June 28, 2022

Volume XII, Number 179


June 28, 2022

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June 27, 2022

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CMS to Enhance Enforcement Actions Against Long-Term Care Facilities – What to Expect and How to Prepare

On June 1st, CMS issued a press release outlining its efforts to enhance enforcement actions against nursing homes and skilled nursing facilities (“LTC facilities”) with violations of infection control practices.  CMS’s initiative is based on COVID-19 data and inspection results conducted during the Focused Infection Control survey inspections initiated by CMS on March 6, 2020.  CMS also issued further directives to state survey agencies concerning COVID-19 reporting and infection control, including performance-based funding tied to the CARES Act. 

CMS’s most recent directives follow the OIG’s recent addition of LTC Facility infection prevention and control program deficiencies to its work plan. See here and here for more specific information.

CARES Act & the Increase in State Survey

In March 2020, Congress appropriated $100 million in supplemental funds to CMS for survey costs and certification efforts with a focus on areas where there was community spread of COVID-19.  Approximately $81 million of that amount will be distributed to state agencies through September 30, 2023 for increased survey efforts.  

CMS has stated that the CARES Act funding is being used:

  • to complete Focused Infection Control survey for LTC Facilities to be completed by July 31, 2020, 

  • increase compliant surveys based on COVID-19 trend data reported by LTC Facilities to the CDC, and 

  • perform re-opening surveys of facilities with previous COVID-19 outbreaks using “unique survey protocols” to ensure facilities have infection control systems in place.  

As of June 1st, the allocation of CARES Act funds to state survey agencies by CMS will be based on certain performance-based metrics following this first round of Focused Infection Control inspections.  States that fail to complete 100% of their targeted infection control inspections by July 31, 2020 risk losing a percentage of their CARES Act funding as a penalty for non-compliance.  Thus, states are incentivized to complete these inspections or risk financial penalties.

LTC Facility Reporting Requirements

On May 8, 2020, CMS implemented mandatory reporting for LTC Facilities to notify state and local health departments about residents or staff with suspected or confirmed COVID-19.  Reporting is through the CDC’s National Health Safety Network (NHSN) system.

Effective June 4th, CMS made the information reported to the NHSN public on CMS’s Nursing Home Compare website. See here and here for more specific information. Facilities must report the following information which is now publically available: 

  • Suspected and confirmed COVID-19 infections among residents and staff, including residents previously treated for COVID-19; 

  • Total deaths and COVID-19 deaths among residents and staff; 

  • PPE and hand hygiene supplies in the facility; 

  • Ventilator capacity and supplies available in the facility, resident beds, and census; 

  • Access to COVID-19 testing while the resident is in the facility; 

  • Staffing shortages; 

  • And other information specified by the Secretary of the U.S. Department of Health and Human Services 

The foregoing information must be reported no less than weekly to the CDC and NHSN.

Additional COVID-19 State Survey Requirements as of June 1st

CMS’s most recent mandate also requires states to implement the following COVID-19 survey activities - in addition to the Focused Infection Control surveys: 

  • Perform on-site surveys (within 30 days of the June 1st memo) of facilities with previous COVID-19 outbreaks, defined as: (1) Cumulative confirmed cases/bed capacity at 10% or greater; or (2) Cumulative confirmed plus suspected cases/bed capacity at 20% or greater; or (3) Ten or more deaths reported due to COVID-19. 

  • Perform on-site surveys (within three to five days of identification) of any facility with 3 or more new COVID-19 suspected and confirmed cases in the since the last National Healthcare Safety Network (NHSN) COVID-19 report, or 1 confirmed resident case in a facility that was previously COVID-free. 

  • Starting in FY 2021, perform annual Focused Infection Control surveys of 20 percent of facilities based on State discretion or additional data that identifies facility and community risks. States that fail to perform these survey activities timely and completely could forfeit up to 5% of their CARES Act Allocation, annually.

Enhanced Enforcement Action for Infection Control Deficiencies

Substantial noncompliance (D or above) with any deficiency associated with Infection Control requirements will lead to certain enforcement remedies.  Based on the level of noncompliance and history of infection control deficiencies, enforcement action may include, but is not limited to: 

  • Directed Plans of Correction

  • discretionary denial of payment for new admissions, 

  • a specific period of time to demonstrate compliance with infection control deficiencies, 

  • enhanced civil monetary penalties on a per instance basis and in some cases up to highest amount option within the appropriate range in the CMP analytic tool

What Should LTC Facilities Do to Comply with these Efforts and Prepare for Survey Inspections? 

LTC Facilities can take several measures to proactively comply with these directives.  These measures include, but are not limited to: 

  • ensuring compliance with CMS’ mandatory reporting requirements related to COVID-19; 

  • immediately evaluating their level of compliance with CMS and CDC guidelines concerning infection control; 

  • self-auditing to identify issues that place the facility at risk for non-compliance; 

  • evaluating infection control practices – facilities with previous violations of infection control practices or longstanding violations are most likely to be scrutinized; 

  • increasing staff training on proper use of PPE, grouping residents appropriately, and transferring residents safely;

  • familiarizing themselves with the resources outlined in CMS’s Nursing Home Toolkit.  Although CMS takes the position that the Tool Kit is a resource only, the Toolkit provides substantial resources available to facilities to help bolster compliance; 

  • identifying and implementing relevant state resources published by state agencies in coordination with CMS concerning updates on changes to infection control policies and guidelines. 

  • availing themselves of Quality Improvement Organizations (QIO) to help identify their greatest areas of infection control problems, create action plans, and implement specific steps to establish strong infection control and surveillance programs.  LTC Facilities can locate the QIO responsible for their state here.

  • documenting all compliance efforts and designate a point person at each facility that is in charge of ensuring all of the requirements/recommendations are met on a weekly basis.

Copyright © 2022 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume X, Number 162

About this Author

Alissa Fleming, Womble Dickinson Law Firm, Charleston, Health Care Law Attorney

Alissa possesses first-hand knowledge of the healthcare industry as an attorney and registered nurse.  Her legal practice and medical background enable her to advise and represent national, regional and local healthcare providers on a broad and diverse spectrum of legal issues.

She has represented healthcare providers in health law and healthcare litigation throughout the duration of her career.  She regularly represents hospitals, long term care facilities, home health agencies, pharmacies, and professionals in healthcare litigation, regulatory...

Sandra Louise Weikel Miller Womble Bond Dickinson Healthcare lawyer

Sandy has helped clients through the heavily regulated and often confusing health law and healthcare litigation landscape for 25 years, and, before practicing law, she worked for more than a decade as a registered nurse, including serving as a Director of Nursing. She represents hospitals, home health agencies, hospitals, long term care facilities and other related health care providers. Sandy’s experience stretches across healthcare spectrum and she represents health care providers in a variety of health law related issues, including federal and state fraud and abuse compliance,...

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Catherine F. Wrenn Litigation lawyer Womble Bond Dickinson

Catherine litigates cases for businesses and health care providers, including physicians, hospitals, skilling nursing facilities, and assisted living facilities. Her practice includes advising clients on regulatory compliance and handling matters that involve Medicare fraud, wrongful death, personal injury, negligence, breach of contract, and breach of warranty. Catherine represents clients at all stages of litigation and she has significant trial and appellate experience.

Catherine has been recognized as a Rising Star by South Carolina Super Lawyers.

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