LeadingAge Releases a Summary of New CMS Heightened Scrutiny Guidance

LeadingAge Releases a Summary of New CMS Heightened Scrutiny Guidance

New Heightened Scrutiny Guidance Answers Some Questions, Raises New Ones

The new guidance answers a number of questions for both states implementing the rule and settings subject to it. For one, it provides new information about what information states can and should share with CMS with respect to settings subject to heightened scrutiny, and how CMS will conduct heightened scrutiny reviews. It also describes how states can work with providers to come into compliance with the rule without needing heightened scrutiny from CMS. Further, it clarifies that rural providers are not automatically isolating to those they serve. These are each discussed in further depth below. 

At the same time, new questions emerge from the guidance. For one, CMS explains a process of reviewing a sample of settings a state submits for heightened scrutiny (e.g., identified settings may not all be reviewed), however does not explain how the sample will be drawn, the size of the sample or what specifically will happen with providers that are not part of the sample. In addition, the guidance replaces previous guidance that said life plan communities are not considered to be isolating. The new guidance has no such provision, raising questions as to what level of scrutiny these providers may face.

At a high level, the guidance devolves significant discretion on the Settings Rule to states. Beyond helping settings comply without heightened scrutiny review from CMS, states are also seemingly given broad latitude with respect to what information to share about settings they select for heightened scrutiny. Further, states are tasked with applying feedback they get from CMS from the sampled settings it reviews to non-sampled settings. What that application will look like, however, is unclear.

The following provides a summary of the new guidance as well as analysis of certain sections of import to LeadingAge members. In the below, we generally refer to settings rather than providers. Some providers may have a single setting, or site, while others may have multiple settings in operation, each of which would be separately assessed for compliance with Settings Rule. We encourage all LeadingAge HCBS members to review the new guidance and work with their states on next steps. For those that may have compliance issues related to the effect of isolating individuals, we encourage members to work quickly with their respective state to address those and minimize the need for heightened scrutiny from CMS. 

Members may contact Brendan Flinn of the LeadingAge staff with questions or concerns about the new guidance or the Settings Rule more broadly.