The Centers for Medicare and Medicaid Services (CMS) released a Survey and Certification (S&C) letter dated September 17, 2010 to state survey agencies (in our case, the Minnesota Department of Health) announcing significant changes to the Special Focus Facility (SFF) Nursing Home program.  We believe the changes are a result of previous congressional hearings and a recent Office of Inspector General (OIG) report critical of the current SFF program.

S&C-10-32-NH institutes the following important changes to the SFF program:

Number of SFF Slots – Previously the number of SFF facilities was based on the number of nursing facilities in each State.  Minnesota was supposed to have 3 SFF facilities because we dropped below 400 facilities, but CMS refused to decrease the number for MN below 4.  The new formula is based on the number of beds in each state, with a 10% increase in identified SFF’s nationally.  Despite these changes, this new formula will keep Minnesota with 4 identified SFF facilities.

Number of “Eligible” Facilities – Previously CMS identified 15 eligible facilities in each state.  The new formula is based on 5 “candidates” for each available SFF “slot”, plus additional candidates if currently selected SFF’s are on the eligible list.  This means instead of 15 candidates, Minnesota will now have between 20 and 23 candidates for MDH to select from when a new facility must be selected as an SFF.

Timeline to select new SFF – When an SFF “graduates” from the SFF program (2 consecutive 6-month surveys with no findings issued with a Scope/Severity above an “E” and no intervening complaint surveys with findings issued above an “E”), MDH has a maximum of 21 days to select a new SFF from the list of eligible facilities.

Selection of new SFF – CMS also clarified that when selecting a new SFF facility, the state agency may choose any from the eligible list; the selection does not need to be based on any rank order of the eligible candidates.

Progressive Enforcement Remedies – CMS has clarified that it expects enforcement remedies of increasing severity for SFFs.  Examples of remedies include:  civil money penalties, denial of payment for new admissions, directed plans of correction, and directed in-service training.  The S&C highlights the need for the state agencies to proceed to termination of the SFF’s participation in the Medicare and Medicaid programs if the facility cannot “graduate” from the SFF program within 4 surveys without significant triaging between the state agency and regional office.  This is a fundamental departure from previous practice.

SFF Formula – On a positive note, CMS has chosen to have the SFF formula used to rank facilities within each state to match the CMS 5-Star formula used to determine star rankings for survey outcomes.  This consistency will help providers better understand where they stand within the state and their risk of being selected as an SFF.  In CMS’ words, “The methodology for selecting replacement facilities for the SFF program has been harmonized with the methodology of the health inspection domain of the Five-Star Quality Rating System.”

What does this mean to nursing facility providers in Minnesota?

1. It means more facilities in Minnesota will be eligible to be selected as an SFF when an SFF graduates from the SFF program or is terminated from the Medicare and Medicaid programs.

2. It means that if your facility has one of the state’s 23 “worst” SFF scores, your facility could be selected to be an SFF, regardless of your ranking in the 23.

3. It means that if you are chosen as an SFF, it is imperative that you quickly graduate from the program.  Failing to quickly have surveys with no findings above a S/S of an E will result in significant and increasing enforcement, including termination of your provider agreement.  We do not expect to see facilities able to be on the SFF list for 24-60 months as a result of the S&C letter, which previously did occur . . . SFF’s will need to improve or they will be out!

4. It means that the monthly Five-Star and SFF data provided to member facilities by Care Providers of Minnesota is even more important to pay attention to!  These reports are an incredibly valuable member resource to help providers understand their rankings within these two programs, and hopefully develop strategies for survey compliance improvement.

The changes regarding the number of SFFs in each state and eligible slots are effective October 1, 2010.  All other changes issued in the S&C become effective “as soon as the State Agency is ready, but no later than 60 days from the date of this memo,” which would be November 16, 2010.

Given the significant changes issued in S&C-10-32-NH, Care Providers of Minnesota will be working with the American Health Care Association to determine if the directives in this S&C can be altered or modified in any way.  Care Providers of Minnesota will share any further updates regarding the SFF program as they are released.

Doug Beardsley
952.851.2489
dbeardsl@careproviders.org

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