In October 2022, Centers for Medicare & Medicaid Services (CMS) made some significant changes to the Special Focus Facility (SFF) program that raise the bar for completion of the program and that increases enforcement actions for nursing homes that fail to demonstrate improvement.

The Affordable Care Act mandated that underperforming nursing homes undergo increased inspection and progressive enforcement actions through the SFF program. Sections 1819(f)(8) and 1919(f)(1) of the Social Security Act require CMS to conduct an SFF program which analyzes nursing homes that demonstrate persistent noncompliance with CMS regulations leading to a substantial quality of care. See 42 U.S.C. §§ 1819(f)(8), 1919(f)(1). The CMS SFF program requires the persistently poor performing facilities selected in each state to be inspected at least once every six months and that enforcement actions are taken when warranted. Despite the current SFF program and demonstrated improvement from certain facilities, CMS has found that some facilities remain on the program by failing to show the necessary improvement needed to graduate from the program. CMS has seen certain facilities graduate from the SFF program only to backslide into a non-complaint state, rendering the facility in question to be placed back on the SFF program. To combat this, CMS has authorized revisions to the SFF program to improve quality of care that residents living in a non-compliant facility receive. Additionally, because of CMS’ belief that staffing levels have a significant impact on quality of care, CMS is advising State Survey Agencies to consider a facility’s staffing level, in addition to its compliance history, when selecting candidates from their state for inclusion into the SFF program.

Effective Date: Immediately (Date of Issuance: Oct. 21, 2022)

Summary of Special Focus Facility Program:

The SFF program has been revised to include:

• Making requirements tougher: CMS is adding a threshold that prevents a facility from exiting the SFF program based on the total number of deficiencies cited. A facility may not graduate from the SFF program without demonstrating systemic improvements in quality.

• Terminating federal funding for facilities that do not improve: CMS is considering all facilities with Immediate Jeopardy (IJ) deficiencies on any two surveys while in the SFF program for discretionary termination from the Medicare and/or Medicaid programs.

• Increasing enforcement actions: CMS is imposing more severe, escalating enforcement remedies for SFF program facilities that have continued noncompliance and little or no demonstrated effort to improve performance. In exercising its discretion to impose progressive enforcement, including discretionary termination on a facility, CMS will consider the following factors:

  • A facility’s efforts to improve performance;

  • The circumstances or details of any noncompliance that occurred; and

  • Situations when discretionary termination may potentially interfere with access to care.

• Incentivizing sustainable improvements: CMS is extending the monitoring period and maintaining readiness to impose progressively severe enforcement actions against nursing homes whose performance declines after graduation from the SFF program.

New Jersey has no facilities that have been newly added to the SFF program as of October 2022; two facilities have completed the SFF program and two facilities have shown improvement within the SFF program. Additionally, New Jersey has four facilities included on the SFF program candidate list. You can access the state-by-state breakdown of facility SFF program placement at CMS Document Ref: QSO-23-01-NH available at https://www.cms.gov/files/document/qso-23-01-nh.pdf.

Special Thanks to Trenton Rawdan, Penn State Legal Extern