CMS announced plans for expansion of enforcement activities to improve provider accountability and sustained compliance of infection control practices in a June 1 CMS Memo. The memo also reinforced their expectations for state survey agencies and the timely completion of infection control focused surveys. CMS’ concerns about provider compliance with infection control practices is certainly not new, however, the emergence of COVID-19 certainly elevated that concern due to the serious threat to resident health and safety. Compliance concerns, lower than expected focused survey completion rates, and results from the federal reporting requirements prompted CMS to take an aggressive approach in its guidance.
I can’t help but wonder if this is akin to kicking someone when they’re down.
Fifty-three percent of the nation’s nursing facilities have experienced a Focused Infection Control survey. However, the completion variability across states, ranging from 11-100%, certainly did not meet CMS’ expectations for the state survey agencies. CMS clearly indicated in the memo that states needed further direction to prioritize completion of focused infection control surveys in nursing homes.
States that have not completed 100% of their focused infection control nursing home surveys by July 31, 2020, will be required to submit a corrective action plan to their CMS location outlining the strategy for completion of these surveys within 30 days. After the 30-day period, if States have still not achieved surveys in 100% of their nursing homes, their CARES Act FY2021 allocation may be reduced by up to 10%. Subsequent 30-day extensions could result in an additional reduction up to 5%. These funds would then be redistributed to those States that completed 100% of their focused infection control surveys by July 31.
SNFs Still Have Their Hands Full
I’m pretty sure skilled nursing facilities (SNFs) aren’t feeling sorry for the state survey agencies. SNFs still have their hands full either caring for residents with the virus or working diligently to keep it out. Not a task for the faint of heart! In addition to the new extensive reporting requirements mandating weekly submissions of data to the CDC, facilities are also tasked with informing residents, their families or representatives if new occurrences of COVID are identified or 3 or more residents or staff show respiratory symptoms occurring within 72 hours of each other.
Additional Measures to Improve Accountability and Compliance
The memo builds on prior CMS actions by adding measures to improve accountability and sustained compliance of infection control practices. In addition to the enhanced enforcement, Directed Plans of Correction will be provided that aim to push for systemic organizational changes to achieve sustained compliance from the facilities. The memo also outlines the enforcement remedies for the following specific scenarios:
Non-compliance for an Infection Control deficiency when none have been cited in the last year (or on the last standard survey)
Nursing homes cited for current non-compliance that is not widespread (Level D & E) – Directed Plan of Correction
Nursing homes cited for current non-compliance with infection control requirements that is widespread (Level F) – Directed Plan of Correction, Discretionary Denial of Payment for New Admissions with 45-days to demonstrate compliance with Infection Control deficiencies.
Non-compliance for Infection Control Deficiencies cited once in the last year (or last standard survey)
Nursing Homes cited for current non-compliance with infection control requirements that is not widespread (Level D & E) -Directed Plan of Correction, Discretionary Denial of Payment for New Admissions with 45days to demonstrate compliance with Infection Control deficiencies, Per Instance Civil Monetary Penalty (CMP) up to $5000 (at State/CMS discretion)
Nursing Homes cited for current non-compliance with infection control requirements that is widespread (Level F) -Directed Plan of Correction, Discretionary Denial of Payment for New Admissions with 45-days to demonstrate compliance with Infection Control deficiencies, $10,000 Per Instance CMP
Non-compliance that has been cited for Infection Control Deficiencies twice or more in the last two years (or twice since second to last standard survey)
Nursing homes cited for current non-compliance with Infection Control requirements that is not widespread (Level D & E) -Directed Plan of Correction, Discretionary Denial of Payment for New Admissions, 30-days to demonstrate compliance with Infection Control deficiencies, $15,000 Per Instance CMP (or per day CMP may be imposed, as long as the total amount exceeds $15,000)
Nursing homes cited for current non-compliance with Infection Control requirements that is widespread (Level F) -Directed Plan of Correction, Discretionary Denial of Payment for New Admissions, 30-days to demonstrate compliance with Infection Control deficiencies, $20,000 Per Instance CMP (or per day CMP may be imposed, as long as the total amount exceeds $20,000)
Nursing Homes cited for current non-compliance with Infection Control Deficiencies at the Harm Level (Level G, H, I), regardless of past history.
