Volume XXXI, Number 9
Mandatory Immediate Imposition of Federal Remedies
On July 29, 2016, CMS issued S&C: 16-31-NH on the subject: Mandatory Immediate Imposition of Federal Remedies and Assessment Factors Used to Determine the Seriousness of Deficiencies for Nursing Homes. This memorandum was posted to the CMS website on July 31 and provides advance guidance relating to revisions in SOM Chapter 7 regarding policies on the Immediate Imposition of Federal Remedies (previously referred to as Opportunity to Correct or No Opportunity to Correct). It also notifies State Agencies that the CMS Regional Office (RO) must now immediately impose a CMP any time Immediate Jeopardy (IJ) is cited. The memorandum further states that the CMS RO must immediately impose, prior to affording a facility an opportunity to correct deficiencies, one or more federal remedies based on the seriousness of the deficiencies or when actual harm of Substandard Quality of Care is identified. The CMS RO must do so irrespective of a state recommendation to impose or not impose a remedy.
According to this memorandum, CMS is implementing a national policy that requires the use of federal enforcement remedies when one or more residents suffer significant harm. The memorandum explains that CMS and State Agencies have no statutory or regulatory obligation to provide noncompliant facilities an opportunity to correct deficiencies prior to immediately imposing federal enforcement remedies such as CMPs, directed plans or correction, or temporary management.
This guidance was effective for all surveys completed on or after September 1, 2016.
CMS has revised Chapter 7 of the SOM to define new mandatory criteria for the immediate imposition of federal remedies prior to affording a facility an opportunity to correct deficiencies; these criteria are specified in Section §7304.1 of the SOM. CMS requires that any deficiency cited at a Scope and Severity (S/S) level of J or higher (IJ level) will require immediate imposition of a CMP, in additional to any other remedies imposed.
The survey agency (state or federal) must enter all cases when facilities are not allowed an opportunity to correct deficiencies prior to the immediate imposition of federal remedies (as defined in §7304.1) into the ASPEN Enforcement Manager system as a “No Opportunity to Correct” within five business days of the initial notice to the facility. The state must transfer all of these cases to the RO for their review and imposition of federal remedies, and the RO must take action to impose remedies as described in the policy, regardless of the state’s recommendation and in consideration of the seriousness of the deficiencies following existing criteria.
Section §7400.5.1 of the SOM specifies revisions to Factors that Must Be Considered When Selecting Remedies and the Assessment Factors Used to Determine the Seriousness of Deficiencies Matrix. Specifically, S/S citations at levels A, B, and C now all indicate that no remedies are required, and Termination and Temporary Management have been added as possible remedies under Category 2.
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