Improvements to nursing facilities under the Medicare and Medicaid programs

(a)

Advisory Council on Skilled Nursing Facility Rankings

under

Medicare and Nursing Facility Rankings

under

Medicaid

(1)

Establishment

Not later than 1 year after the date of enactment of this Act, the Secretary of Health and Human Services shall establish the Advisory Council on Skilled Nursing Facility Rankings under Medicare and Nursing Facility Rankings under Medicaid (in this subsection referred to as the Advisory Council).(2)

Membership

The Secretary shall ensure that the membership of the Advisory Council includes equal representation from the following:(A)Consumers with nursing home experience, including adults age 65 and older, individuals with disabilities, family caregivers, and their advocates.(B)Skilled nursing facilities and nursing facilities, including non-profit facilities.(C)Academics with expertise in nursing home oversight.(D)Health professionals with nursing home experience, such as physicians, nurses, pharmacists, certified nursing assistants, and direct care professionals.(E)Professionals with expertise in quality measurement.(F)Professionals with expertise in emergency management.(G)State surveying agencies.(H)State long-term care ombudsman programs.(I)The Medicare Payment Advisory Commission.(J)The Medicaid and CHIP Payment and Access Commission.(K)The Centers for Medicare & Medicaid Services.(L)Other representatives as the Secretary determines appropriate.(3)

Duties

(A)

Study

The Advisory Council shall conduct a study of processes for ranking skilled nursing facilities and nursing facilities under paragraph (9) of section 1819(f) of the Social Security Act, as added by subsection (b)(1) and under paragraph (11) of section 1919(f) of such Act, as added by subsection (c)(1). Such study shall include an analysis of— (i)which available, verifiable data sources and measures are best for appropriately designating facilities in— (I)the high-rated facility program under paragraph (10) of such section 1819(f) and under paragraph (12) of such section 1919(f); and(II)the low-rated facility program under paragraph (8) of such section 1819(f) and under paragraph (10) of such section 1919(f); (ii)the appropriate frequency with which to update the rankings for the high-rated and low-rated facility programs described in clause (i);(iii)how best to ensure that skilled nursing facilities and nursing facilities appropriately report adverse events;(iv)how surveyors can clearly provide the rationale for giving deficiencies to such skilled nursing facilities and nursing facilities and how this can be done in a timely manner;(v)how to manage suspensions from the high-rated facility program described in clause (i)(I) and the need for additional consumer protections to administer such high-rated facility program;(vi)the availability or potential development of, or modifications to, measures or verifiable data sources on topics, including avoidable hospital readmissions, emergency room visits, risk-adjusted mortality, discharges to the community, involuntary discharges, situations involving the inappropriate administration of medications by a facility, and emergency management; and(vii)the development of, or modifications to, data collection, verifiable data sources, and potential measures to assess the financial stability of a facility. (B)

Findings and recommendations

(i)

In general

Not later than 2 years after the date of enactment of this Act, the Advisory Council shall submit to the Secretary the findings of the Advisory Council under the study conducted under subparagraph (A), together with recommendations for such legislation and administrative action as the Advisory Council determines appropriate. (ii)

Public availability

Upon receiving the findings and recommendations under clause (i), the Secretary shall make the findings and recommendations available to the public on the Internet website of the Centers for Medicare & Medicaid Services.(4)

Sunset

The Advisory Council shall terminate upon the submission of the report to the Secretary under paragraph (3)(B)(i). (b)

Medicare program revisions

(1)

Establishment of rankings and high-rated facility program

(A)

In general

Section 1819(f) of the Social Security Act (42 U.S.C. 1395i–3(f)) is amended by adding at the end the following new paragraphs:

(9)

Ranking process

(A)

Process

(i)

Establishment

The Secretary shall establish a process to rank skilled nursing facilities based on compliance with the applicable requirements of this Act.(ii)

Data

The process established under clause (i) shall include the use of at least the preceding 3 years of health inspection data, if appropriate, and other data as determined appropriate by the Secretary.(iii)

Findings and recommendations of the Advisory Council on Skilled Nursing Facility Rankings under Medicare and Nursing Facility Rankings under Medicaid

