CMS New Reporting Requirements for Nursing Homes 2023

The Centers for Medicare & Medicaid Services (CMS) proposed implementing reporting requirements originally enacted under the Affordable Care Act (ACA) about the owners and operators of Medicare skilled nursing facilities (SNFs) and Medicaid nursing facilities. The ACA was enacted in 2010. Although CMS originally proposed an implementation rule in 2011, it has yet to finalize these ACA requirements. The requirements are found under Section 6101(a) of the ACA.

In general, as part of a Form CMS-855A initial enrollment or revalidation application, a Medicare SNF would have to disclose to CMS — or for Medicaid nursing facilities, the applicable state Medicaid agency — the following information:

• Each member of the governing body of the facility, including the name, title, and period of service of each member.
• Each person or entity who is an officer, director, member, partner, trustee, or managing employee of the facility, including the name, title, and period of service of each such person or entity.
• Each person or entity who is an additional disclosable party of the facility.
• The organizational structure of each additional disclosable party of the facility and a description of the relationship of each such additional disclosable party to the facility and to one another.

These four items are pulled verbatim from the ACA statute. To help clarify what it wants to see reported, CMS proposes to add certain definitions and clarify key terms. There are slight variations between Medicare and Medicaid requirements, but the largest difference is that SNFs must report private equity (PE) or real estate investment trust (REIT) information while state Medicaid programs are not required to collect that from nursing homes.

Here is a side-by-side overview of the proposed definitions and requirements:

TERMS/DEFINITIONS	MEDICARE SNF	MEDICAID NURSING FACILITY
Additional disclosable party	Any person or entity who:   (1) exercises operational, financial, or managerial control over the facility or a part thereof, or provides policies or procedures for any of the operations of the facility, or provides financial or cash management services to the facility;   (2) leases or subleases real property to the facility, or owns a whole or part interest equal to or exceeding 5% of the total value of such real property; or  (3) provides management or administrative services, management or clinical consulting services, or accounting or financial services to the facility.	Same
Managing employee	Specific to this requirement, managing employee means: An individual (including a general manager, business manager, administrator, director, or consultant) who directly or indirectly manages, advises, or supervises any element of the practices, finances, or operations of the facility.	Clarify that an individual can qualify as a managing employee:   (1) even if he or she is acting under contract or through some other arrangement; and   (2) whether or not the individual is a W–2 employee of the institution, organization, or agency.  Specific to this reporting requirement, an individual means: an individual (including a general manager, business manager, administrator, director, or consultant) who directly or indirectly manages, advises, or supervises any element of the practices, finances, or operations of the facility.
Organizational structure	For a corporation — The officers, directors, and shareholders of the corporation who have an ownership interest in the corporation which is equal to or exceeds 5%. For a limited liability company — The members and managers of the limited liability company including, as applicable, what percentage each member and manager has of the ownership interest in the limited liability company. For a general partnership — The partners of the general partnership. For a limited partnership — The general partners and any limited partners of the limited partnership who have an ownership interest in the limited partnership which is equal to or exceeds 10%. For a trust — The trustees of the trust. For an individual — Contact information for the individual.	Same

ADDITIONAL REPORTING CHANGES	MEDICARE SNF	MEDICAID NURSING FACILITY
New data elements	New data elements added to the Form CMS-855A through which owning and managing entities of SNFs would have to disclose whether they are either a private equity company or a REIT.   CMS proposes definitions on this data element.   A private equity company would be defined as a publicly traded or non-publicly traded company that collects capital investments from individuals or entities (that is, investors) and purchases an ownership share of a provider (for example, SNF, home health agency, etc.).   A REIT would be defined as a publicly traded or non-publicly traded company that owns part or all of the buildings or real estate in or on which the provider operates.	CMS does not require in this proposed regulation that states collect data signifying whether a particular organization reported is a private equity company or REIT, though the CMS would support this.
Frequency of reporting	Medicare SNF must report any change within the current timeframes for reporting changes in enrollment data — specifically, 30 days for changes in ownership or control and 90 days for all other changes.   CMS would be able to collect this information as warranted and would not need to wait for SNF revalidation cycle.	CMS gives states deference in deciding whether to require this information be submitted more frequently than enrollment or revalidation.  In addition, states would only have to require reporting of this information once in the same application submission, but the proposed rule gives deference to states should they want to require it in another area of the submission.

CMS intends to make this information public within one year of finalizing the regulation.

CMS is currently accepting public comments on its proposed rule, specifically:

• Proposed definitions
• Whether the proposed definition of private equity company should include publicly traded private equity companies
• Whether there are any other types of private ownership besides private equity companies and REITs about which CMS should consider collecting information from SNFs as part of the enrollment process.

Public comments must be submitted by end of day April 14, 2023.

Outlook

The current administration has a concerted focus on the nursing home industry, including the role of private equity, and now REITs. For the administration to take this rule up again after 10 plus years in limbo, one would expect they intend to finalize it in some form. That said, CMS could alter definitions or aspects based on the feedback it receives, making it very important to provide comments by April 14.

How we can help

There is plenty on the plate for nursing homes. If you need assistance submitting comments to CMS, reach out today. If you need help determining how digital can be deployed, CLA can assist. If you need outsourced support for your back office, we have the resources.

Whatever your financial or operational needs may be, let us know. CLA is here is for you.