Loyola University Chicago School of Law, JD 2024
The Centers for Medicare and Medicaid Services (CMS) manages an oversight program for nursing homes known as the Special Focus Facilities (SFF) program. Nursing homes that are placed in the program have almost double the deficiencies as other nursing homes, more serious issues in terms of injury and persistent problems that are never addressed. On October 21, 2022, CMS issued a press release regarding changes to its SFF program. The new changes will increase accountability for these facilities and encourage them to make quicker improvements. This action comes following the Biden-Harris Administration’s promise to increase safety and quality of care in poor-performing nursing homes.
How facilities qualify for the SFF program and original requirements under the program
CMS inspects nursing homes regularly and cites deficiencies. Based on surveys they have conducted over the past three years, CMS counts the number of citations a facility has received along with the scope and severity (S/S) of the deficiencies. CMS then converts its findings into points, and facilities with the highest points are added to the pool of candidates for the SFF program. The number of facilities that are then chosen from the pool of candidates, may range anywhere from five to 30 for each state. State Agencies (SA) are responsible for choosing the facilities and once they are placed under the program, SA must conduct inspections every six months to ensure that certain standards are being met. SA may take actions, such as imposing fines, to encourage nursing homes to make the necessary improvements. Currently, a facility cannot leave the SFF program unless it exits the Medicare/Medicaid program or graduates. Graduation requires 12 or fewer deficiencies for two successive health surveys and an S/S level of at most “E” for each survey. An S/S level of “E” indicates that the scope of the deficiency is patterned and the severity constitutes “no actual harm with potential for more than minimal harm that is not immediate jeopardy.”
Goals of the Biden-Harris Administration and changes to the SFF program
The COVID-19 pandemic brought many challenges over the past two years, but it also exposed the lack of care and staffing shortages at some nursing homes. Nursing homes were continuously linked to a higher number of deaths from the virus. This raised red flags and influenced the Biden-Harris Administration’s decision to increase scrutiny of nursing homes. The Biden-Harris Administration released a statement in February of this year announcing its plan to increase safety and improve quality of care in nursing homes that are putting patients at risk. The Administration ensured that it would provide sufficient staffing of adequately trained individuals, increase accountability for poor-performing nursing homes, and provide more information to the public about conditions at these facilities. Changing the SFF program is just one aspect of the Administration’s goal. The Administration hopes that by increasing scrutiny of facilities under the program, they will act quicker to make changes and improve safety/care. Otherwise, the facilities will be at risk of facing termination from the Medicare and Medicaid programs along with other serious enforcement actions.
More specifically, changes to the SFF program will make it more difficult for a facility to leave the program. Under the current requirements, a facility can leave by “graduating”, but now, CMS will require facilities to show actual “systemic improvements in quality.” This means that a facility can no longer graduate based solely on the number of deficiencies. Further, CMS will consider discretionary termination from the Medicare and Medicaid programs if a facility is cited for a deficiency that qualifies on the severity scale as “immediate jeopardy”, on any one of the surveys. CMS will not only increase enforcement actions for continued violations, but also extend the monitoring period to encourage facilities to maintain proper quality of care even after graduation. The Administration and CMS are also concerned with staff shortages and their impact. To ensure that staff shortages do not deprive residents from receiving proper care, CMS will also require minimum staffing levels and these levels will be taken into consideration when choosing facilities for the SFF program.
Why the SFF program revisions are important
Currently, only 0.5% of all nursing homes have been placed in the SFF program. While this may seem like a small percentage, it still makes a significant impact because 0.5% constitutes 88 poor-performing nursing homes where residents are continuously put at risk of harm. As health care facilities, nursing homes need to prioritize the care of their residents. Residents should be able to trust and rely on their nursing homes for high-quality care. The SFF program revisions will incentivize nursing homes to ensure that health and safety standards are continuously being met.