I heard there was communication to surveyors on being required to cite the regulation and not the interpretive guidance. Where can I find this?
You heard correctly. The memo was from CMS on January 18, 2008, reference number S&C-08-10. The title is “Use of Interpretive Guidance by Surveyors for Long Term Care Facilities.”
The summary says the Centers for Medicare & Medicaid Services was asked to clarify the use of the Interpretive Guidance to Surveyors for Long Term Care Facilities documents in reviewing for compliance with the regulatory requirements for nursing homes. Surveyors must cite all deficiencies based on a violation of statutory and/or regulatory requirements.
The State Operations Manual contains CMS’ authoritative interpretation of the regulatory language that set minimum health and safety standards for Medicare and Medicaid certification. The SOM specifies that the interpretive guidance provides surveyors with information on investigative protocols, definitions of regulatory terms, and interview probes that they can use during surveys to evaluate compliance with the regulations.
Interpretative guidance documents are meant to help surveyors determine whether specific care practices are consistent with regulations, not to set new requirements, according to the January 2008 memo. For example, a guidance might define a “permissive duty.” One guidance says, “the care plan for a resident at risk of friction or shearing during repositioning may require the use of lifting devices for repositioning.” This sentence does not create a requirement that facilities use lift devices in order to prevent pressure sores, as the facility may have other interventions in place to avoid shearing and friction. The lack of use by itself does not create a deficient practice.