Key Points

• Surveyors are no longer required to find actual psychosocial harm in order to issue a deficiency under the abuse/neglect tags, but instead use a “reasonable person” standard.
• CMS surveyors will now evaluate and consider whether residents leaving AMA were “pressured or intimidated” to leave.
• Binding arbitration agreements are prohibited as a condition of admission (or as a requirement for receiving care at that facility) and the Guidance imposes additional requirements on facilities in connection with arbitration agreements.

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On June 29, 2022, the Centers for Medicare and Medicaid Services (“CMS”) issued QSO-22-19-NH with updated Surveyor Guidance related to some Phase 2 and 3 requirements, including but not limited to abuse, transfer/discharge. PBJ, and binding arbitration In addition, some of these areas have been the subject of further updates since implementation. Now that we’re six months into surveys under the updated Guidance and facilities are receiving the results of surveys using the updated Guidance, it is a good time to revisit some of these key changes and look at options for compliance moving forward.

Abuse/Neglect

Although the abuse/neglect changes were not necessarily new to Phase 3, CMS substantially updated portions of its Guidance to Surveyors—essentially creating new requirements. These updates are likely to make it easier for surveyors to assess higher-level tags in abuse/neglect situations. Facilities faced with unusually high or unreasonable abuse tags can make the decision to submit an Informal Dispute Resolution. Although this decision is always fact-dependent, some communities have been successful in challenging these abuse tags under the new guidance.

Notably, surveyors are no longer required to find actual psychosocial harm in order to issue a deficiency under the abuse/neglect tags. Instead, CMS has created a “reasonable person” standard under which the surveyor’s only determination is whether a so-called “reasonable person” would have incurred psychosocial harm from the situation under investigation. CMS provides several examples where psychosocial harm would be imputed under this new scheme, in particular including the following: “Any resident to resident physical abuse that is likely to result in fear or anxiety.” In this situation, “if a reasonable person would likely suffer actual harm as a result of the incident, the incident should not be cited below Severity Level 3 (Actual Harm).” In short, CMS will be able to assess an Immediate Jeopardy or actual harm level deficiency even in cases where there is no actual evidence of psychosocial harm to the resident(s) in question. It is clear that facility response and interventions following up on resident-to-resident incidents will be increasingly crucial to avoiding an Immediate Jeopardy level related to abuse and neglect.

Despite the addition of this type of language, since implementation CMS has also further updated the Guidance under F600 to acknowledge that not “every resident to resident altercation results in abuse,” but cites as an example only resident arguments or disagreements in the course of normal social interactions. Appropriate and clear documentation regarding the incident may make the difference between a tag or clear survey.

CMS also proposed sample forms for abuse reporting and the five-day follow-up reporting. Although the forms are very detailed, it still remains to be seen whether these will become a requirement.

Transfer/Discharge

The updates to the transfer/discharge tags further emphasize the importance of clear documentation in the facility records. CMS added updated guidance for surveyors to focus on residents who leave against medical advice (“AMA”) to determine whether they were “pressured or intimidated” to leave by the facility. The Guidance further clarifies that even short-term residents who complete their rehabilitation may require a transfer/discharge notice. Although CMS acknowledges in its 2023 revisions, that the fact that a transfer/discharge is “facility initiated does not equate to noncompliance if the requirement in this regulatory section are met,” it remains likely that enhanced focus on discharges will remain.

Arbitration Agreements

New rules on binding arbitration agreements went into effect on September 16, 2019, with the roll-out of Phase 3, however, under the updated Guidance, F847 is the tag that prohibits SNFs from requiring residents to sign binding arbitration agreements as a condition of admission to the facility, or as a requirement for receiving care at that facility. F-tag 847 further requires facilities to explain the terms of an arbitration agreement to each resident or representative in an understandable manner, including that the resident has the right to rescind or terminate the agreement within 30 days. The arbitration guidance also requires that facilities (1) allow residents to choose a neutral arbitrator and (2) make the final arbitrator’s decision available for review by CMS or its designee.

If they haven’t already as a part of these updates, facilities should consider auditing their processes, including response to incidents of potential abuse and neglect and arbitration requirements or consult with counsel on the same.

For further information see the CMS guidance, located here: https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/revised-long-term-care-surveyor-guidance-revisions-surveyor-guidance-phases-2-3-arbitration.