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Revisiting effectiveness of your SNF compliance programs: Thoughts and tips

Cornelia Dorfschmid (cdorfschmid@strategicm.com) is Executive Vice President & Managing Senior Consultant, and Alexis Rose (arose@strategicm.com) is Associate Consultant at Strategic Management Services LLC in Alexandria, VA.

The Patient Protection and Affordable Care Act (ACA) of 2010 mandated nursing facilities (NF) and skilled nursing facilities (SNF) adopt compliance and ethics programs.[1] On October 4, 2016, the Centers for Medicare & Medicaid Services (CMS) published a final rule, The Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities(the 2016 final rule), which outlined the requirements for NF and SNF compliance and ethics programs.[2] As Requirements of Participation (RoP) with Medicare, the final rule required NFs and SNFs to have compliance and ethics programs in place on or before November 28, 2019. However, over the past several years, to reduce the regulatory burden for providers and suppliers following the original publication of the 2016 final rule, CMS has revised the Conditions of Participation (CoPs), the Conditions for Coverage (CfCs), and requirements for long-term care (LTC) facilities.

In response, CMS has proposed to delay the implementation of the Compliance and Ethics Program rule (42 C.F.R. § 483.85) and amend certain parts of Phase III requirements, including compliance programs. On July 16, 2019, CMS released a proposed rule regarding the Requirements for States and Long-Term Care Facilities (the 2019 proposed rule).[3] The revisions affected various sections including the Quality Assurance and Performance Improvement (QAPI) program ( 42 C.F.R. § 483.75 ) and the compliance and ethics program ( 42 C.F.R. § 483.80 ) requirements. Both the changed expectations in the 2019 proposed rule, including the proposed year-long delay, are now putting providers in a state of uncertainty as to what and how much they might have to do next. The comment period for the 2019 proposed rule closed on September 16, 2019, but the final rule is not likely to be published anytime soon. In late November, the 2019 proposed rule was moved from the “proposed rule” category to the “long-term action” category, which means the rule is “under development but for which the agency does not expect to have a regulation action within the 12 months after publication.”[4] Therefore, it is still important to revisit the 2016 final rule and stay proactive, putting in place an effective and sustainable compliance program.

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