May 9, 2018

Skilled nursing facilities (SNFs) need to adjust how they prepare for and react to government surveys due to new rules of participation issued by the Centers for Medicare & Medicaid Services (CMS) that became effective on November 28, 2017. It is essential that SNF administrators, directors of nursing (DONs), and managers become familiar with the new regulations so they are well-prepared for annual surveys and complaint/incident investigations. SNFs that address compliance strategies ahead of time can decrease the chance of survey findings that can lead to substantial civil monetary penalties and other sanctions.

Unescorted Facility Tours

The new rules of participation require surveyors to walk unescorted through the building during an assessment, indicating that CMS no longer wants SNF staff to lead facility tours. This makes it more difficult for a SNF to determine what issues caught the surveyors' attention and on which incidents they might be focusing. As a result, SNF managers may want to try to accompany surveyors anyway until surveyors specifically ask to tour without an escort. Even then, keeping an eye on which residents and employees the surveyors are talking to may provide SNF managers with valuable insight, allowing them to gather information to explain the facility's side of a potential issue to the surveyors.

Recorded Resident Interviews

Surveyors may record resident interviews under the new rules of participation, but it is important to note that in some states, including Illinois, both parties to a conversation must consent to audio recordings. SNFs may want to emphasize this to residents before a survey begins.

Surveyor interviews will focus on newly admitted residents, including a review of admission packets for residents admitted in the past 30 days. Managers should pay special attention to the admission and orientation process to help ensure that residents are well-oriented and have been given all of the necessary documentation, including the list of resident rights.

Involuntary Transfer and Discharge Process

CMS has instructed surveyors to pay special attention to possible SNF abuses of the involuntary transfer and discharge (ITD) process. When issuing an ITD notice, SNFs need to check all of the necessary boxes, including the box indicating where the SNF will transfer or discharge the resident, and send a copy to both the resident's representative and the state ombudsman.

Some CMS and Illinois Department of Public Health (IDPH) memoranda have even implied that SNFs must serve a Notice of Involuntary Transfer or Discharge on a resident who is hospitalized, even if the SNF fully anticipates the resident returning after the hospitalization. Fortunately for SNFs, the IDPH does not seem to be focusing on this directive, and perhaps this will not actually become an issue. In the interim, SNFs should at least provide residents and their representatives with a copy of the bed-hold rules if the resident is hospitalized.

Other Key Changes

The new rules of participation also focus on errors that may occur when crushing medications. SNFs should train nursing staff to crush each medication separately, rather than crushing several resident medications together. The surveyors will cite four resident medications crushed together as four separate medication errors.

Surveyors will also focus on smoking issues. SNFs should clearly post resident and staff smoking policies and ensure that the policies are enforced. Resident care plans should address assistance and supervision as needed to ensure resident safety while smoking. Areas where smoking is permitted should be regularly cleaned and monitored.

Training Staff on Speaking with Surveyors

Employees often feel pressured to answer a surveyor's question immediately for fear that they will otherwise come across as uninformed or incompetent. Surveyors' questions, however, sometimes involve incidents that occurred months earlier, and employees may not have all of the clinical and factual details fresh in their minds. To prepare for situations like this, SNFs should train employees to politely tell the surveyor that they remember the incident, but not all of the clinical and factual details. Rather than mistakenly saying something inaccurate, employees should ask for a moment to review the clinical records and nursing notes to ensure accurate reporting. This will help prevent employees from misstating facts or making admissions that can lead to serious survey sanctions.

For more information on the new CMS regulations or for guidance regarding a specific matter, contact your Much Shelist attorney or a member of our Labor & Employment practice.

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.