On November 22, 2019, CMS issued a memorandum with an update on the Phase 3 Requirements of Participation. In this memo, CMS advised:
- CMS will not release updated Interpretive Guidance and training addressing Phase 3 until the second quarter of 2020.
- But... nursing homes are still expected to require with Phase 3 by November 28, 2019.
Here is what CMS said:
"While the Phase 3 requirements will be effective November 28, 2019 and facilities are required to comply with these and all requirements, our ability to survey for compliance with these requirements will be limited until the Interpretive Guidance is released."
What does this mean??
It means that, right now, nursing homes are required by law to comply with the Phase 3, including the Compliance and Ethics Program requirements - and CMS expects nursing homes to be in compliance.
Time will tell if or to what degree state surveyors evaluate nursing home compliance programs - but this CMS memo makes clear that survey review is fair game.
MPA recommends that nursing homes implement Phase 3 compliance relying on available guidance (the regulation, 42 CFR 483.85), and keep an eye out for forthcoming updates and guidance. CMS will have guidance in second quarter 2020. In addition, in July 2019, CMS issued a Proposed Rule that would, if made final, modify 42 CFR 483.85, and potentially postpone enforcement. The Proposed Rule has not progressed to a Final Rule yet, which means the proposed changes to Phase 3 Compliance, and the proposed enforcement delay, are not effective at this time. Until that rule is made final, MPA suggests relying on the CMS memo issued last week and complying with Phase 3. If and when the CMS Proposed Rule becomes final and an enforcement delay goes into effect, MPA will post an update to the blog.
Finally, remember: regardless of what Phase 3 requires, the OIG is still the gold standard for compliance programs - and OIG expectations should be followed as well.
Please let MPA know if you have any questions.