In establishing the process under clause (i), the Secretary shall take into account the findings and recommendations of the Advisory Council that are submitted to the Secretary under section 2(a)(3)(B)(i) of the Nursing Home Reform Modernization Act of 2021. (B)

Ranking

(i)

In general

Under the process established under subparagraph (A), the Secretary shall use the rankings of skilled nursing facilities to categorize facilities into highest and lowest groups for the purposes specified in clause (ii).(ii)

Timing and use of rankings

Not later than 2 years after the date the Secretary receives the findings and recommendations described in subparagraph (A)(iii), the Secretary shall use the rankings under clause (i) for purposes of carrying out—(I)the high-rated facility program under paragraph (10); and(II)the low-rated facility program under paragraph (8).(10)

High-rated facility program

(A)

Establishment

(i)

In general

Not later than 2 years after the date the Secretary receives the findings and recommendations described in paragraph (9)(A)(iii), the Secretary shall establish and implement a high-rated facility program to encourage and reward compliance with the requirements of this Act.(ii)

Report

In establishing the high-rated facility program, the Secretary shall take into account the findings and recommendations described in paragraph (9)(A)(iii).(iii)

Regulations

The Secretary shall establish the high-rated facility program under clause (i) through notice and comment rulemaking.(B)

Designation

Under the high-rated facility program, subject to subparagraph (D), the Secretary shall designate the highest rated skilled nursing facilities under the rankings under paragraph (9)(B) as high-rated skilled nursing facilities.(C)

Distinction on Nursing Home Compare website

A skilled nursing facility that is designated as a high-rated skilled nursing facility under subparagraph (B) shall receive a high-rated distinction on the official Internet website of the Federal Government for comparing nursing homes pursuant to subsection (i)(1)(C). (D)

Suspension of high-rated status

(i)

In general

The Secretary shall suspend a skilled nursing facility’s designation under subparagraph (B) if the Secretary determines that there are circumstances warranting such suspension. (ii)

Circumstances

In establishing the circumstances under clause (i), the Secretary shall take into account—(I)findings from Federal surveys and investigations;(II)findings from State surveys conducted under subsection (g)(2)(A);(III)findings from State investigations and surveys conducted under subsection (g)(4), including a high number of substantiated complaints, the frequency and severity of substantiated complaints, and how the complaints are handled by the facility;(IV)situations involving changes of ownership, administration, or management of a skilled nursing facility, or the director of nursing; (V)situations involving the inappropriate administration of medications by a facility;(VI)situations involving involuntary discharges of residents; and(VII)other factors determined appropriate by the Secretary.(iii)

No reinstatement prior to next standard survey

If a skilled nursing facility’s designation is suspended under clause (i), such designation shall not be reinstated prior to a subsequent survey as specified under subsection (g)(2)(A)(iii).

(B)

Assessment of high-rated designation in special surveys

Section 1819(g)(2)(A)(iii)(II) of the Social Security Act (42 U.S.C. 1395i–3(g)(2)(A)(iii)(II)) is amended—(i)by inserting (or, in the case of a facility that is designated as a high-rated skilled nursing facility under subsection (f)(10), shall be conducted) after may be conducted; and(ii)by adding at the end the following new sentence: On and after the date the Secretary implements the high-rated facility program under subsection (f)(10), any survey conducted, pursuant to the preceding sentence, of a facility that is designated as a high-rated skilled nursing facility under such subsection shall include an assessment of whether such designation should continue or be suspended under subparagraph (D) of such subsection.. (2)

Improvements to the special focus facility program

(A)

Appropriate participation

Section 1819(f)(8) of the Social Security Act (42 U.S.C. 1395i–3(f)(8)) is amended—(i)in subparagraph (A), by striking The Secretary and inserting Subject to the succeeding provisions of this subsection, the Secretary; and(ii)by adding at the end the following new subparagraph:

(C)

Appropriate participation

Not later than 1 year after the date of enactment of the Nursing Home Reform Modernization Act of 2021, the Secretary shall ensure that the number of facilities participating in the special focus facility program is not less than 3.5 percent of all skilled nursing facilities.

