The Centers for Medicare & Medicaid Services (CMS) issued a new S&C memo for all providers, “Reasonable Assurance Will Apply to Providers and Suppliers Who Voluntarily Terminate and Seek New Certification If a Termination Action by the State Agency Had Been Initiated.” The letter defines “reasonable assurance” as it applies to certification of terminated providers (including Medicare providers, including dually-participating skilled nursing facilities). There is no statutory or regulatory requirement requiring States to establish this standard for Medicaid-only facilities or nursing facilities in a dually-participating facility that has been terminated. The RO may consider using the initial nursing facility compliance survey as an initial step in the reasonable assurance process for a facility that was dually-participating and seeking restoration of SNF/NF participation.
Section 2016 of the State Operations Manual (SOM) states that providers who have been terminated by CMS may reapply for certification, including via deemed accreditation, but these providers must meet certain conditions. Specifically, the provider must operate for a certain time period without the reoccurrence of the deficiencies that were the basis for definition – aka “reasonable assurance.” The length of the reasonable assurance time period, which usually ranges from 30-120 days, depends on an evaluation made by the RO of the provider’s previous history of compliance. If the provider maintains compliance with program requirements during that time frame, the participation may resume.
CMS will accept a new agreement with a provider so long as:
- The reason for termination of the previous agreement has been removed and there is reasonable assurance that it will not recur
- The provider has fulfilled (or made satisfactory agreements to fulfill) all of the responsibilities of the previous agreement
Reasonable assurance decisions may not be appealed, as they are considered administrative actions, not initial determinations.
Voluntary Termination
- For providers that have voluntarily terminated, reasonable assurance may also be required when the provider reapplies.
- Section 2017 of the SOM refers to the application of this standard. If there is no SA certification of non-compliance when the provider notifies the RO of voluntary termination, the reasonable assurance provision does not apply.
- Section 2734 of the SOM addresses SA certification of noncompliance, which is based on either the provider’s failure to substantially meet the requirements for skilled nursing/nursing facilities, or the provider’s inability or refusal to submit an acceptable PoC for unmet requirements.
- Once the SA has certified noncompliance of a provider, it would begin termination procedures as per Section 2734B of the SOM. Since the provider has been certified as non-compliant, at this point, the reasonable assurance provision would apply if the provider decided to reapply for certification and a new Medicare agreement.
Read June 16, 2017 CMS S&C “Reasonable Assurance Will Apply to Providers and Suppliers Who Voluntarily Terminate and Seek New Certification If a Termination Action by the State Agency Had Been Initiated” (Ref: S&C: 17-35-ALL).
