Current
guidance in Appendix PP of the SOM for Tag F 492, 42 CFR §483.75(b) and (c)
instructs that this tag be cited “…only when the authority having jurisdiction
has both made a determination of noncompliance and has taken a final adverse
action as a result.” In response to confusion regarding citation
when a facility “…simply does not meet a State regulation…”, CMS is
clarifying and revising guidance to Surveyors.
· The
requirements at 42 CFR §483.75(b)-Compliance With Federal, State, and Local
Laws and Professional Standards require: “The facility must operate and provide
services in compliance with all applicable Federal, State, and local laws,
regulations, codes, and with accepted professional standards and principles
that apply to professionals providing services in such a facility.”
· 42
CFR §483.75(c)-Relationship to Other Health & Human Services (HHS)
Regulations requires: “In addition to compliance with the regulations set forth
in this subpart, facilities are obliged to meet the applicable provisions of
other HHS regulations, including but not limited to those pertaining to
nondiscrimination on the basis of race, color, or national origin (45 CFR part
80); nondiscrimination on the basis of handicap (45 CFR part 84);
nondiscrimination on the basis of age (45 CFR part 91); protection of human subjects
of research (45 CFR part 46); and fraud and abuse (42 CFR part 455).”
· CMS
advises: “Although these regulations are not in themselves considered
requirements under this part, their violation may result in the termination or
suspension of, or the refusal to grant or continue payment with Federal funds.”
· CMS’
stated intent for these requirements is “…to ensure that a facility is in
compliance with Federal, State, and local laws, regulations, codes, and with
accepted professional standards and principles that apply to professionals
providing services in LTC facilities.”
· CMS’
defines noncompliance as “…only when a final adverse action has been taken by
the authority having jurisdiction regarding noncompliance with its
applicable laws, regulations, codes and/or standards.”
o “Accepted
professional standards and principles means the individual State professional
licensure practice acts and scope of practice regulations and/or
standards….”
o “An authority having
jurisdiction is a Federal, State, local, or other regional department or
individual, e.g., fire chief or marshal; labor or health department or building
official; electrical inspector; or others having statutory authority...”
o “Final adverse
action” is an adverse action imposed by the authority having jurisdiction that
is more than a corrective action plan or the imposition of a civil money
penalty, such as a ban on admissions, suspension or loss of a facility or
professional license, etc., and is NOT under appeal or litigation by the
facility or the professional providing services in the facility.
·
Failure
of the facility to meet a Federal, State or local law, regulation, code, or
accepted professional standards that apply to professionals providing services
may only be cited at F492, “…when the Federal, State or local authority having
jurisdiction has both made a determination of non-compliance AND has taken a
final adverse action.”
·
State
Survey Agencies (SAs) are instructed not to use F492 “…to simply cite
non-compliance with State or local licensure requirements…”; and to refer to
Tag F281, §483.20(k)(3)-The services provided or arranged by the facility
must-- (i) Meet professional standards of quality-- for possible deficiencies
related to professional standards of quality.
· SAs
are instructed not to cite F492 as past non-compliance “…if at the time of the
standard, complaint or follow-up survey, the facility or professional within
the facility is in compliance with the Federal, State or local law, regulation,
code and/or standard but was found not to be in compliance with those
requirements during a time before the on-site survey.”
·
Surveyors
are to refer situations indicating possible non-compliance with a State or
local law, regulation, code or standard to the authority having jurisdiction.
If written confirmation is received that a final adverse action has been taken,
the facility may be found out of compliance and cited at F492.
·
If
noncompliance is observed with a law, regulation, code or standard under the
purview of a Federal agency other than CMS, the RO is to assist with contact
and/or referral to the appropriate agency.
·
Surveys
are not to be delayed or prolonged pending confirmation from an authority.
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