(B)

Conversion of the special focus facility program to the low-rated facility program and additional requirements

Section 1819(f)(8) of the Social Security Act (42 U.S.C. 1395i–3(f)(8)), as amended by subparagraph (A), is amended—(i)in subparagraph (B), by inserting the following before the period at the end: (or, on and after the date the Secretary makes the conversion described in subparagraph (D), at a frequency determined appropriate by the Secretary (but in no case less than once every 6 months)); and(ii)by adding at the end the following new subparagraphs:

(D)

Conversion to the low-rated facility program

(i)

In general

On the same date that the Secretary implements the high-rated facility program under paragraph (10), the Secretary shall convert the special focus facility program under this subsection to the low-rated facility program. (ii)

Regulations

The Secretary shall carry out the conversion under clause (i) through notice and comment rulemaking. (iii)

Additional requirements for the low-rated facility program

In addition to the provisions that apply to the low-rated facility program through the conversion from the special focus facility program, the succeeding provisions of this subsection shall also apply to the low-rated facility program.(E)

Participation

Subject to the minimum participation requirement under subparagraph (C), the Secretary shall designate the lowest rated skilled nursing facilities under the rankings under paragraph (9)(B) for participation in the low-rated facility program.(F)

Progressive enforcement actions

The Secretary, in consultation with States, shall utilize progressive enforcement actions, of increasing severity, to ensure facilities participating in the low-rated facility program meet the applicable requirements under this Act.(G)

Enforcement for patterns of deficiency

The Secretary may utilize enforcement actions specified in subsection (h)(2) to remedy patterns of deficiencies cited across multiple surveys. (H)

Compliance assistance programs

(i)

On-site consultation and educational programming

(I)

In general

The Secretary shall establish on-site consultation and educational programming for skilled nursing facilities participating in the low-rated facility program with respect to compliance with the applicable requirements under this Act.(II)

Entity

The on-site consultation and educational programming described in subclause (I) shall be carried out by quality improvement organizations under part B of title XI or other independent organizations of a similar type that do not have conflicts of interest and are deemed appropriate by the Secretary.(III)

Required participation

A skilled nursing facility participating in the low-rated facility program shall participate in any consultations and educational programming described in subclause (I) conducted at the facility.(ii)

Consultation independent of enforcement

(I)

In general

Subject to subclause (II), on-site consultations and educational programming described in clause (i) shall be conducted independently of any enforcement activity.(II)

Exception

Subclause (I) shall not apply in the case where a triggering event at the skilled nursing facility is observed in the course of providing on-site consultations and educational programming described in clause (i). In establishing such on-site consultations and educational programming, the Secretary shall determine the triggering events for which the use of necessary enforcement actions is permitted notwithstanding the limitation under subclause (I). Such triggering events shall include events that are required to be reported under State and Federal law and a pattern of deficiencies or problems that the quality improvement organization or other organization has identified for correction but which are consistently not corrected.(I)

Public availability

(i)

In general

The Secretary shall ensure that a skilled nursing facility’s participation in the low-rated facility program is publicly announced, including to—(I)resident family councils; (II)resident attending physicians; (III)the State board responsible for the licensing of the skilled nursing facility administrator at the facility;(IV)State Long-Term Care Ombudsman programs (as described in section 712(a)(1) of the Older Americans Act of 1965); and(V)the community at large. (ii)

Written notification

The Secretary shall ensure that, in the case of a skilled nursing facility that is participating in the low-rated facility program, residents of such facility and family or legal representatives are furnished with individualized written notice of such participation. Such notice shall be provided to current residents and to new residents prior to admission. (J)

Requirement for removal

The Secretary shall require that a skilled nursing facility show improvement prior to removal from the low-rated facility program.

(C)

Use of civil money penalties

Section 1819(h)(2)(B)(ii)(IV)(ff) of the Social Security Act (42 U.S.C. 1395i–3(h)(2)(B)(ii)(IV)(ff)) is amended—(i)by striking and facility improvement initiatives and inserting facility improvement initiatives; and(ii)by inserting the following before the period at the end: , and, on and after the date the Secretary makes the conversion described in subsection (f)(8)(D), consultation, education, and other activities to foster improvement and remedy root causes contributing to deficiencies cited across multiple surveys among facilities in the low-rated facility program under subsection (f)(8). (3)

Information on high-rated and low-rated facilities on Nursing Home Compare Medicare website

Section 1819(i)(1) of the Social Security Act (42 U.S.C. 1395i–3(i)(1)) is amended—(A)in subparagraph (A), by adding at the end the following new clause:

(vi)On and after the date the Secretary implements the high-rated facility program under subsection (f)(10) and makes the conversion under subsection (f)(8)(D), consistent with subparagraph (C)—(I)for each skilled nursing facility that is designated as a high-rated skilled nursing facility under subsection (f)(10), the date the facility was so designated; and(II)for each skilled nursing facility participating in the low-rated facility program under subsection (f)(8), the date the facility was identified for inclusion in such program.

