CMS Issues New Guidance on Survey Prioritization

On Aug. 17^th, the Centers for Medicare and Medicaid Services (CMS) issued memorandum QSO-20-35-ALL revising previously issued guidelines allowing for the expansion of survey activities, clarifying the process of prior enforcement actions, and granting states the authority, in some circumstances, to determine compliance by desk review as opposed to an onsite revisit.

Expansion of Survey Activities

On June 1, 2020, CMS issued the QSO 20-31-All memorandum that provided survey reprioritization guidance to transition States to more routine oversight and survey activities. Specifically, once a State has entered Phase 3 of the Nursing Homes Reopening guidance, found in QSO 20-30-NH memorandum, or earlier, at the state’s discretion, States were authorized to expand beyond the current survey prioritization (Immediate Jeopardy, Focused Infection Control, and Initial Certification surveys) to perform the following surveys (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 Disabilities (ICF/IID) recertification surveys in facilities where it has been over 15 months since the last standard survey.

CMS is now revising this guidance to authorize additional onsite surveys. In addition to the surveys listed above, States should resume performing the following surveys as soon as they have the resources (e.g., staff and/or Personal Protective Equipment) to do so:

Onsite revisits as specified in the revisit policy in the State Operations Manual (SOM), Chapter 7, Section 7317.2, for surveys with end dates on, or after June 1, 2020;
Complaint investigations that are triaged as Non-Immediate Jeopardy Medium; and
Annual recertification surveys required to be conducted within 15 months from a provider’s last recertification survey.

Enforcement Guidance

When the QSO 20-20-All memorandum went into effect, CMS locations were directed to suspend enforcement actions, with the exception of unremoved IJs. Because survey resources were focused on those activities related directly to the COVID-19 pandemic and immediate threats to patient/resident health and safety, other surveys, including revisits for compliance necessary to end an ongoing enforcement cycle, were suspended. This included stopping the accrual of Denial of Payment for New Admissions (DPNAs) and per day (PD) CMPs.

CMS intends to resolve those enforcement cases that were suspended and provide guidance for closing them out, going forward from the issuance of this memorandum. This process involves four components:

Expanding the Desk Review policy for Plans of Corrections (POCs);
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.

Expanded Desk Review Policy

Under the QSO 20-20-All memorandum, beginning on March 23, 2020, enforcement cases were held, and providers were permitted to delay the submission of a POC until the survey prioritization period ended. Although QSO-20-31-ALL permitted states to exercise discretion in expanding beyond the current survey prioritization, CMS is now advising states to follow the guidance below to resolve enforcement cases that were started from March 23, 2020 (QSO20-20) to May 31, 2020:

All open surveys with cited deficiency tags must have an acceptable POC and supporting evidence in order for the tags to be corrected (unless a POC 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 POC, the state survey agency (SA) will contact them requesting submission of a POC;
Providers will have 10 calendar days to submit their POC for surveys that ended prior to June 1, 2020. POCs for surveys that will end on or after June 1, 2020, will follow the normal POC submission process.

NOTE: Providers who may have difficulty allocating resources, such as staff, materials, or funding to develop and implement a POC because they are currently experiencing an outbreak of COVID-19, as defined in QSO 20-31-All, should contact their SA and/or CMS location to request an extension on submitting a POC.

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. The only exception to the expanded offsite review policy is for any unremoved IJs, which still require an onsite revisit. This expanded desk review policy applies only to outstanding enforcement actions that were held, per QSO 20-20-All memorandum, from March 23, 2020, through May 31, 2020.
Beginning June 1, 2020, all onsite revisits are authorized and should resume, as appropriate, per SOM, Chapter 7, Section 7317.2.

SAs must request facilities to submit evidence that supports correction of noncompliance so that a desk review can be performed based on the latest compliance date on the POC. NOTE: A desk review cannot be completed without supporting evidence from the facility. This evidence may include documentation containing dates of training, staff in attendance, and evidence that staff were evaluated for skill(s) competency. It may also include monitoring for policy implementation and successful performance by staff.

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