Key Questions About Nursing Home Regulation and Oversight in the Wake of COVID-19

Issue Brief
  1. A Medicare skilled nursing facility (SNF) is an institution or distinct part that is primarily engaged in providing skilled nursing care and related services or rehabilitation services. 42 U.S.C § 1395i-3 (a).

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  2. A Medicaid nursing facility (NF) is an institution or distinct part that is primarily engaged in providing skilled nursing care and related services, rehabilitation services, or health-related care and services on a regular basis to individuals who because of their mental or physical condition require institutional care and services above the level of room and board. 42 U.S.C. § 1396r (a). In addition, SNFs and NFs cannot be primarily for the care or treatment of mental illnesses and must have a transfer agreement in effect with one or more hospitals. Id.; 42 U.S.C. § 1395i-3 (a).

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  3. The exception is state facilities, which are certified by the Secretary. 42 U.S.C § § 1395i-3 (g); 1396r (g).

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  4. 42 U.S.C. § 1396b (a)(2)(D).

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  5. 42 U.S.C. §§ 1395i-3 (g)(4); 1396r (g)(4).

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  6. States must maintain a registry of abuse, neglect, and misappropriation findings. 42 U.S.C. §§ 1395i-3 (g)(1)(C); 1396r (g)(1)(C).

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  7. 42 U.S.C. §§ 1395i-3 (g)(1)(B); 1396r (g)(1)(B).

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  8. For Medicare SNFs, states recommend penalties to be imposed by the Secretary based on survey results, and the Secretary also can independently impose penalties based on survey results or other findings. 42 U.S.C. § 1395i-3 (h). For Medicaid NFs, state law must include the specified penalties, which are imposed by states based on survey results or other findings. 42 U.S.C. § 1396r (h).

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  9. The facility must pay the temporary manager’s salary. If the immediate jeopardy is also substandard care quality, the state must notify each resident’s attending physician and the state facility administrator licensing board. 42 U.S.C. § § 1395i-3 (g)(5)(B), (C); 1396r (g)(5)(B),(C).

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  10. A CMP can be reduced in two ways, though only one penalty reduction can be applied. A CMP is reduced by 35 percent if a facility waives its right to a hearing to dispute the penalty. Or, a CMP may be reduced by 50 percent if a facility self reports and promptly corrects a deficiency, except that CMPs for repeat deficiencies within the prior year and for deficiencies found to result in a pattern of harm or widespread harm, immediately jeopardy to resident health or safety or resident death may not be reduced. 42 U.S.C. § § 1395i-3 (h)(2)(B)(ii); 1396r (h)(3)(C)(ii).

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  11. 42 U.S.C. § § 1395i-3 (g)(4); 1396r (g)(4).

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  12. Institute of Medicine 1986. Improving the Quality of Care in Nursing Homes. Washington, DC: The National Academies Press at 5. https://doi.org/10.17226/646.

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  13. Id. at 79.

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  14. KFF, Key Issues in Long-Term Services and Supports Quality (Oct 2017), https://www.kff.org/medicaid/issue-brief/key-issues-in-long-term-services-and-supports-quality/.

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  15. Medicaid NFs are subject to additional preadmission screening and resident review (PASRR) requirements to ensure that individuals with serious mental illness or intellectual disabilities require a nursing facility level of services and whether any specialized services are required. PASRR reviews are conducted by the state mental health or developmental disability authorities upon admission and when there is a significant change in a resident’s condition. 42 U.S.C. § 1396r (e)(7).

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  16. 81 Fed. Reg. 68688 (Oct. 4, 2016), https://www.govinfo.gov/content/pkg/FR-2016-10-04/pdf/2016-23503.pdf.

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  17. 42 C.F.R. § 483.75.

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  18. 42 C.F.R. § 483.85.

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  19. 42 C.F.R. § 483.73.

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  20. U.S. Gov’t Accountability Office, Infection Control Deficiencies Were Widespread and Persistent in Nursing Homes Prior to COVID-19 Pandemic (May 20, 2020), https://www.gao.gov/assets/710/707069.pdf.

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Appendix
  1. There must be a 12-month statewide average interval between standard surveys 42 U.S.C. § § 1395i-3 (g)(2)(A)(i), (iii)(I); 1396r (g)(2)(A)(i), (iii)(l). The Secretary conducts surveys of a representative sample of facilities in each state, within two months of state surveys, to validate state findings. If the Secretary finds that a state’s surveys were inadequate, the state is subject to sanctions, including a correction plan, training, and/or technical assistance for SNF survey inadequacies, and a reduction in federal matching funds for Medicaid administrative costs for a pattern of failure to identify deficiencies and training for NF survey deficiencies. 42 U.S.C. § § 1396r (g)(3)(C) 1395i-3 (g)(3)(C); 42 C.F.R. § 488.320.

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  2. Substandard care quality includes one or more deficiencies in the following areas: treating residents with dignity and respect and in a manner that promotes quality of life; providing equal access to quality care regardless of condition severity or payment source; ensuring residents can freely exercise rights; not imposing physical or chemical restraints for discipline or convenience; reasonably accommodating resident needs and preferences in receiving services; allowing married residents to share a room with spouse; allowing residents to have roommate of their choice; providing written notice of change of room or roommate; allowing residents to choose activities, schedules, health care and providers; allowing residents to make choices about aspects of facility life significant to the resident; allowing residents to participate in community activities; allowing resident and family groups; allowing family or representatives of the resident to meet in the facility with other residents’ family or representatives; and providing a safe, clean, comfortable, and homelike environment. 42 C.F.R. § 488.301.

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  3. 42 U.S.C. § § 1395i-3 (g)(2)(B); 1396r (g)(2)(B).

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  4. 42 U.S.C. § § 1395i-3 (g)(2)(A)(iii)(II); 1396r (g)(2)(A)(iii)(ll).

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  5. 42 U.S.C. § § 1395i-3 (g)(3); 1396r (g)(3).

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  6. 42 U.S.C. § § 1395i-3 (g)(2)(A)(ii); 1396r (g)(2)(A)(ii).

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  7. 42 U.S.C. § § 1395i-3 (g)(2)(B)(iii); 1396r (g)(2)(B)(iii).

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  8. The Secretary also is responsible for providing survey team training. 42 U.S.C. § § 1395i-3 (g)(2)(C), (E)(iii); 1396r (g)(2)(C) (E)(iii).

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  9. 42 C.F.R. § 488.314 (a)(2).

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  10. 42 U.S.C. § § 1395i-3 (g)(2)(E)(i), (ii); 1396r (g)(2)(E)(i), (ii).

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  11. 42 U.S.C. § § 1395i-3 (g)(5)(A); 1396r (g)(5)(A).

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  12. 42 U.S.C. § § 1395i-3 (g)(5)(E); 1396r (g)(5)(E).

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  13. Institute of Medicine 1986. Improving the Quality of Care in Nursing Homes. Washington, DC: The National Academies Press at 147. https://doi.org/10.17226/646.

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  14. Id. at 242.

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  15. See generally Id.

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  16. Id. at 6.

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  17. Id. at 3-4.

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  18. KFF, Implementation of Affordable Care Act Provisions to Improve Nursing Home Transparency, Care Quality, and Abuse Prevention (Jan. 2013), https://www.kff.org/medicaid/report/implementation-of-affordable-care-act-provisions-to-improve-nursing-home-transparency-care-quality-and-abuse-prevention/.

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  19. Id.

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  20. KFF, Key Issues in Long-Term Services and Supports Quality (Oct 2017), https://www.kff.org/medicaid/issue-brief/key-issues-in-long-term-services-and-supports-quality/.

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