September 14, 2022

CMS's New Long-Term Care Surveyor Guidance: What You Need to Know

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Key Takeaways

  • Long-term care (LTC) facilities and nursing homes have been under increased pressure and staffing strains since well before the beginning of the pandemic.
  • The Centers for Medicare & Medicaid Services is set to begin increased enforcement using new guidance in the State Operations Manual (SOM) to address issues affecting LTC facilities.
  • The new guidance will lead for even greater scrutiny for long-term care facilities.

Long-term care (LTC) facilities and nursing homes have been under increased pressure and staffing strains since well before the beginning of the pandemic. COVID-19 only exacerbated the staffing challenges the industry had been grappling with for many years. Now, in response to President Joe Biden's March 2022 State of the Union Address where he called for major reforms to the country's nursing home practices, LTC facilities may soon be under even further scrutiny. In October, the Centers for Medicare & Medicaid Services (CMS) is set to begin increased enforcement using new guidance in the State Operations Manual (SOM) to address issues affecting LTC facilities.

Heightened Enforcement of Existing Rules

In particular, one of the main goals of the new guidance is addressing the staffing levels in nursing homes. While the rulemaking process is still underway, and the federal government has not yet issued new specifics on staffing requirements that LTC facilities must follow, CMS did add new requirements for its surveyors to incorporate the use of Payroll Based Journal staffing data for their inspections. Currently, the broad LTC facility staffing requirements state primarily that a skilled nursing facility must:

  • Provide 24-hour licensed nursing services
  • Have a registered nurse (RN) on site for 8 consecutive hours a day, 7 days a week (more than 40 hours a week)
  • Have on staff an RN designated as Director of Nursing on a full-time basis

CMS states that surveyors will be more diligent in auditing these staffing requirements as part of their routine and complaint-based inspections with the goal of helping uncover instances of insufficient staffing and yield higher quality care. However, these requirements may be waived for a number of reasons, including if the facility is located in a rural area and the supply of skilled nursing facility services is not sufficient to meet area needs - a challenge faced by a majority of LTC facilities in the U.S.

Importantly, LTC facilities must remember that state regulations regarding staffing requirements are often more specific and stringent than the vaguer requirements from CMS. In those circumstances, facilities must also comply with the state law.

Infection Control-Specific Guidance

Additionally, CMS is also introducing further guidance on infection control following the issues faced by LTC facilities during the pandemic. First, CMS will be requiring all LTC facilities to have an infection preventionist (IP) on staff who has specialized training to effectively oversee the facility's infection prevention and control program. Secondly, CMS will be urging LTC leaders to consider making changes to their facilities to allow for a maximum of two residents in each room while encouraging them to reduce occupancy further and allow for more single occupancy rooms. The goal of this recommendation is to reduce the risk of contracting infectious diseases in rooms with several residents.

CMS surveyors will begin using the guidance and incorporating them into the survey process beginning on October 24, 2022.

Increased Risk of Labor-Related Issues

Collective bargaining is a reality for many LTC facilities. However, coming out of the pandemic and following the White House's call for improving safety and care at nursing homes, labor unions have become increasingly emboldened and the risk of extended contract negotiations and labor strikes has only gone up.

In Pennsylvania alone, the Service Employees International Union (SEIU), which represents workers across the healthcare space, has threatened to strike or has actively engaged in more than three dozen strikes in the last 24 months across the Commonwealth. Demands include calls for higher wages, better health insurance, and specifically, calls to ensure employers follow new state regulations on staffing in nursing homes.

Working with expert labor negotiators in these matters has never been more critical as unions are seeing the renewed conversation around LTC facilities as an opportunity to increase their leverage.

Compliance and Contracting

Ensuring compliance with CMS and state regulations has become increasingly difficult as the labor market has continued to shrink. While CMS's rulemaking process is still underway, LTC facilities would be wise to conduct a preemptive evaluation to discover where any compliance or regulatory risks may lie. Add in the fact that the scrutiny surrounding potential instances of Medicare and Medicaid fraud is growing, and it is becoming a perfect storm for LTC facilities already struggling to stay above water.

At Buchanan Ingersoll & Rooney, our attorneys have been helping LTC facilities and nursing homes for decades to review their protocols, manage compliance challenges, litigate allegations of fraud and abuse, oversee labor negotiations, and more. Further, our government relations professionals have been consulting with healthcare providers for years to keep them informed of upcoming regulatory changes and give them a voice in the lawmaking process.

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