Insights & Resources

October 3, 2022 | Alerts

Reminder for Nursing Homes – Surveyors Will Begin Enforcing Phase III Requirements Soon!

Reminder for Nursing Homes – Surveyors Will Begin Enforcing Phase III Requirements Soon!

On June 29, 2022, the Centers for Medicare & Medicaid Services (“CMS”) issued updated guidance on minimum health and safety standards for Long- Term Care facilities (“LTC”).  The guidance involved regulations that were originally adopted in 2016, with planned implementation in three phases. Phase I took effect in November 2016, Phase II took effect in November 2017 and Phase III took effect in November 2019. The implementation of the Phases happened without interpretive guidance, thus surveyors were not yet holding LTC facilities accountable for all phase requirements, specifically phase III. Now that the interpretive guidance has been released for Phase III, surveyors will begin to enforce those requirements. Thus, any LTC facilities that would like to participate in the Medicare and Medicaid programs are urged to ensure they are in compliance with the new requirements. Surveyors will begin enforcing the requirements effective October 24, 2022.

The updated requirements include the following topics:

  • Abuse and Neglect– CMS has provided information on facility-reported incidents, which includes examples of cases and clarifications, and what information surveyors should report. The information is found in Appendix PP.
  • Admission, Transfer & Discharge– CMS clarified that if a facility commences a discharge after a resident is transferred to a hospital because of an emergency transfer, the facility must have evidence to support that the resident’s status at the time the resident seeks to return to the facility meets the discharge requirements under §483.15(c)(i). The facility may not use the status of the resident at the time of the emergency transfer as evidence to support the discharge.
  • Mental Health & Substance Use Disorder (“SUD”)– In an effort to improve care for residents with mental health needs and SUD, CMS clarified that when tasked with care for these residents, the facilities’ policies and practices must not conflict with the residents’ rights or other requirements of participation. CMS added that facility personnel should have knowledge of signs and symptoms of possible substance abuse and how to address such emergencies.  Further, CMS provided resources on non-pharmacological interventions for providers to assist them in how to identify alternative approaches to support residents in this population.
  • Payroll-Based Journal Data– CMS clarified that surveyors should incorporate the use of Payroll Based Journal staffing data for their inspections to investigate potential noncompliance with CMS’s nurse staffing requirements. CMS also provided examples for deficiency categorization related to F-tags at §483.35, Nursing Services.
  • Resident Rights- CMS amended its visitation restrictions to mirror its COVID-19 guidance in an effort to prevent community-associated infection or the spread of communicable disease(s). The new guidance highlights the importance of abiding by the core principles of infection prevention.
  • Potential Inaccurate Diagnosis and/or Assessment- CMS clarified instructions on situations where an inaccurate diagnosis or code was made for a resident with schizophrenia. An inaccurate diagnosis of schizophrenia is identified as an issue related to the unnecessary prescribing of antipsychotic medications and artificially improving a facility’s performance on the long-stay antipsychotic quality measure.
  • Pharmacy- CMS clarified guidance on medications that are not defined as psychotropic medications, but that affect brain activity. The use of these “other medications” is subject to the psychotropic medication requirements if the documented use appears to be a substitution for another psychotropic medication rather than for the original or approved indication.
  • Infection Control– Each facility is required to have a part-time Infection Preventionist who has specialized training to work on site to effectively oversee the facility’s infection prevention and control program.
  • Arbitration– LTC facilities are prohibited from requiring residents to sign binding arbitration agreements as a condition of admission, or as a requirement to continue to receive care at that facility. The guidance also addresses other requirements, such as allowing residents to choose a neutral arbitrator and that facilities must make the final arbitrator’s decision available for review by CMS or its designee.
  • Psychosocial Outcome Severity Guide– In an effort to support a resident’s right to be free from abuse, CMS revised the Psychosocial Outcome Severity Guide and F-tag 600. Specifically, the application of “reasonable person concept” and severity levels for deficiencies were clarified.
  • State Operations Manual Chapter 5– CMS revised its guidance in Chapter 5 of State Investigations and Complaint allegations, specifically regarding the timeliness of investigations, tracking of allegations on CMS’ system, and reporting of all suspected crimes to law enforcement by the surveyor agency.
You may access CMS’s releases about the requirements here:

The revised guidance will be incorporated into the Long Term Care Survey Process software application. Surveyors will use the new software beginning October 24, 2022.

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Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at [email protected].