In connection with the COVID-19 Public Health Emergency, the Centers for Medicare and Medicaid Services (CMS) are incentivizing states to complete Focused Infection Control surveys for nursing homes by initiating a performance-based funding requirement which ties the completion of the surveys to the states’ eligibility for grants under the Coronavirus Aid, Relief and Economic Security (CARES) Act. In a memorandum to state agencies, dated June 1, 2020, CMS directed states to complete 100 percent of all such surveys of nursing facilities by July 31, 2020, or file a corrective action plan. States that file a plan of correction with CMS and subsequently fail to complete 100 percent of the nursing home surveys within 30 days will face a reduction of up to 10 percent in their CARES Act funding. Subsequent failures to achieve this goal will result in additional reductions in CARES Act funding. The forfeited funds will be redistributed to other states that have reached compliance and apply to receive the additional funds.
CMS is also directing that states perform certain additional surveys which are as follows:
- An on-site survey by July 1st of all facilities with previous COVID-19 outbreaks;
- An on-site survey within 3 – 5 days of identification of any facility with 3 or more new suspected or confirmed cases since the last National Healthcare Safety Network (NHSV) report or 1 confirmed case in a facility that was previously COVID-19 free.
The failure to conduct any of these surveys may also result in a 5 percent reduction in CARES Act funding.
Keeping the spotlight on Infection Control, CMS additionally announced enhanced penalties for substantial non-compliance across the range of deficiency level findings. For example, for a current Infection Control deficiency finding:
- When a facility was previously cited once in the last year (or last standard survey):
- If not widespread (Level D & E), in addition to imposing a Directed Plan of Correction and denial of payment for new admissions, the State or CMS in their discretion may impose Civil Monetary Penalties (CMP) up to $5000 per instance.
- If the deficiency is widespread (Level F), the State or CMS may impose a CMP of $10,000 per instance.
- At the Immediate Jeopardy level (Level J, K, L) regardless of past history, states are directed, among other things, to select the highest CMP amount option within the appropriate Immediate Jeopardy range in the CMP analytic tool.
Upon reaching Phase 3 of the CMS Nursing Home Reopening Recommendations (see CMS memo dated May 18, 2020 available here: https://www.cms.gov/files/document/qso-20-30-nh.pdf-0), or earlier, states are also instructed to expand current survey activity beyond Immediate Jeopardy, Focused Infection Control, and Initial Certification surveys to include: complaint investigations triaged as Non-Immediate Jeopardy-High; revisiting facilities with Immediate Jeopardy findings removed that are still out of compliance; and “special focus” facilities.
Lastly, CMS notes that Quality Improvement Organizations (QIOs) are being deployed to provide technical assistance to nursing homes that have a history of infection control challenges. States are also encouraged to request QIO technical assistance specifically targeted to nursing homes that have experienced a COVID-19 outbreak.
Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at [email protected].