Past Non-Compliance Doesn't Have to Result in a Citation

Have you ever had an adverse event happen in your community where you identified that a deficient practice may have contributed to, or failed to prevent, the incident? This may surprise you, but CMS understands that this can happen and they're willing to give you an opportunity to avoid citations! Shocking but true, back in October 2005 a memo was published by CMS outlining the History of Past Non-Compliance (HPNC) process (www.cms.gov).

Avoiding Citations with HPNC

So what does this mean for you? This is a great way for your interdisciplinary QAPI committee to work on root cause analysis post-incident. Let’s look at an example.

Mrs. Fracture has experienced multiple falls in the past few weeks. Fortunately, she was free of injuries until today when she fell and fractured her hip. The QAPI committee reviewed Mrs. Fracture’s incidents, care plan, and documentation. They identified that the resident fell on the same shift, at approximately the same time, and each fall was related to toileting. What we learned from this analysis is that IF we had identified the toileting needs earlier (root cause), Mrs. Fracture may not be in surgery today. This is a pretty simple example—multiple falls, failure to identify root cause, negative outcome—but it should give you some frame of reference for the discussion.

With HPNC, we have an opportunity to say, “Hey we didn’t identify the root cause of this resident’s falls until after a negative outcome.” Sounds ominous doesn’t it? But here's the key: you identified it and you're doing something about it. That's the intent of this regulation—things happen but are you DOING SOMETHING ABOUT IT?

What Do You Need for HPNC?

Let’s talk about the elements of a successful HPNC.

• The facility must not have been in compliance with a regulatory requirement at the time the situation occurred (i.e., we identified a deficient practice that could have resulted in a citation)
• The situation of non-compliance must have occurred after the exit date of the last survey and before the current survey (this includes standard surveys, complaint surveys, and revisits)
• There must be specific evidence that the facility corrected the non-compliance at the time of the incident and is in substantial compliance at the current survey

As with everything we do, documentation of HPNC must meet the standard and regulatory language. The documentation requirements include:

• Past non-compliance that is NOT immediate jeopardy and for which a quality assurance program has corrected the non-compliance should not be cited. Note: The facility needs to bring this to the attention of the surveyor (they are not required to ask you for it). The facility must provide the evidence to the surveyor who will contact his/her manager to review the information and make a determination if the evidence meets the criteria for past non-compliance. If a surveyor is reviewing a resident’s medical record or questions you regarding a specific incident and you have done an HPNC, tell the surveyor and produce the documents for their review.
• HPNC identified as immediate jeopardy is entered on the CMS-2567 under the specific deficiency tag, scope, and severity with supporting documentation.
• The CMS-2567 will include the appropriate F-tag, date of deficiency, the date of past non-compliance, the evidence of past non-compliance, and implementation of a plan of correction so that the civil money penalty can be determined.
• No POC is required for HPNC citations. No revisit is conducted for HPNC citations.

Take Advantage of HPNC at Your Facility

Sound too good to be true? Follow the logic. An incident occurs, the facility identified a deficient practice and corrected it. Isn’t that the goal of a QAPI committee?

Here's a checklist of things to assist you in developing a plan:

• Description of deficient practice (why and how did it happen)?
• Plan of correction (internal, formatted to meet the CMS guidelines)
• In-depth analysis of how the deficiency occurred
• How the facility identified affected residents and residents having potential to be affected by the same deficient practice
• Corrective actions taken for affected residents 
• Measures or systemic changes made to ensure that deficient practice will not recur and affect others
• How the facility monitors its corrective actions to ensure deficient practice is corrected and will not recur. (This is the key to the process—ongoing monitoring and documentation is the only way to evaluate whether the plan of correction was effective!)
• Date of completion of the plan of correction (attach documents for evidence of compliance)
• Name (printed) and signature of person completing the report

These are basic guidelines. It is highly recommended that you educate yourself and your interdisciplinary team on the importance of identifying the root cause of incidents in a timely manner and review the requirements for HPNC to determine if the process would help prevent citations. A full description of this process and regulatory language can be found at www.cms.gov.

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