On 08/17/2020 CMS announced that they are revising guidance on the expansion of survey activities to authorize onsite revisits and other surveys, and guidance was provided to State Survey Agencies (SA) on resolving previously “on hold” enforcement cases. A temporary expansion to the desk review policy was also announced.
Background & Recent Updates
On June 1, 2020 CMS issued survey reprioritization guidance to transition States to more routine oversight and survey activities once a State has entered Phase 3 of the Nursing Home Reopening Guidance. At that time, states were authorized to expand beyond conducting only IJ, Focused Infection Control, and Initial Certification survey, and were permitted to resume the following types of surveys, at the state’s discretion:
- Complaint investigations that are triaged as Non-Immediate Jeopardy-High;
- Revisit surveys of any facility with removed Immediate Jeopardy (but still out of compliance);
- Special Focus Facility and Special Focus Facility Candidate recertification surveys; and
- Nursing home and Intermediate Care Facility for Individuals with Intellectual Disabilities (ICF/IID) recertification surveys in facilities where it has been over 15 months since the last standard survey.
On Aug. 17, 2020, CMS revised this guidance to authorize states to also conduct onsite revisits, complaint investigations triggered as Non-IJ Medium, and annual recertification surveys as soon as the state has the resources (e.g. staff and/or Personal Protective Equipment) to do so.
On March 4, 2020, CMS locations were directed to suspend enforcement actions, with the exception of unremoved IJs, because revisit surveys necessary to end an ongoing enforcement cycle were suspended. This included stopping the accrual of Denial of Payment for New Admissions (DPNAs) and per day Civil Money Penalties (CMPs). The Aug.17, 2020 memo provided guidance for closing out enforcement cases that were suspended using a process involving four components:
- Expanding the Desk Review policy for Plans of Corrections (POCs);
- Processing enforcement cases that were started BEFORE March 23, 2020;
- Processing enforcement cases that were started ON March 23, 2020, THROUGH May 31, 2020;
- Processing enforcement cases that were started ON OR AFTER June 1, 2020.
For enforcement cases that were started from March 23-May 31, 2020, all open surveys with cited deficiency tags must have an acceptable plan of correction (POC) and supporting evidence for the tags to be corrected. If providers have not submitted a POC, the SA will contact them with a request to submit one within 10 calendar days for surveys that ended prior to June 1, 2020. POCs for surveys ending on or after June 1, 2020 will follow the normal POC submission process.
State surveyors are authorized to perform desk reviews for all open surveys that cited any level of noncompliance, including noncompliance that was cited at the IJ level, when the IJ finding has been verified as removed to a lower level of noncompliance, or corrected. The only exception to the expanded offsite review policy is for any unremoved IJs, which still require an onsite revisit. This expanded desk review policy applies only to outstanding enforcement actions that were held from March 23, 2020, through May 31, 2020. Beginning June 1, 2020, all onsite revisits are authorized to resume, as appropriate, per SOM, Chapter 7, Section 7317.2.
A desk review can only be completed with supporting evidence from the facility that supports the correction of noncompliance. This evidence may include documentation containing dates of training, staff in attendance, and evidence that staff were evaluated for skill(s) competency. It may also include monitoring for policy implementation and successful performance by staff.
To alleviate any concerns related to clearing noncompliance cited at Actual Harm, or remaining noncompliance following removal of IJ without an onsite revisit, SAs have discretion to include the clinical area of concern cleared using the expanded desk review on the next onsite survey conducted.
For enforcement actions that started before March 23, 2020, but were stopped due to the suspended enforcement actions, if the initial notice of remedies was sent to the provider prior to March 23, 2020, but not finalized due to the inability to conduct a revisit, the accruing enforcement remedies, such as per day CMPs or DPNAs, will run through March 22, 2020, or the date of substantial compliance per the verified accepted POC, whichever is earlier. In this situation CMS will inform the facility of the CMP amount due and proceed to collect. If the initial notice of remedies was not sent prior to March 23, 2020, CMS will impose remedies in accordance with the Immediate Imposition of Remedies Policy in Chapter 7 of the SOM. If a per day CMP is imposed, the penalty will accrue based on the start date of the CMP and continue through March 22, 2020, or the date of alleged compliance per accepted POC, whichever is earlier and CMS will proceed to collect CMPs. Retroactive impositions of DPNA will not occur.
Because of the inability to conduct revisits to end an enforcement cycle, surveys with an exit date after March 23, 2020, that fell into enforcement cycles with start dates prior to March 23, 2020, will be pulled out of the existing cycles and will establish a separate cycle. This will result in two enforcement cycles, one starting before March 23, 2020, and one starting on March 23, 2020. The resulting cycle starting before March 23, 2020, is subject to the enforcement direction above for Enforcement Cycles started BEFORE March 23, 2020. The resulting cycle starting on March 23, 2020, is subject to the enforcement direction below for Enforcement Cycles started ON March 23, 2020 THROUGH May 31, 2020.
For enforcement cycles started on March 23 – May 31, 2020, CMS will impose CMPs for noncompliance cited at actual harm or IJ levels. CMPs for IJs will be imposed per the CMP analytic tool, with per day CMPs only accruing for the period of time the IJ existed until removal was verified with an onsite revisit. A per instance CMP will be imposed for noncompliance cited at the Actual Harm level. Enforcement cycles may be closed using the expanded desk review policy for remaining noncompliance.
Enforcement cycles beginning with noncompliance cited on surveys exiting on or after June 1, 2020, will be subject to regular enforcement processes in the SOM and to the enhanced enforcement for infection control deficiencies outlined in QSO 20-31-All. If a survey finds that the first day of noncompliance began prior to the survey entrance and/or between March 23-May 31, 2020, any per day CMPs imposed will start effective the beginning date of the survey entrance.
Take Action to Prepare
With the new enforcement sanctions in place related to Infection Control Citations, it is imperative that you are prepared for your next survey. Proactive Medical Review can assist you with preparing for Infection Control Focused surveys and recertification surveys, as well as provide assistance with POCs. Please contact us to learn more about or mock survey process and how we can help you prepare and respond to your next survey.