This week’s “Ftag of the Week” on the CMSCG Blog is part of the Administration regulatory group, F836 License/Comply with Fed/State/Local Law/Prof Std. Per Appendix PP of the State Operations Manual (SOM), there are three regulatory requirements under the rule, one of which is typically used as the basis for citations more than others.
State and Local Licensure
The first requirement under F836 is that a facility is required to be licensed under applicable State and local law. If requested by a surveyor, a facility is required to provide licenses, permits and/or approvals to determine compliance with this requirement. Surveyors are looking to ensure that a provider holds a current license from the State it operates in to operate as nursing home and that this has been verified with the appropriate entity/applicable authority.
Compliance with Laws, Regulations, Codes and Professional Standards of Practice
The second requirement is the one where more deficient practices are identified during a survey. Under this part of the regulation, facilities are required to operate and provide services in compliance with all applicable:
- Federal laws
- State laws
- Local laws, regulations and codes
- Within accepted professional standards and principles related to services provided in a nursing home
Given the breadth of the above areas that could potentially be included in a review there is an opportunity for a deficient practice to be cited by a surveyor. What is commonly cited depends on the state itself, as a review of current survey citations identified patterns that are unique to different states. Commonly cited issues include:
- Noncompliance with state staffing levels (Connecticut, New Jersey)
- Failure to ensure carbon monoxide detectors were in place as required (New York)
- HIPPA violations due to failure to protect PHI by leaving med carts unlocked (Maryland)
- Failure by the owner to pay all bills related to operation of the facility in a timely manner (Pennsylvania)
- Failure to ensure the Administrator had an active license (multiple states)
Compliance with HHS regulatory provisions
The final part of this regulation states that providers must also meet applicable provisions of other HHS regulations, including:
- Nondiscrimination on the basis of race, color, or national origin
- Nondiscrimination on the basis of disability
- Nondiscrimination of the basis of age
- Nondiscrimination on the basis of color, national origin, sex, age or disability
- Protection of human research subjects
- Fraud and abuse
- Protection of individually identifiable health information
On Survey
Surveyors are not allowed to interpret or enforce any requirements from another agency and are expected to refer the potential issue to the appropriate agency. If the agency confirms that there is some type of situation or concern related to any specific professional providing services to the facility, a referral is made to the appropriate authority for final action. If an action has been confirmed, then the surveyor could issue a deficiency under F836. Understandably, this could take time to ensure the agency has received the referral, so surveyors are not expected to delay the survey while waiting for confirmation. However, as you can see from the citations above, surveyors were able to confirm a variety of issues during survey without any delays from other authorities based on the regulation itself.
