On August 17, 2020, the Quality, Safety & Oversight Group at the Centers for Medicare & Medicaid Services (“CMS”) issued a memorandum entitled “Enforcement Cases Held during the Prioritization Period and Revised Survey Prioritization” (“QSO Memo”) that announced the further expansion of survey activity and guidance around enforcement activity. The QSO Memo follows previous CMS guidance on COVID-19 survey activity released on June 1, 2020 and CMS guidance on nursing home reopening recommendations for state and local officials on May 18, 2020.
Previously, on March 23, 2020, CMS issued guidance, which further limited survey activity to focused infection control surveys, investigation of complaints and facility reported incidents alleging immediate jeopardy (“IJ”) to patient/resident health and safety, and revisit surveys necessary to verify removal of previously identified IJ deficiencies. Due to the inability to perform revisit surveys to verify substantial compliance during this period, the memo also directed that open enforcement actions pending as of March 23, 2020 be suspended, except for enforcement actions for unremoved IJ deficiencies. Our overview is located here.
SURVEY EXPANSION
CMS revised its prior guidance to authorize additional onsite surveys. This survey expansion applies to all providers, which include nursing homes, home health and hospice providers.
The QSO Memo calls on state survey agencies to conduct the following activities:
- 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 recertification surveys in facilities where it has been over 15 months since the last standard survey.
States should resume performing the above-described surveys as soon as they have the resources, including, staff and/or personal protective equipment to conduct those surveys.
ENFORCEMENT GUIDANCE
In March 2020, when the QSO 20-20-ALL memorandum went into effect, CMS locations were directed to suspend enforcement actions, except for the unremoved IJs. As a result, several enforcement activities were also suspended, except for unremoved IJs, including the accrual of Denials of Payment for New Admissions and per day Civil Monetary Penalties (“CMPs”). All providers must now submit Plans of Correction and this new guidance from CMS outlines how states and regions should resolve suspended enforcement actions.
CMS intends to resolve those enforcement cases that were suspended and provide guidance for closing them out, going forward from the issuance of the QSO Memo. This process involves 4 components:
- Expanding the Desk Review policy for Plans of Corrections;
- Processing enforcement cases that were started BEFORE March 23, 2020;
- Processing enforcement cases that were started ON March 23, 2020, THROUGH May 31, 2020; and
- Processing enforcement cases that were started ON OR AFTER June 1, 2020.
DESK REVIEWS EXPANDED
CMS is expanding desk reviews of Plans of Correction.
The state survey agency will contact providers who have not submitted a Plan of Correction to resolve them using the following guidelines:
- All open surveys with cited deficiency tags must have an acceptable Plan of Correction and supporting evidence in order for the tags to be corrected (unless a Plan of Correction is not required such as for isolated deficiencies that CMS or the State determines constitute no actual harm with a potential for minimal harm);
- If providers have not submitted a Plan of Correction, the state survey agency will contact them requesting submission of a Plan of Correction;
- Providers will have 10 calendar days to submit their Plan of Correction for surveys that were issued from March 23, 2020 to May 31, 2020;
- Plan of Corrections for surveys that will end on or after June 1, 2020, will follow the normal Plan of Correction submission process;
- State surveyors can 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;
- Any unremoved IJs, which still require an onsite revisit; and
- Beginning June 1, 2020, all onsite revisits are authorized and should resume, as appropriate.
KEY TIMEFRAMES
The QSO Memo outline different ways CMS will address resolving provider and supplier enforcement cases that fall into 3 categories those: (1) initiated prior to March 23, 2020; (2) initiated between March 23 and May 31, 2020; or (3) initiated on or after June 1, 2020.
1) PRE-MARCH 23, 2020 ENFORCEMENT
For enforcement remedies that were imposed before March 23, 2020:
- If the provider was sent notice of the enforcement remedy, either Directed Plan of Correction or CMP prior to March 23, 2020 and the matter was not resolved, the remedy will accrue from the date of notice through March 22, 2020 or the date of substantial compliance per an accepted Plan of Correction, whichever is earlier.
- If the provider was not given notice of the enforcement remedy prior to March 23, 2020 remedies must be imposed according to the Immediate Imposition of Remedies and will accrue from the start date of the CMP and continue through March 22, 2020 or the date of substantial compliance per an accepted Plan of Correction, whichever is earlier. CMS will then proceed to the collection of the CMP.
2) ENFORCEMENT BETWEEN MARCH 23, 2020 and MAY 31, 2020
For enforcement cycles during the prioritization period March 23, 2020 through May 31, 2020, CMPs will be issued for citations at Scope and Severity Level of G-level and higher. CMS will not impose CMPs for noncompliance cited at lower Scope and Severity Levels of D, E or F.
3) ENFORCEMENT ON OR AFTER JUNE 1, 2020
For enforcement cycles beginning after June 1, 2020, enforcement processes will follow regular enforcement process in the State Operations Manual. However, for the imposition of per day CMPs if a survey finds that the first day of noncompliance began during the survey prioritization period (March 23, 2020 through May 31, 2020), the per day CMP will accrue effective the date of survey entrance.
CMP COLLECTIONS
For CMPs that were due during the prioritization period, March 23, 2020 through May 31, 2020, CMS will re-issue the CMP Due and Payable notice with a collection date of 15 days after the notice.
CMS will reduce a CMP by 35% for facilities whose 60-day time to appeal has passed
during the prioritization period, but were unable to notify CMS that they are waiving their right to a hearing.
KEY TAKEAWAYS
- Facilities should be ready for the immediate possibility of in-person and on-site surveys and the restart of any suspended surveys or enforcement actions that started several months ago.
- Facilities should expect to see survey activity through a blend of desk reviews and on-site surveys.
- Facilities must prepare to resolve pending enforcement remedies.
If you have questions or would like additional information about this topic, please contact:
- Sean Fahey at (317) 977-1472 or sfahey@hallrender.com;
- Todd Selby at (317) 977-1440 or tselby@hallrender.com;
- Brian Jent at (317) 977-1402 or bjent@hallrender.com; or
- Your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
