The CMS Special Focus Facility Initiative
Nursing homes should be mindful of the Centers for Medicare & Medicaid Services (“CMS”) recent initiative aimed at addressing nursing homes with an “in and out” compliance history – the Special Focus Facility (“SFF”) initiative. Most nursing homes will have some deficiencies cited during the survey process and are generally able to correct the deficiencies within a reasonable time. The SFF initiative is designed to address those nursing homes with systemic problems and repeated cycles of serious deficiencies.
The SFF designation is given to nursing homes with a pattern of serious problems that persist over a long period of time. CMS and the Louisiana Department of Health (“LDH”) visit nursing homes on a regular basis to assess whether these facilities are providing the quality of care that Medicare and Medicaid requires. These visits identify deficiencies in quality of care, as well as deficiencies in meeting CMS safety requirements. If these deficiencies are not corrected in a timely manner, or if the nursing home has a pattern of problems that persist over a long period of time, CMS may choose to include the facility on its list of potential candidates for the SFF designation. The LDH then selects SFF facilities from the list of candidates provided by CMS based on the following criteria: (1) the number, scope and severity of deficiencies identified on annual inspection surveys for the three most recent standards surveys; (2) the number, scope and severity of substantiated findings for the most recent 36 months of complaint investigations; and (3) the number of revisits required to ensure identified deficiencies have been corrected. Once selected by LDH, CMS provides final approval of SFF candidates.
Upon receiving an SFF designation, the nursing home must provide certain information to LDH and CMS. The nursing home must also send notification of its SFF designation to residents, resident representatives, resident families and resident counsel and/or family counsel primary contacts. This notification must explain that the nursing home has been selected as an SFF due to a persistent pattern of poor quality on the facility’s last three standards surveys and complaint surveys.
While a nursing home is in the SFF program, LDH will survey the facility twice as frequently as other nursing homes, or at least once every six months. CMS requires LDH to recommend progressively stronger enforcement actions in the event that the facility continually fails to meet the requirements for participation with the Medicare and Medicaid programs. The longer the problems persist, the more stringent the enforcement actions will be. Examples include civil monetary penalties, discretionary denial of payment for new admissions, directed plan of correction, or temporary facility management.
Within about 18-24 months after a facility is identified by CMS as an SFF, there will generally be one of three possible outcomes:
Termination from Medicare and Medicaid. The nursing home is terminated from participation in the Medicare and Medicaid programs because the facility has failed to achieve and maintain significant improvements.
- Prolonged time on the SSF list. The nursing home is allowed to continue in the SFF program because there has been progress, such as the sale of the nursing home to another owner with a better track record of providing quality care.
- Improvement and graduation from the SFF program. The nursing home graduates from the SFF program because it has made significant improvement in quality of care, and those improvements are continued over time.
Approximately 50% of the nursing homes in the SFF program significantly improve their quality of care within 24-30 months of receiving the designation, while about 16% end up terminated from Medicare and Medicaid.
While the initial SFF designation is not appealable, the facility does have some appeal rights. Federal regulations allow for dispute resolution and to appeal a finding of noncompliance determined under an SFF survey that results resulting in an enforcement remedy.
Should you find your nursing home on the SFF designation list, we recommend that you contact legal counsel. There may be time sensitive action required by a nursing home facility that receives notice of this designation. It’s also important to discuss long term legal strategy following an SFF designation and the facility’s best path to improvement.