies with a list of nursing facilities with potential staffing issues.

Specifically, CMS has identified two areas of concern: 1.) nursing facilities with several days in a quarter without a registered nurse (RN) present; and 2.) significantly low nurse staffing levels on weekends. To address these concerns, CMS will begin notifying State Survey Agencies of nursing facilities that meet either or both of these criteria.

Surveying on Weekends

In addition to this notification, the letter said that CMS will now require State Survey Agencies to conduct at least 50 percent of the required off-hours surveys on weekends based on the list of nursing facilities it provides. Also, CMS instructed state surveyors to investigate whether a nursing facility has provided the services of an RN seven days a week, eight hours a day, when conducting a standard or complaint survey.
State surveyors are to cite the nursing facility for noncompliance if this requirement is not met.

Transfer and Discharge in the Spotlight

OIG added another topic to the Work Plan in November focusing on the involuntary transfer and discharge of nursing facility residents. OIG noted data from the Long-Term Care Ombudsman Program that shows complaints related to discharge and eviction are cited more frequently than any other issue. This is an area of concern to CMS because of a belief that an involuntary transfer and discharge of a nursing facility resident could be unsafe and traumatic.

With this new topic, OIG will be examining nursing center compliance with CMS requirements for involuntary transfers and discharges. In addition, the review will examine the extent that state long term care ombudsmen address involuntary transfers and discharges and the extent to which State Survey Agencies investigate and take enforcement actions against nursing facilities for improper transfers and discharges.

OIG updates its Work Plan throughout the year, and the release of an update provides an opportunity for nursing facilities to review their own operations and practices in order to identify areas for compliance improvement.

Other Areas of Focus

OIG conducts investigative activities that involve allegations of fraud, waste, and abuse in all of HHS’ programs. Medicare and Medicaid constitute a significant amount of its work. Areas that OIG can investigate include billing for services not rendered, provision of medically unnecessary services and misrepresented services, patient harm, and the solicitation and receipt of kickbacks.

In addition to performing investigations, OIG is also involved in facilitating compliance in the health care industry and the exclusion of individuals and entities from participation in Medicare, Medicaid, and other federal health care programs.

In addition to the topics addressed previously, the active OIG Work Plan already has identified several risk areas for skilled nursing facilities (SNFs) and nursing facilities (NFs) in the Medicare and Medicaid programs. Those areas already under review include unreported incidents of potential abuse and neglect, facility reimbursement, prospective payment system requirements, and potentially avoidable hospitalizations of nursing facility residents.

A Guide for Compliance

The Work Plan provides insight into the areas that could come under scrutiny and ultimately can help guide internal compliance activities for a facility.

These audits and evaluations by OIG serve as an important reminder that facilities must remain vigilant with their reporting and documentation. Also, it is essential that facilities are familiar with applicable requirements for the provision of services— especially staffing and transfer and discharge requirements—and remain current with policies, rules, and regulations.

The recent issuance of CMS letters in April and November and the additions by OIG to the Work Plan indicate it is also a good time for SNFs and NFs to review their compliance plan and internal policies to verify that they address all necessary requirements for the provision of services.

Facilities should review their operations and take the necessary steps now to be better prepared to provide proper and quality care, to achieve and maintain compliance in the current regulatory and audit environment, and to minimize their chances for negative audit findings or rating system scores.
Iain Stauffer serves as Of Counsel at Poyner Spruill in the Health Law Section. He can be reached at