August 9, 2022

Volume XII, Number 221


August 08, 2022

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CMS Adopts Major Changes to LTC Facility Surveyor Guidance

On June 29, 2022, the Centers for Medicare and Medicaid Services (CMS) announced it issued significant changes to surveyor guidance for Long Term Care (LTC) facility health, quality and safety standards.[1] 

Some of the changes reflect clarifications to requirements that become effective during Phase 2 of the revised Requirements for Participation for LTC facilities which CMS adopted in 2016.[2] Other changes provide initial guidance to implement Phase 3 of the requirements, which became effective in 2019 (e.g., the need to have an Infection Preventionist, the prohibition regarding arbitration agreements).

CMS is particularly focused on staffing levels and added new requirements for surveyors to incorporate the use of Payroll Based Journal staffing data for their inspections. CMS believes this will help surveyors better identify potential noncompliance with nurse staffing requirements, such as the lack of a registered nurse for eight hours each day, or the lack of licensed nursing for 24 hours a day.

Other areas of significant change include:

  • Clarification of abuse reporting requirements, including the provision of sample reporting templates; CMS provides examples of abuse that, because of the action itself, would be assigned to certain severity levels.

  • Requiring each LTC facility to have an Infection Preventionist who has specialized training to effectively oversee the facility’s infection prevention and control program.

  • Revisions to mental health and substance use disorder guidance to help meet the unique needs of LTC facility residents with those challenges. CMS also clarified the minimum level of knowledge and skills necessary for facility staff to ensure that the policies and practices do not conflict with resident rights or other participation requirements.

  • Addressing unnecessary use of non-psychotropic drugs in addition to antipsychotics, and gradual dose reduction.

  • Clarification of the “reasonable person concept” and severity levels for deficiencies related to the psychosocial outcome severity guide.

Although there are no new requirements related to resident room capacity, CMS also took the opportunity to urge LTC providers to consider making changes to accommodate a maximum of double occupancy in each room and encourages providers to allow for more single occupancy rooms, particularly in light of the COVID-19 pandemic.

CMS plans to provide training on the revised standards to surveyors and nursing home stakeholders on June 29th through its Quality, Safety and Education Portal: (


[1] Fact Sheet: Updated Guidance for Nursing Home Resident Health and Safety | CMS.

[2] CMS Memo: Revised Long-Term Care Surveyor Guidance: Revisions to Surveyor Guidance for Phases 2 & 3, Arbitration Agreement Requirements, Investigating Complaints & Facility Reported Incidents, and the Psychosocial Outcome Severity Guide | CMS.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XII, Number 186

About this Author

Lourdes Martinez New York Corporate Attorney Sheppard Mullin

Lourdes M. Martinez is a Partner in the Corporate Practice Group in Sheppard Mullin's New York office.

Lourdes' practice includes defending clients in criminal, civil and regulatory government actions; assisting clients in implementing both fraud and abuse and HIPAA compliance programs; and advising clients on a wide array of compliance, regulatory and business matters.

She has defended clients in federal False Claims Act cases, quality of care cases, physician licensing matters and federal, state and other third-party...

Gregory Smith New York Corporate Attorney Sheppard Mullin

Gregory Smith is a Partner in the Corporate Practice Group in Sheppard Mullin's New York office. 

With a broad regulatory and transactional background, Gregory routinely counsels clients on a wide range of health care matters. His practice is focused on compliance and regulatory issues, and includes extensive experience with federal and state anti-referral laws, including the federal Stark law, Anti-Kickback Statute and Civil Monetary Penalties Law.

Gregory has guided a broad range of providers through the voluntary...