; and

(B)by adding at the end the following new subparagraphs:

(C)

Distinctions for high-rated and low-rated facilities

On and after the date the Secretary implements the high-rated facility program under subsection (f)(10) and makes the conversion under subsection (f)(8)(D), the Secretary shall ensure that graphics, including an appropriate explanation of such graphics, are prominently displayed on the website described in subparagraph (A) in order to distinguish each of the following: (i)Skilled nursing facilities that are designated as high-rated skilled nursing facilities under subsection (f)(10).(ii)Skilled nursing facilities that are participating in the low-rated facility program under subsection (f)(8), with information on facilities that have been placed in such program more than one time over the course of the last 10 years (including the number of times such skilled nursing facilities have been placed in the program).(D)

Focus groups and consumer testing

In order to help limit confusion, particularly among older adults, individuals with disabilities, and family caregivers, the Secretary shall utilize focus groups and other consumer testing methods prior to including the additional information under subparagraph (A)(vi) and implementing the distinctions under subparagraph (C).

(c)

Medicaid program revisions

(1)

Establishment of rankings and high-rated facility program

(A)

In general

Section 1919(f) of the Social Security Act (42 U.S.C. 1396r(f)) is amended by adding at the end the following new paragraphs:

(11)

Ranking process

(A)

Process

(i)

Establishment

The Secretary shall establish a process to rank nursing facilities based on compliance with the applicable requirements of this Act.(ii)

Data

Findings and recommendations of the Advisory Council on Skilled Nursing Facility Rankings under Medicare and Nursing Facility Rankings under Medicaid

Ranking

(i)

In general

Under the process established under subparagraph (A), the Secretary shall use the rankings of nursing facilities to categorize facilities into highest and lowest groups for the purposes specified in clause (ii).(ii)

Timing and use of rankings

Not later than 2 years after the date the Secretary receives the findings and recommendations described in subparagraph (A)(iii), the Secretary shall use the rankings under clause (i) for purposes of carrying out—(I)the high-rated facility program under paragraph (12); and(II)the low-rated facility program under paragraph (10).(12)

High-rated facility program

(A)

Establishment

(i)

In general

Not later than 2 years after the date the Secretary receives the findings and recommendations described in paragraph (11)(A)(iii), the Secretary shall establish and implement a high-rated facility program to encourage and reward compliance with the requirements of this Act.(ii)

Report

In establishing the high-rated facility program, the Secretary shall take into account the findings and recommendations described in paragraph (11)(A)(iii).(iii)

Regulations

The Secretary shall establish the high-rated facility program under clause (i) through notice and comment rulemaking.(B)

Designation

Under the high-rated facility program, subject to subparagraph (D), the Secretary shall designate the highest rated nursing facilities under the rankings under paragraph (11)(B) as high-rated nursing facilities.(C)

Distinction on Nursing Home Compare website

A nursing facility that is designated as a high-rated nursing facility under subparagraph (B) shall receive a high-rated distinction on the official Internet website of the Federal Government for comparing nursing homes pursuant to subsection (i)(1)(C). (D)

Suspension of high-rated status

(i)

In general

The Secretary shall suspend a nursing facility’s designation under subparagraph (B) if the Secretary determines that there are circumstances warranting such suspension. (ii)

Circumstances

In establishing the circumstances under clause (i), the Secretary shall take into account—(I)findings from Federal surveys and investigations;(II)findings from State surveys conducted under subsection (g)(2)(A);(III)findings from State investigations and surveys conducted under subsection (g)(4), including a high number of substantiated complaints, the frequency and severity of substantiated complaints, and how the complaints are handled by the facility;(IV)situations involving changes of ownership, administration, or management of a nursing facility, or the director of nursing; (V)situations involving the inappropriate administration of medications by a facility;(VI)situations involving involuntary discharges of residents; and(VII)other factors determined appropriate by the Secretary.(iii)

No reinstatement prior to next standard survey

If a nursing facility’s designation is suspended under clause (i), such designation shall not be reinstated prior to a subsequent survey as specified under subsection (g)(2)(A)(iii).

