The Social Security Act specifies the federal requirements for monitoring compliance of Medicare and Medicaid nursing home providers under Sections 1819 and 1919(g). Compliance with these statutory requirements and implementing regulations is assessed using a survey, certification and enforcement process defined in statute and regulation. Medicare and/or Medicaid certified nursing homes are surveyed at least once every 15 months.
The Federal Government is required to conduct surveys of Medicare SNFs. The Federal Government contracts with state survey agencies to perform this activity and pays 100 percent of the allowable state survey costs for Medicare SNFs (Section 1864(b)). In addition, as permitted by statute, the Federal Government contracts with states to conduct Medicaid surveys. The federal law requires that the Federal Government pay states 75 percent of survey, certification, and enforcement costs for Medicaid facilities (Section 1903(a)(2)(D)).
CMS restricts the amount of technical assistance that surveyors can provide. According to a December 2002 program memorandum (see Appendix G), surveyors "should not act as consultants to nursing homes…" but should "provide information to the facility about care and regulatory topics that would be useful to the facility for understanding and applying best practices in the care and treatment of the long-term care residents." This information exchange is not considered by CMS to be consultation with the facility, but rather "a means of disseminating information that may be of assistance to the facility in meeting long-term care requirements."
In addition, the memorandum refers to Section 2727 of the CMS State Operations Manual (see Appendix G), which states: "It is not the surveyor's responsibility to delve into the facility's policies and procedures to determine the root cause of the deficiency or to sift through various alternatives to suggest an acceptable remedy. When the State Agency conducts a revisit, it is to confirm that the facility is in compliance with the cited deficiencies, not whether it implemented the suggested best practices, and has the ability to remain in compliance." Reference information regarding best practices may be provided to "assist facilities in developing additional sources and networking tools for program enhancement," but surveyors are instructed not to "act as consultants to nursing homes."
Guidance on the types of allowable survey and certification activities that may be eligible for a federal matching payment is found in the State Operations Manual (Section 4100-4109). There is no provision that explicitly permits use of federal survey and certification funds for any technical assistance or quality improvement programs like the programs in the states that we visited.