The Centers for Medicare & Medicaid Services (CMS) released updates to the State Operations Manual on January 30, 2026. Updates were made to Chapter 5, which outlines complaint investigations, and Chapter 7, which relates to the long-term care survey process. When announcing these updates, CMS stated that the updates did not represent new policies; rather, the State Operations Manual was revised to be consistent with existing policies and practices, some of which were previously released through Quality, Safety, & Oversight (QSO) memos. LeadingAge has reviewed the revised chapters and notes important details below.

Chapter 5 – Complaint Procedures

Intake Prioritization. CMS updated information on prioritizing complaint intakes specifically related to Immediate Jeopardy prioritization. Consistent with recent years’ increased focus on safe discharges, CMS added the following to the examples of intakes prioritized as immediate jeopardy:

For nursing homes, all intakes where a resident was discharged to an unsafe setting, or in a manner that places the resident at risk for serious harm (e.g. the resident still has medical needs but they cannot be supported in the setting they were discharged to).

This example aligns with 2025 updates to the Long-Term Care Surveyor Guidance (Appendix PP of the State Operations Manual) in which CMS noted under the Deficiency Categorization section of F627 Inappropriate Discharges that “Violations of requirements at F627 Inappropriate Discharges would generally be cited at severity level of harm (Level 3) or Immediate Jeopardy (Level 4).” CMS bases this directive on the assumption that serious physical harm and psychosocial harm would occur from an unsafe discharge.

Off-site Investigations. CMS clarifies that offsite investigations of complaints are rare and must be approved in advance by CMS. Offsite reviews would generally only be approved in circumstances of documentation-only complaints, such as those related to arbitration agreements, third party guarantee of payment, or prohibition on charges for services covered under Medicaid. In these cases, CMS may approve off-site review of documentation to determine compliance, cite noncompliance, and require corrections. With any approved off-site investigation, the state agency may confirm the findings of the offsite investigation during the next on-site survey.

Chapter 7 – Survey and Enforcement Process for Skilled Nursing Facilities and Nursing Facilities

Nurse Staffing Waivers. Chapter 7 now includes an extensive section explaining available waivers for nurse staffing. The section outlines the waivers available, criteria for eligibility, and the process for applying for and granting waivers. Waivers of registered nurse requirements and licensed nurse requirements are dependent upon the type of facility (skilled nursing facility, nursing facility, or dually-certified SNF/NF) and related eligibility criteria are outlined for each. Waivers for Life Safety Code requirements are also outlined.

In the past, processes surrounding nurse staffing waivers seemed shrouded in mystery and no public data was available at the federal level detailing how many nursing homes were operating under such waivers at a given time. Anecdotally, it seemed that waivers were rarely granted, if ever, and with the migration of these policies to Chapter 7, we now know why. Nurse staffing waivers are only available in circumstances where the nursing home has been cited at Level 1 noncompliance (scope and severity A, B, or C). Level 1 noncompliance generally accounts for only 2% of all citations.

Survey Team Composition. CMS clarifies that surveyors must complete a training and testing program to survey independently. Surveyors that have not completed the Surveyor Minimum Qualifications Test (SMQT) may participate in surveys and complete survey tasks for which they have successfully demonstrated understanding but must be supervised by a qualified SMQT surveyor. Initial and recertification (standard) surveys must be conducted by a multidisciplinary team that includes at least one registered nurse; however, complaint investigations and on-site revisits allow the use of specialized investigative teams that include professionals appropriate to the allegation or concern and may not include a registered nurse.

Specialty surveyors participating in standard, complaint, and revisit surveys should be on-site during the portion of the survey that relates to their area of expertise and must conduct that portion of the survey while the entire team is present. Chapter 7 does not seem to indicate that the entire survey team must be with the specialty surveyor during the specialized portion of the survey but rather seems to indicate only that the survey team must be on-site at the time the specialty surveyor conducts his/her portion of the survey. The specialty surveyor must also meet with the survey team or team coordinator to share findings and relevant documentation prior to completing his/her portion of the survey and existing the nursing home. The specialty surveyor should also be available, if not present, at the time of deficiency determination and exit conference.

Use of Photography During Survey. Chapter 7 contains a new section on the basic principles of using photography during a survey. Use of photography is not required, but is permitted, and state agencies must develop guidance and train staff on proper use. CMS states that photography may be used to supplement written documentation but cannot stand alone and should not be included as part of the CMS-2567 Statement of Deficiencies.

Basic principles of the use of photography during survey include obtaining written consent from the resident / resident representative and surveyors should avoid taking photographs that would reveal an individual’s face or other uniquely identifying information. Surveyors are instructed to get a complete series of photographs including an overview, a mid-range photograph, and a close-up; and CMS instructs surveyors on appropriate documentation and storage of photographs.

Confidentiality of Survey Materials and Communication During Survey. CMS states that surveyor notes and documentation collected during the process are not required to be disclosed to the nursing home at the time of survey, as they are considered pre-decisional information. CMS states that while the survey team should maintain open dialogue with the nursing home throughout the process, they are not required to share observations daily or conduct daily exit conferences. CMS further instructs surveyors to consider if a negative observation needs to be monitored over time to establish a trend, in which case it would be prudent to wait until a trend has been established before communicating with the nursing home.