(B)

Assessment of high-rated designation in special surveys

Section 1919(g)(2)(A)(iii)(II) of the Social Security Act (42 U.S.C. 1396r(g)(2)(A)(iii)(II)) is amended—(i)by inserting (or, in the case of a facility that is designated as a high-rated nursing facility under subsection (f)(12), shall be conducted) after may be conducted; and(ii)by adding at the end the following new sentence: On and after the date the Secretary implements the high-rated facility program under subsection (f)(12), any survey conducted, pursuant to the preceding sentence, of a facility that is designated as a high-rated nursing facility under such subsection shall include an assessment of whether such designation should continue or be suspended under subparagraph (D) of such subsection.. (2)

Improvements to the special focus facility program

(A)

Appropriate participation

Section 1919(f)(10) of the Social Security Act (42 U.S.C. 1395r(f)(10)) is amended—(i)in subparagraph (A), by striking The Secretary and inserting Subject to the succeeding provisions of this subsection, the Secretary; and(ii)by adding at the end the following new subparagraph:

(C)

Appropriate participation

(B)

Conversion of the special focus facility program to the low-rated facility program and additional requirements

Section 1919(f)(10) of the Social Security Act (42 U.S.C. 1395i–3(f)(10)), as amended by subparagraph (A), is amended—(i)in subparagraph (B), by inserting the following before the period at the end: (or, on and after the date the Secretary makes the conversion described in subparagraph (D), at a frequency determined appropriate by the Secretary (but in no case less than once every 6 months)); and(ii)by adding at the end the following new subparagraphs:

(D)

Conversion to the low-rated facility program

(i)

In general

On the same date that the Secretary implements the high-rated facility program under paragraph (12), the Secretary shall convert the special focus facility program under this subsection to the low-rated facility program. (ii)

Regulations

The Secretary shall carry out the conversion under clause (i) through notice and comment rulemaking. (iii)

Additional requirements for the low-rated facility program

Participation

Subject to the minimum participation requirement under subparagraph (C), the Secretary shall designate the lowest rated nursing facilities under the rankings under paragraph (11)(B) for participation in the low-rated facility program.(F)

Progressive enforcement actions

Enforcement for patterns of deficiency

The Secretary may utilize enforcement actions specified in subsection (h)(2) to remedy patterns of deficiencies cited across multiple surveys. (H)

Compliance assistance programs

(i)

On-site consultation and educational programming

(I)

In general

The Secretary shall establish on-site consultation and educational programming for nursing facilities participating in the low-rated facility program with respect to compliance with the applicable requirements under this Act.(II)

Entity

Required participation

A nursing facility participating in the low-rated facility program shall participate in any consultations and educational programming described in subclause (I) conducted at the facility.(ii)

Consultation independent of enforcement

(I)

In general

Subject to subclause (II), on-site consultations and educational programming described in clause (i) shall be conducted independently of any enforcement activity.(II)

Exception

Subclause (I) shall not apply in the case where a triggering event at the nursing facility is observed in the course of providing on-site consultations and educational programming described in clause (i). In establishing such on-site consultations and educational programming, the Secretary shall determine the triggering events for which the use of necessary enforcement actions is permitted notwithstanding the limitation under subclause (I). Such triggering events shall include events that are required to be reported under State and Federal law and a pattern of deficiencies or problems that the quality improvement organization or other organization has identified for correction but which are consistently not corrected.(I)

Public availability

(i)

In general

The Secretary shall ensure that a nursing facility’s participation in the low-rated facility program is publicly announced, including to—(I)resident family councils; (II)resident attending physicians; (III)the State board responsible for the licensing of the nursing facility administrator at the facility;(IV)State Long-Term Care Ombudsman programs (as described in section 712(a)(1) of the Older Americans Act of 1965); and(V)the community at large. (ii)

Written notification

The Secretary shall ensure that, in the case of a nursing facility that is participating in the low-rated facility program, residents of such facility and family or legal representatives are furnished with individualized written notice of such participation. Such notice shall be provided to current residents and to new residents prior to admission. (J)

Requirement for removal

The Secretary shall require that a nursing facility show improvement prior to removal from the low-rated facility program.