Directed Plan of Correction, Discretionary Denial of Payment for New Admissions with 30 days to demonstrate compliance with Infection Control deficiencies. Enforcement imposed by CMS Location per current policy, but CMP imposed at highest amount option within the appropriate (non-Immediate Jeopardy) range in the CMP analytic tool.
Nursing Homes cited for current non-compliance with Infection Control Deficiencies at the Immediate Jeopardy Level (Level J, K, L) regardless of past history
In addition to the mandatory remedies of Temporary Manager or Termination, imposition of Directed Plan of Correction, Discretionary Denial of Payment for New Admissions, 15-days to demonstrate compliance with Infection Control deficiencies. Enforcement imposed by CMS Location per current policy, but CMP imposed at highest amount option within the appropriate (IJ) range in the CMP analytic tool.
QIOs Assistance
The memo did include some non-punitive actions by CMS as they leveraged the Quality Improvement Organizations (QIOs) to assist nursing homes in combating COVID-19 through such efforts as education and training, creating action plans based on infection control problem areas, and recommending steps to establish a strong infection control and surveillance program. Training can include working with staff on proper use of personal protective equipment (PPE), cohorting residents appropriately and transferring residents safely. The QIOs monitor compliance with infection control standards and practices in the nursing home. Nursing homes can locate the QIO responsible for their state.
CMS June 4 Memo
CMS followed this memo up quickly with a June 4th Memo notifying facilities that facility survey data was now being reported on Nursing Home Compare. The zip file containing this information is on the Nursing Home Compare Home Page under the Spotlight section and provides PDF files of individual facility Statements of Deficiencies (CMS-2567) in a format difficult to review and provides no context for consumer analysis. Perhaps CMS was more interested in checking the box for completion rather than sharing quality information that consumers will understand. None of this focused survey data is currently being used in the Five Star calculations for Health Inspections.
Survey data from inspections conducted after March CMS memos highlighting the focused surveys are also available.
Negative Coverage of SNFs
SNFs are certainly getting the lion’s share of CMS scrutiny over COVID-19 and the media continue to add dramatic flair to the story. It is somewhat understandable as nearly half of all COVID related deaths were in SNFs, but SNFs aren’t the only providers dealing with COVID patients or prone to less than perfect infection control practices. Individual hospitals’ COVID related data is not shared publicly, nor are they scrutinized or criticized in the media for having deaths related to COVID.
Many SNFs continue to struggle with basic PPE supply levels as nursing homes were not prioritized for government intervention to ensure adequate supplies. Some even had ordered supplies diverted to hospitals or to the national reserve supply. It is well known that SNFs serve the most vulnerable population with multiple comorbidities in a congregate living setting, so what did we as a nation expect when we deprioritized them for supplies and testing? We sent them to war with no armor, then publicly criticized their efforts.
Now, CMS adds more teeth to their enforcement efforts aiming to gain more sustained compliance by facilities. I wonder if this is the best approach. I believe facilities want to give the best care possible, but struggles happen. Many are working with limited supplies of personal protective equipment (PPE) and reduced resources due to staff illnesses and other COVID related impacts keeping them from work. The threat of further financial damage with hefty fines on top of all the negative hype in the media just may just push some of the most caring and hardworking folks right out of the industry. It hasn’t worked in the past. Perhaps a new approach by CMS might achieve different results.
More Resources from Maria Arellano for Skilled Nursing and Post-Acute Professionals:
- Managing Risks in Your Network of SNFs Amidst COVID-19
- Survey Reprieve During the Pandemic – For Some Anyways…
- COVID-19: Policy Updates and Care Considerations
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