Exit Conference. CMS outlines guidance for conducting the exit conference, including conduct of the survey team. CMS notes that the exit conference is “a courtesy to the facility” to discuss preliminary findings and surveyors must indicate that all findings are subject to supervisory review by the State and/or CMS Location. For this reason, scope and severity should not be discussed other than Immediate Jeopardy. However, surveyors should provide enough information and detail to allow the nursing home to develop an appropriate plan of correction.

Of note, CMS explicitly states that surveyors “should not make general statements such as, ‘Overall the facility is very good,’”, should not assume intent for noncompliance, nor assign blame to the nursing home or individual staff. Additionally, CMS states surveyors “should not provide consultation, such as explaining how the facility can be compliant.” While there is much disagreement in the field as to whether this supports quality improvement, it is important to be aware of the directives under which state agencies are operating. That said, CMS explicitly states that “there should be few instances where the facility is not aware of surveyor concerns or has not had an opportunity to present additional information prior to the exit conference.”

Immediate Jeopardy. CMS imported into Chapter 7 several sections that were previously updated in Appendix Q of the State Operations Manual. This includes identification of Immediate Jeopardy, removal of Immediate Jeopardy, and lowering severity when Immediate Jeopardy is removed. CMS instructs surveyors that when Immediate Jeopardy is removed, the level of severity of any remaining noncompliance must be determined. In some cases, this will mean that remaining noncompliance is lowered to severity Level 2 (no actual harm with potential for more than minimal harm that is not immediate jeopardy). However, there may be circumstances in which multiple instances of noncompliance involving multiple residents have occurred at the same tag, such as different types of noncompliance under F689 Free of Accident Hazards / Supervision / Devices. In such a case, Immediate Jeopardy may be removed related to one instance of noncompliance, but a different type of noncompliance involving a different resident may still constitute harm-level noncompliance and would be cited as such.

Revisits. CMS instructs that in cases requiring a revisit, the purpose is to re-evaluate the specific findings of noncompliance cited during the original survey. For this reason, the scope of revisit will be dictated by the nature of noncompliance, and not all survey tasks will be repeated. For example, a revisit that is unrelated to drug distribution would not require another observation of med pass. However, CMS instructs surveyors to always conduct the QAPI/QAA review and notes that the survey team is not prohibited from gathering information related to any requirement during a post-survey revisit.

If new noncompliance is found during a revisit and the newly found noncompliance is both different from the original noncompliance and occurred on a date after the original noncompliance was corrected, the enforcement cycle for the original survey would be ended and a new enforcement cycle would begin for the newly identified noncompliance.

Survey Timing and Off-Hours Surveys. LeadingAge members have expressed concern in recent years over somewhat erratic timing and attendance of surveyors during surveys. For example, members report surveys being initiated, then stopped abruptly, with surveyors not returning for several days, or surveys being conducted and surveyors do not return, but the exit date is delayed several days. CMS states in Chapter 7 that survey teams are expected to remain in the nursing home after entrance for a minimum of five consecutive hours and that surveys should be conducted on consecutive days. For example, if a survey team enters on a Friday, the survey team should continue the survey through the weekend rather than not returning to the nursing home until the following Monday.

Recall, too, that state agencies are required to conduct at least 10% of standard health surveys as off-hours surveys, meaning that they begin either on the weekend or before 6:00 a.m. / after 5:00 p.m. on weekdays. During off-hours surveys, surveyors should conduct an entrance conference with the designated individual on-site, then repeat the entrance conference with the Administrator upon his/her arrival. The surveyor should also be mindful to proceed with survey activities that respect residents’ need for sleep during off-hours surveys. For example, while observations of the resident and room may be made, interviews should be deferred until the resident is awake.

Civil Money Penalties and Determining Substantial Compliance. Chapter 7 incorporates the latest policy changes to enforcement of civil money penalties (CMPs) finalized in the Fiscal Year 2025 Skilled Nursing Facility (SNF) Prospective Payment System (PPS) rule. This rule expanded enforcement authority to allow both per day and per instance CMPs to be enforced for the same survey, multiple CMPs to be enforced for the same type of noncompliance, and for CMPs to be enforced back through the last three standard survey cycles.

CMS clarifies that dates of substantial compliance, at which point per day CMPs conclude, may not always be the date specified in the plan of correction, but also are not necessarily the date of revisit. Dates of substantial compliance should be based on credible evidence provided by the nursing home and CMS provides more than thirty-five examples of acceptable credible evidence.

CMP Reinvestment. CMS now includes in Chapter 7 information about the Civil Money Penalty Reinvestment Program, according to program updates in September 2025. CMS also outlines how CMPs collected by CMS and the state are apportioned. When a federal CMP is collected by CMS, funds are returned to the state or maintained by CMS according to certification. Federal CMPs collected from a Medicaid-only nursing home are returned to the state. Federal CMPs collected from a Medicare-only nursing home are retained by CMS.

For federal CMPs collected from a dually participating nursing home, the CMP is apportioned commensurate with the relative proportions of Medicare and Medicaid in use by residents at the nursing home on the date the CMP begins to accrue. The Medicaid portion is returned to the state to be used in the CMP Reinvestment Program. Ten percent of the Medicare portion is returned to the Department of the Treasury and the remaining 90% is used by CMS for activities that protect or improve the quality of care or life of residents, such as the CMS Nursing Home Staffing Campaign.

CMPs imposed and collected by the state remain in the state and CMS does not have the authority to determine uses of these funds as long as they are applied to the protection of the health or property of residents of nursing homes.