CMS Plans Increased Infection Control Surveys and Enforcement

On June 1^st, the Centers for Medicare and Medicaid Services (CMS) updated its guidance to State Survey Agencies (SAs) on survey activities and enhanced enforcement remedies related to infection control citations in memo QSO-20-31-All.

Based on nursing home data collected by the Centers for Disease Control and Prevention (CDC), CMS has raised concerns over infection control issues in nursing homes. According to CMS, data reviewed since the pandemic began indicate that additional immediate action is required to safeguard nursing home residents. SAs and CMS have completed Focused Infection Control surveys in 53 percent of the nation’s nursing homes. CMS is calling on states to ensure that all Medicare- and Medicaid-certified nursing homes receive this on-site, targeted review. SAs that fail to conduct infection control surveys of all nursing homes under their jurisdiction by specific dates will risk losing federal survey funding. The CMS memo also indicates that stricter enforcement remedies will be levied on facilities with infection control citations.

More specifically, SAs must complete Focused Infection Control surveys for all their nursing homes by July 31, 2020. States that are not able to survey 100 percent of nursing homes by that deadline must submit a corrective action plan to the CMS regional office outlining how they will complete all remaining infection control surveys within 30 days. Failure to complete all required surveys within the prescribed timeframes will result in a 10 percent reduction to the supplemental funding provided by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) (P.L. 116-136) to the SA. The CARES Act included approximately $80 million for SAs to support survey and certification efforts during the COVID-19 pandemic. In addition to completing the Focused Infection Control surveys of nursing homes, CMS is also requiring states to implement the following COVID-19 survey activities:

Perform on-site surveys (within 30 days of this memo) of nursing homes with previous COVID-19 outbreaks, defined as:
- Cumulative confirmed cases/bed capacity at 10 percent or greater; or
- Cumulative confirmed plus suspected cases/bed capacity at 20 percent or greater; or
- Ten or more deaths reported due to COVID-19.
Perform on-site surveys (within three to five days of identification) of any nursing home with three or more new COVID-19 suspected and confirmed cases since the last National Healthcare Safety Network (NHSN) COVID-19 report, or one confirmed resident case in a facility that was previously COVID-19-free. SAs are encouraged to communicate with their State Healthcare-Associated Infection coordinators prior to initiating these surveys.
Starting in Fiscal Year (FY) 2021, perform annual Focused Infection Control surveys of 20 percent of nursing homes 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 percent of their CARES Act Allocation, annually.

CMS is also ratcheting up enforcement remedies related to infection control deficiencies. Nursing homes can expect Directed Plans of Correction, Discretionary Denials of Payment for New Admissions, and per instance Civil Money Penalties (CMPs) for infection control deficiencies beginning at the D-level and above. Enforcement remedies will be determined based on the scope and severity of the infection control citation, as well as the facility’s history of non-compliance, and will be combined based on these factors. Per instance CMPs can be as high as $20,000 for a facility with a history of non-compliance in infection control and a current citation at Level F (widespread) or higher.

The CMS memo also discusses transitioning SAs to more routine oversight and survey activities. When a state has entered Phase 3 of the Nursing Home Reopening Guidance or earlier, at the state’s discretion, SAs are authorized to expand beyond the current survey prioritization (Immediate Jeopardy, Focused Infection Control, and Initial Certification surveys) to perform (for all provider and supplier types):

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 Disability (ICF/IID) recertification surveys that are greater than 15 months.

When determining the order in which to schedule more routine surveys, states are instructed to prioritize providers based on a history of non-compliance, or allegations of non-compliance, with the below items:

Abuse or neglect;
Infection control;
Violations of transfer or discharge requirements;
Insufficient staffing or competency; or
Other quality of care issues (e.g., falls, pressure ulcers).

According to CMS, Quality Improvement Organizations (QIOs) have been refocused to help nursing homes in combating COVID-19 through education and training, creating action plans based on infection control problem areas, and recommending steps to establish a strong infection control and surveillance program. IPRO, the QIO for New York State, offers a Coronavirus webpage with various resources and is holding a workshop on Thurs., June 4^th from 10:30 to 11 a.m. entitled “Current Best Practices for COVID-19 Management in Skilled Nursing Facilities.” Nursing homes may register for the event here.

Not specifically addressed in QSO-20-31-All, but likely to be closely evaluated as part of survey, are Emergency Preparedness plans. Nursing homes should review and update their emergency plans to reflect actions, policies, and procedures implemented as part of the COVID-19 pandemic. Members are also advised to complete an infection control self-assessment using the most updated infection control survey tool that CMS released on May 6^th in QSO-20-29-NH. Hand hygiene and appropriate use of personal protective equipment (PPE) are key areas that have led to infection control survey citations. Please consult CDC guidance on hand hygiene, donning and doffing PPE, and strategies to optimize PPE supplies. As previously noted, CMS is using data from the NHSN reporting system to identify nursing homes for survey, so refer to the NHSN site and ensure that your facility is reporting the COVID-19 data correctly.

Contact: Elliott Frost, efrost@leadingageny.org, 518-441-8761