(C)

Use of civil money penalties

Section 1919(h)(3)(C)(ii)(IV)(ff) of the Social Security Act (42 U.S.C. 1396r(h)(3)(C)(ii)(IV)(ff)) is amended—(i)by striking and facility improvement initiatives and inserting facility improvement initiatives; and(ii)by inserting the following before the period at the end: , and, on and after the date the Secretary makes the conversion described in subsection (f)(10)(D), consultation, education, and other activities to foster improvement and remedy root causes contributing to deficiencies cited across multiple surveys among facilities in the low-rated facility program under subsection (f)(10). (3)

Information on high-rated and low-rated facilities on Nursing Home Compare Medicare website

Section 1919(i)(1) of the Social Security Act (42 U.S.C. 1396r(i)(1)) is amended—(A)in subparagraph (A), by adding at the end the following new clause:

(vi)On and after the date the Secretary implements the high-rated facility program under subsection (f)(12) and makes the conversion under subsection (f)(10)(D), consistent with subparagraph (C)—(I)for each nursing facility that is designated as a high-rated nursing facility under subsection (f)(12), the date the facility was so designated; and(II)for each nursing facility participating in the low-rated facility program under subsection (f)(10), the date the facility was identified for inclusion in such program.

; and

(B)by adding at the end the following new subparagraphs:

(C)

Distinctions for high-rated and low-rated facilities

On and after the date the Secretary implements the high-rated facility program under subsection (f)(12) and makes the conversion under subsection (f)(10)(D), the Secretary shall ensure that graphics, including an appropriate explanation of such graphics, are prominently displayed on the website described in subparagraph (A) in order to distinguish each of the following: (i)Nursing facilities that are designated as high-rated nursing facilities under subsection (f)(12).(ii)Nursing facilities that are participating in the low-rated facility program under subsection (f)(10), with information on facilities that have been placed in such program more than one time over the course of the last 10 years (including the number of times such nursing facilities have been placed in the program).(D)

Focus groups and consumer testing

(d)

GAO study and report

(1)

Study

The Comptroller General of the United States (in this section referred to as the Comptroller General) shall conduct a study on the quality of items and services furnished by skilled nursing facilities under title XVIII of the Social Security Act and nursing facilities under title XIX of such Act, and such facilities' compliance with the applicable requirements under such titles. Such study shall include analysis of the following:(A)The effectiveness of the low-rated facility program established under paragraph (8) of section 1819(f) of the Social Security Act (42 U.S.C. 1395i–3(f)), as amended by subsection (b)(2), and under paragraph (10) of section 1919(f) of such Act (42 U.S.C. 1396r(f)), as amended by subsection (c)(2).(B)Other areas determined appropriate by the Comptroller General.(2)

Report

Not later than 6 years after the date of enactment of this Act, the Comptroller General shall submit to the appropriate Committees of Congress a report containing the results of the study conducted under paragraph (1), together with recommendations for such legislation and administrative action as the Comptroller General determines appropriate.(e)

Rules of construction

(1)

Surveys

Nothing in the provisions of, or the amendments made by, this section shall be construed to allow the Secretary to modify or deviate from—(A)a survey schedule that requires unannounced and unanticipated surveying of skilled nursing facilities under subsection (g)(2)(A)(i) of section 1819 of the Social Security Act (42 U.S.C. 1395i–3(g)) or under subsection (g)(2)(A)(i) of section 1919 of the Social Security Act (42 U.S.C. 1396r(g)); (B)the surveying frequency specified under subsection (g)(2)(A)(iii) of such section 1819 or under subsection (g)(2)(A)(iii) of such section 1919; or(C)surveys and investigations as required under subsection (g)(4) of such section 1819 or under subsection (g)(4) of such section 1919.(2)

Accountability and State law

Nothing in the provisions of, or the amendments made by, this section shall be construed to impact the ability of a resident, the family of a resident, or a successor in interest to hold a skilled nursing facility or nursing facility accountable or change protections granted under State law.