February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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Feds Announce More Aggressive Enforcement of Poor Performing Nursing Homes

In February of 2022, during his State of the Union Address, President Biden announced an action plan to improve the safety and quality of care in the nation’s nursing homes.[i] On October 21, 2022, Centers for Medicare and Medicaid Services (CMS) announced new requirements to help with oversight of facilities selected to the Special Focus Facilities (SFF) Program.[ii]

The SFF Program was created to help and oversee the poorest performing nursing homes in the country and improve nursing homes that have a history of noncompliance.  The goal is to improve safety and quality of care. The facilities selected for the SFF Program must be inspected no less than once every six months and if severe enforcement is needed, it is at the discretion of the state surveyors. The main objective for the SFF Program is for facilities to show exponential improvement, graduate from the program, and then maintain compliance and better quality of care and safety.

The new CMS requirements, outlined below, are aimed at facilities that continuously fail to improve and remain in the SFF Program for a prolonged period of time. Health and Human Services Secretary Xavier Becerra stated, “Let us be clear: we are cracking down on enforcement of our nation’s poorest-performing nursing homes. As President Biden directed, we are increasing scrutiny and taking aggressive action to ensure everyone living in nursing homes gets the high-quality care they deserve. We are demanding better because our seniors deserve better.”

CMS announced the following revisions to the SFF Program:

  • Effective immediately, CMS will use escalating penalties for violations for deficiencies cited at the same level in subsequent surveys. This can include possible discretionary termination from Medicare and/or Medicaid funding for facilities that are cited with immediate jeopardy deficiencies on any two surveys while participating the in the SFF Program.

  • CMS will consider facilities’ efforts to improve when considering discretionary termination from Medicare and/or Medicaid programs.

  • CMS will impose more severe escalating enforcement remedies for SFF Program facilities for noncompliance and no effort to improve performance.

  • Increased requirements that nursing homes in the SFF Program must meet to graduate from the SFF Program.

  • For three years after graduation from the SFF Program, CMS will ensure nursing homes consistently maintain compliance with safety requirements by continuing to closely monitor these facilities. 

  • CMS is offering more support resources to facilities selected for the SFF Program.

Additionally, the Biden administration released a fact sheet with the steps they are taking to in improve the quality of nursing homes. [iii] Some of the steps mentioned include more resources to support union jobs in nursing home care, establishing minimum staffing requirements, incentivizing quality performance through Medicare and Medicaid funding, and enhanced efforts to prevent fraud and abuse.

Should you have questions about the recent revisions to the SFF Program or its expectations, please contact your Dinsmore Attorney.

  1. https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/...

  2. https://www.cms.gov/files/document/qso-23-01-nh.pdf

  3. https://www.whitehouse.gov/briefing-room/statements-releases/2022/10/21/...

© 2023 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume XII, Number 298

About this Author

Thomas Hess, health care industry attorney, Dinsmore Shohl, law firm

Annually appearing on The Best Lawyers in America list, as well as the Ohio Super Lawyers list, Tom has over 30 years of experience representing health care providers before state, federal and administrative courts across the country. He is the Practice Group Leader for the Government Relations and Health Law Practice Groups.

Leveraging extensive experience with a thorough understanding of the issues facing the health care industry, Tom takes a practical, yet aggressive approach to help clients meet their needs while also...

Kelly A. Leahy Healthcare Attorney Dinsmore & Shohl Columbus

Kelly’s past experience as in-house counsel enables her to advise health care providers of all sizes on a wide variety of issues. Her clients include hospitals, nursing homes, home health agencies, hospice providers, medical practices, doctors, nurses, ambulance companies, medical spas, and clinics, all of whom rely on Kelly’s ability to anticipate a client’s potential needs and opportunities. She guides clients on compliance, corporate, transactional, and business matters, enabling health care organizations to limit potential liabilities while simultaneously meeting...

Sydney Pahren, Dinsmore Law Firm, Columbus, Corporate Law Attorney

Sydney is a member of Dinsmore’s Corporate Department, where she focuses her practice on health care law. 

She has experience researching legal issues in health care, litigation, labor & employment and corporate law. She is a graduate of The Ohio State University Moritz College of Law where she was an articles editor on the Ohio State Law Journal and an executive board member of the Black Law Students Association. 

Bryan L. Cockroft Health Law Attorney Dinsmore Shohl

Bryan focuses his practice on health care law. His experience includes a one-year fellowship at TriHealth, Inc. in Cincinnati Ohio where he assisted with the drafting of TriHealth’s COVID-19 vaccination policy; working with in-house and outside counsel on physician contracting, clinical trial agreements, and vendor contracting; and conducting legal research on compliance, hospital credentialing, and telemedicine. He received his J.D. from University of Cincinnati College of Law where he participated in the Entrepreneurship and Community Development Clinic.