CMS gives providers a mug with a gift card

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Elizabeth Newman
Elizabeth Newman

Never have Rolling Stones' lyrics come faster into my head than when I saw the Centers for Medicare & Medicaid Services would give an 18-month enforcement delay for certain Phase 2 regulations.

Specifically I thought, “Well, providers can't always get what they want, but if they try sometimes, they get what they need.”

What the industry had wanted was for CMS to rethink some of the Phase 2 requirements, which were finalized last year, and to give providers more time before they had to follow the rules. Efforts included a letter signed by more than 100 House of Representatives members. Unsaid was that, for some industry leaders, they'd like last year's entire final rule for nursing homes to go away. No one said long-term care is a change-happy industry.

Progress in achieving the goal of the delay moved at what seemed like a glacial pace for regular humans and at an accelerated rate for anyone dealing with a government agency. By the summer, CMS had said that while it wasn't pushing the Nov. 28 deadline Phase 2 deadline back, those hit with deficiencies would not face civil monetary penalties, payment denials or termination from the Medicare program for a year. By Friday, it had extended its goodwill to let certain F-tags extend to an 18-month enforcement delay. Additionally, CMS said it would freeze current health inspection star ratings for any surveys conducted over the past year.

The news is better than nothing.

That's because the F-tags under the moratorium are among the big kahunas administrators have been worried about. Some of them, such as F881 (Antibiotic Stewardship), F865 (QAPI Program and Plan), F758 (Psychotropic Medications) and F926 (Smoking policies) are all topics repeatedly brought up at conferences, with reporters and in work groups. They are all complicated and tricky issues that require thoughtful plans. None of them really caught providers off guard. Smoking, as I wrote in June, has been a struggle for providers for years; now CMS wants facilities to have smoking policies.

It's trickier than it sounds. Smoking policies need to be in accordance with federal, state and local laws on smoking, tobacco cessation, smoking areas and safety for non-smoking residents. Some parts of this are obvious: CMS obviously prohibits oxygen use from being in smoking areas because, as much as you may think the agency is out to get you, I promise Seema Verma does not want you, your residents, nor your building to explode or go up in flames.

But part of the challenge with smoking is that everybody lies about it. Residents may say they have quit smoking — yet haven't. They may want to quit — but won't. While many facilities let residents smoke outdoors in a designated area, that's dependent on weather conditions, which creates challenges for those in climates involving lots of snow. Even in the best of weather, there needs to be an employee supervising the smokers. That's a job assignment you ignore at your own risk. While it requires finding an employee OK with being around secondhand smoke (whom you can trust to send outdoors to supervise), there have been cases where residents left alone while smoking have caught their clothes on fire and died.

By giving providers another year and a half, there's hope that overwhelmed administrators will find solutions to these sticky problems. All in all, providers should think of the 18-month delay on some of the tags to be a holiday gift somewhere between a new X-box and a heavy fruit cake.

The news is the equivalent of a generic mug with a Starbucks gift card: Not the most personal or generous of gifts, but it's something. And if nothing else, the CMS memo caught me by surprise. The agency easily could have said that a delay for certain tags would cause confusion and that it would allow slacker facilities to continue to drag their feet.

In giving the delay, it shows CMS does, in fact, pay attention to the industry and its stakeholders.

Follow Senior Editor Elizabeth Newman @TigerELN.


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Daily Editors' Notes

McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Marty Stempniak.