Chapter 21 Federal Regulations

specific adapted equipment needed for eating/feeding has been written on the resident’s tray card.

Part 3: How Not to Recur OT/nursing will be given in-service training on the proper procedure for ordering or notifying the dietary department about residents needing adaptive equipment.

Part 4: Monitoring

The food-service manager will be responsible for the card notations and for ensuring that a system is in place for keeping track of adaptive equipment. The RDN will monitor or the staff development nurse will do weekly care plan/implementation audits, depending on where the problem is.

SOM, Chapter 7, “Survey and Enforcement Process for Skilled Nursing Facilities and Nursing Facilities” (12), explains the survey process, protocols, informal dispute resolution (IDR) process, definitions of substandard quality of care, extended surveys, fre- quency of surveys, the enforcement process, civil money penalties, and more. It is a chapter worth reading. The sections that are important from this chapter are the IDR and civil money penalties (CMP) explanations.

Informal Dispute Resolution The facility is offered one opportunity to question cited deficiencies through an IDR. The facility must request an IDR in writing within the same 10-day period of submitting their POC to the State Agency. They must specify which citations they are disputing. If the citation is one that involves the RDN, the RDN will participate in the process and provide necessary documentation and professional standards they use. The facility will no longer be able to simply request the surveyor work notes when using the IDR process. These can be obtained through the Freedom of Information Act, but this is a lengthy process that often results in the information being available after the time needed. If the facility disagrees with the results of the IDR, they may request a hearing before an administrative law judge of the Department of Health and Human Services, Departmental Appeal Board. The IDR process is described in Section 7212.2 in Chapter 7 of the SOM (12).

CIVIL MONEY PENALTIES CMS imposes CMP to facilities when there is a certain level of citation written. This level would be based on substandard quality of care in regulations that fall under Resident Behavior and Facility Practices; Quality of Life; or Quality of Care at the level of

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widespread Level 2 (F citation); Level 3 (G, H or I citations); or at the level 4 of Immediate Jeopardy (IJ). There is a recent trend by CMS to impose daily CMPs, particularly where IJ is cited. In the past, these findings usually resulted in a per instance (one time) civil money penalty. The current trend by CMS is to impose daily CMPs. In addition, CMS is required to impose CMPs in the range of $3,050 to $10,000 per day where IJ is present. The federal regulations allow CMS to commence a daily CMP on the first date that CMS determines that IJ has occurred (not necessarily corresponding to the survey date). The CMP continues until substantial compliance has been achieved (as ver- ified by an on-site revisit survey conducted after issu- ance of the statement of deficiencies). CMS rules also provide that the high-limit CMPs ($3,050 to $10,000 per day) must continue until there is satisfactory evi- dence that the IJ has been removed (abated). Once the IJ has been abated, CMS will continue to impose a daily CMP but at a lower level (historically at $100 to $400 per day) until substantial compliance is achieved. CMS released a Civil Money Penalty Analytic Tool (found at www.cms.gov/Medicare/Provider- Enrollment-and-Certification/SurveyCertification GenInfo/Dounloads/Survey-and-Cert-Letter-15-16.pdf) to assist in promoting the consistent (and increased) application of CMPs.

REGULATIONS AND INTERPRETIVE

GUIDELINES A licensed facility is expected to be in substantial compliance with Medicare/Medicaid program requirements and state law on a continual basis. In order to do this, they must regularly meet their regu- latory requirements as outlined in Appendix PP of the SOM. There are over 180 federal regulations and in most states an equivalent number of state regula- tions that are reviewed during an inspection. The survey process that is carried out by the contracted state agency follows a prescribed survey process, either traditional or QIS, and reviews regulatory compliance with regulations. Many of the regula- tions have been further defined with interpretive guidance to surveyors. The guidance is for clarifica- tion and cannot be used as the basis for a citation to the facility. See Table 21.7 (see pages 324–325) for regulations that may impact nutrition or dietary services.

UNDERSTANDING THE FIVE-STAR RATING SYSTEM

CMS created the Five-Star Quality Rating System to help potential residents/consumers, their families,