November 1, 2019

Effective November 28, 2019, federal and state nursing home surveyors will have the authority to review a skilled nursing facility's (SNF) corporate compliance plan, compliance meeting notes, and compliance investigations, as well as cite survey violations for a facility's failure to have properly adopted and implemented a compliance plan.

Previously, compliance plans were required as a means to prevent SNFs from billing the government for bad care, or care not provided, and to prevent False Claims Act violations, Stark violations, kickbacks, contracts above fair market value for which the government reimbursed a facility, and other financial wrongdoing resulting in government overpayments. Providers implemented compliance plans to help prevent both criminal and civil actions brought by the government and by whistleblowers.

But now, compliance plans will become a survey issue.

The Centers for Medicare & Medicaid Services (CMS) generated a new section of the Code of Federal Regulations, 42 CFR 483.85, and a new corresponding F Tag, F 895, giving federal and state surveyors authority to review all such compliance documents to determine if a regulatory violation has occurred. CMS has not yet issued any surveyor guidance regarding what surveyors should consider in citing violations of the new F Tag, however.

F 895 does not substantively alter CMS's previously issued corporate compliance plan requirements, which became mandatory in 2013. Rather, the new F Tag for the first time gives surveyors the ability to cite a facility for a compliance system that does not meet those previously issued standards, or for failing to properly implement a compliance plan.

F 895 says that a SNF's compliance plan must be designed to detect and prevent criminal, civil, and administrative violations. A compliance plan must achieve the following:

  • establish a system for employees, contractors, and volunteers to report suspected compliance issues without any retaliation
  • assign specific compliance tasks to high-level employees, give those high-level employees sufficient resources and authority to assure compliance, and avoid giving compliance tasks to employees who the facility knows or should know have themselves engaged in wrongdoing
  • communicate the plan requirements to employees, contractors, and volunteers
  • allow for discipline for anyone who violates the compliance plan or who fails to report suspected violations
  • require the compliance committee to investigate and resolve all compliance complaints

All SNF owners, management companies, and their compliance officers should educate each SNF administrator and Director of Nursing about this new F Tag, and ensure they have ready access to all of the compliance documents that the surveyors will start asking for on November 28.

In keeping with CMS regulations effective in 2016, all "operating organizations" that "operate" five or more SNFs must have a single compliance plan, one chief compliance officer, one compliance committee, and a compliance liaison at each facility. CMS, however, has never defined what the terms "operating organization" or "operates" mean. Some management companies have taken the position that they merely provide billing and human resources services to a facility, even one that is commonly owned, and that each facility may therefore have its own compliance plan, compliance officer, and compliance committee. Other management companies have decided to have a single plan, a single chief compliance officer, and a single compliance committee, with liaisons at each facility.

Much's health care lawyers have drafted scores of corporate compliance plans for SNFs and other health care providers, and can help draft and properly implement compliance plans to meet all survey and other standards. Contact a member of Much's Health Care group for additional guidance.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.