The Centers for Medicare & Medicaid Services (“CMS”) intends to increase its oversight and scrutiny of skilled nursing facilities in its Special Focus Facility (“SFF”) program. CMS is revising the SFF program to protect and improve the quality of care that residents living in these skilled nursing facilities receive. This action is being taken as part of the Biden Administration’s priority to improve the safety and quality of care in skilled nursing facilities, as outlined in a White House Fact Sheet. On October 21, 2022, CMS announced revisions to the SFF program as it identified concerns about skilled nursing facilities that fail to demonstrate the improvements needed to graduate from the SFF program, as well as concerns about skilled nursing facilities that graduate from the SFF program, but then regress in their compliance and quality of care.
What Is the Special Focus Facility Program?
Sections 1819(f)(8) and 1919(f)(10) of the Social Security Act require CMS to conduct an SFF program that focuses on skilled nursing facilities that have a persistent record of noncompliance leading to poor quality of care.
Skilled nursing facilities are identified as SFF candidates based on their last three standard health survey cycles and the last three years of complaint survey performance.
When a skilled nursing facility is in the SFF program, the survey agency will conduct a standard health survey at least once every six months and recommend progressively stronger enforcement actions in the event of continued failure to meet the requirements for participation with the Medicare and/or Medicaid programs. The timing of these standard health surveys must be as unpredictable as possible.
CMS expects that selected skilled nursing facilities will rapidly make and sustain improvements so that they graduate from the SFF program.
Some skilled nursing facilities fail to demonstrate the improvements needed to graduate from the SFF program and can therefore remain in the SFF program for a prolonged period of time. Additionally, there are some who graduate from the SFF program only to see their compliance and quality regress later, often referred to as “yo-yo” noncompliance.
SFF Program Revisions
CMS is announcing the following revisions to the SFF program:
- Tougher Requirements
CMS is emphasizing the successful completion of the SFF program by adding a threshold that prevents a skilled nursing facility from exiting based on the total number of deficiencies cited. Under this new approach, skilled nursing facilities will not be able to graduate from the SFF program’s enhanced scrutiny without demonstrating systemic improvements in quality.
- Termination
CMS is considering discretionary termination from the Medicare and/or Medicaid programs for all skilled nursing facilities cited with Immediate Jeopardy deficiencies on any two surveys while in the SFF program. This is intended to avoid situations where a skilled nursing facility remains an SFF for a prolonged period of time.
- Increased Enforcement and Remedies
CMS is imposing more severe and escalating enforcement remedies for SFF program skilled nursing facilities that have continued noncompliance and little or no demonstrated effort to improve performance.
- Focus on Staffing
CMS is informing survey agencies to consider a skilled nursing facility’s staffing when selecting an SFF.
For example, if a survey agency is considering two SFF candidates with a similar compliance history, CMS recommends selecting the skilled nursing facility with lower staffing (staffing star rating or staffing ratio) as the SFF. Survey agencies may also take into consideration other relevant findings, like previous complaint findings or enforcement actions.
- Graduating or Not
A skilled nursing facility will graduate from the SFF program once it has had two consecutive standard health surveys with 12 or fewer deficiencies cited at scope and severity level (“S/S”) of “E” or less on each survey.
SFFs will not graduate if the following occurs: (1) any standard health survey results in deficiencies cited at an S/S level of “F” or higher; (2) any life safety code or emergency preparedness survey results in deficiencies cited at an S/S level of “G” or higher; (3) 13 or more total deficiencies cited on any survey; or (4) intervening complaint surveys with 13 or more total deficiencies or any deficiencies cited at an S/S level of “F” or higher.
- Life After SFF Program Graduation
CMS is extending the monitoring period and maintaining readiness to impose progressively severe enforcement actions against skilled nursing facilities whose performance declines after graduation from the SFF program.
CMS will closely monitor graduates from the SFF program for a period of three years to ensure improvements are sustained. For SFFs that graduate but continue to demonstrate poor compliance identified on any survey (e.g., actual harm, substandard quality of care, or Immediate Jeopardy deficiencies), CMS may use its authority to impose enhanced enforcement options, up to, and including discretionary termination from the Medicare and/or Medicaid programs.
- Skilled Nursing Facilities Remaining in the SFF Program after Three Standard Surveys
If the skilled nursing facility in the SFF program has not met the graduation criteria following the third standard health survey, the survey agency must schedule a conference call with the CMS location to discuss the efforts made by the skilled nursing facility towards improvement, the reasons for noncompliance, and the likelihood of the skilled nursing facility achieving sustained compliance. CMS has the authority to either use discretionary termination or continue to collaborate with the survey agency to focus on skilled nursing facility improvement.
- Revisions to Public Postings
CMS is also revising the monthly SFF postings. These listings are being updated to reflect a listing of all SFFs, including the number of months spent in the SFF program, the skilled nursing facility’s most recent standard health survey findings, recent terminations, and skilled nursing facilities that recently graduated from the SFF program.
Next Actions
- Skilled nursing facilities in the SFF program should carefully document all of their efforts to improve their quality and care to demonstrate that they are making good faith efforts to improve quality and make measurable changes.
- Skilled nursing facilities in the SFF program should engage CMS Quality Improvement Organizations and retain specialized consultants to support performance improvement.
- Skilled nursing facilities in the SFF program should implement evidence-based interventions to improve quality and take measurable and sustained operational changes (e.g., leadership or other key staffing changes, increased staffing levels, etc.) to evidence a change in its quality approaches.
If you have questions or would like additional information about this topic, please contact:
- Sean Fahey at (317) 977-1472 or sfahey@hallrender.com; or
- Your primary Hall Render contact.
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