Bloomberg Law
Oct. 21, 2022, 6:29 PMUpdated: Oct. 21, 2022, 8:59 PM

Poor Quality Nursing Homes Face Tougher Scrutiny, Penalties (1)

Tony Pugh
Tony Pugh

Low-performing nursing homes that don’t show improvement in their quality of care will face tougher penalties, including the possible loss of federal funding, under guidelines announced Friday by the Biden administration.

The changes announced by the Centers for Medicare & Medicaid Services are part of the Biden administration’s continuing effort to improve the quality of care in US nursing homes. The new regulations are designed to make it tougher on nursing homes that enter the agency’s Special Focus Facility program, which targets the worst operators in each state.

Nursing homes certified by Medicare and Medicaid are selected for the program using a point system based on the number and severity of deficiencies they’ve been cited for in the last three inspections. Nursing homes with the most points in a state either become candidates for the program or enter the program.

Once in the program, nursing homes are inspected at least every six months rather than annually. And state inspectors apply progressive enforcement—penalties, fines, withholding of payments—until the facilities significantly improve or are terminated from Medicaid and/or Medicare.

Nationally, 88 nursing homes participate in the SFF program, about 0.5% of all nursing homes.

“While the SFF program has helped facilities improve their compliance and quality, there are some facilities that have not seen the same results,” the new program revisions said.

“Some facilities fail to demonstrate the improvements needed to graduate from the program and can therefore remain in the program for a prolonged period of time,” the revisions said. “Additionally, there are some that graduate from the program only to see their compliance and quality regress later.”

Making It Tougher to ‘Graduate’

Under the program revisions, the CMS is making it harder to successfully complete the SFF program by “adding a threshold that prevents a facility from exiting based on the total number of deficiencies cited—no more ‘graduating’ from the program’s enhanced scrutiny without demonstrating systemic improvements in quality,” a CMS press release said.

The agency is also imposing more “severe, escalating enforcement remedies for SFF Program facilities that have continued noncompliance and little or no demonstrated effort to improve performance,” the statement said.

The CMS will also extend the monitoring period for nursing homes that exit the program in order to maintain “readiness to impose progressively severe enforcement actions against nursing homes whose performance declines after graduation.”

And facilities cited with the most serious “immediate jeopardy” deficiencies on any two inspections while in the program will now be considered for “discretionary termination from the Medicare and/or Medicaid programs,” according to the press release.

Improve or ‘Face the Consequences’

“Let us be clear: we are cracking down on enforcement of our nation’s poorest-performing nursing homes,” Health and Human Services Secretary Xavier Becerra said in the statement. “As President Biden directed, we are increasing scrutiny and taking aggressive action to ensure everyone living in nursing homes gets the high-quality care they deserve. We are demanding better, because our seniors deserve better.”

The CMS is also advising state nursing inspection agencies to consider a facility’s staffing level, along with its compliance history, when selecting candidates for the SFF program. The CMS plans to issue mandatory minimum staffing levels for all Medicare- and Medicaid-certified nursing homes in 2023.

“People in this country’s nursing homes deserve access to safe and high-quality care, and facilities that aren’t providing that level of service need to improve their performance or face the consequences,” CMS Administrator Chiquita Brooks-LaSure said in a statement.

“We agree that those who do not demonstrate progress should close,” Katie Smith Sloan, president and CEO of LeadingAge, said in a statement. LeadingAge represents nonprofit, aging services providers.

But the CMS should also prioritize issues that perpetuate a shortage of staff at nursing homes, Sloan added.

“Identifying, funding and implementing programs that bring more qualified staff to nursing homes,” and providing training and career ladders for staff are ‘‘critical to ensuring that older adults and their families can access quality care,” Sloan said.

‘Degrading’ Rhetoric

Mark Parkinson, president and CEO at American Health Care Association and National Center for Assisted Living, said in a statement that the administration’s rhetoric was “degrading” to nursing home staff.

“Residents are not victims of the nursing home industry,” Parkinson said. “Too many were victims of a vicious virus that targets the elderly as well as terrible public policy decisions—made by both parties—that failed to support and prioritize our most vulnerable.”

He added that “escalating citations and penalties” haven’t helped problem facilities correct deficiencies “nor prevented other facilities from becoming chronic poor performers.”

The AHCA/NCAL has proposed a five-step-process to correct chronic, poor performing nursing homes. “The survey system needs to adopt this process to make meaningful changes for the residents in these facilities,” Parkinson said.

(Updates with reaction in last seven paragraphs. )

To contact the reporter on this story: Tony Pugh in Washington at

To contact the editors responsible for this story: Brent Bierman at; Karl Hardy at

Learn more about Bloomberg Law or Log In to keep reading:

Learn About Bloomberg Law

AI-powered legal analytics, workflow tools and premium legal & business news.

Already a subscriber?

Log in to keep reading or access research tools.