Focused Infection Control Surveys For Nursing Homes To Be Completed By July 31, 2020 — New Penalties For Identified Deficiencies

Fox Rothschild LLP

Fox Rothschild LLP

On June 1, 2020 CMS published QSO-20-31-All. It is effective immediately and provides in part as follows:

(1) States will need to perform focused infection control surveys (FICS) of 100% of the certified nursing homes in their State by July 31, 2020 or lose access to certain federal funding.

  • CMS and CDC are tracking the surveys done to date. Currently approximately 54% of the nation’s nursing homes have gone through a FICS. The state totals range from 11% surveyed (West Virginia) to 100% surveyed (Colorado, Nevada, North Dakota, Wyoming).

(2) States can submit a corrective action plan with a strategy of how they will complete FICS for all nursing homes within 30 days avoid reduction of access to federal funds.

(3) State must conduct FICS pursuant to the following specific timeframes after a report of actual or suspected COVID-19 cases in a nursing home:

  • By July 1, perform on-site surveys of nursing homes which have:
    • had cumulative positive COVID-19 cases equal to 10% of their bed capacity; or
    • had cumulative confirmed positive COVID-19 cases PLUS suspected COVID-19 cases at 20% of their bed capacity; or
    • had ten or more deaths reported due to COVID-19.
  • Within 3-5 business days of identification perform on-site surveys of any nursing home:
    • with 3 or more new COVID-19 suspected and confirmed cases within a week time period; or
    • 1 confirmed resident case in a facility that was previously COVID-free.
  • Beginning in FY 2021, perform annual FICS of 20% of nursing homes dependent on State’s discretion or additional data that identifies nursing homes and community risks.

(4) Specific penalties are to be imposed when there are identified infection control deficiencies. The penalties vary based on a nursing home’s past history and the severity of the deficiency.  Penalties/Enforcement remedies range from:

  • Directed Plan of Correction, Discretionary Denial of Payment for New Admission (DPNA) with 45 days to demonstrate compliance for nursing homes with no infection control deficiencies in the last year and a current level D or E deficiency, to
  • Directed Plan of Correction, Discretionary DPNA with 30 days to demonstrate compliance and at least a $20,000 per instance CMP, for nursing homes with 2 or more infection control deficiencies in the past year and a current Level F deficiency, to
  • Directed Plan of Correction with Discretionary DPNA with 15 days to demonstrate compliance and the imposition of the highest CMP permitted utilizing the CMP analytic tool for nursing homes with a current immediate jeopardy level (J, K, L)  deficiency.

(5) Starting In August 2020, State Survey Agency Priorities may be influenced by recommendations from the Coronavirus Commission for Safety and Quality in Nursing Homes.

(6) Quality Improvement Organizations are being deployed to provide technical assistance to 3,000 low performing nursing homes.

The guidance states that it will cease to be in effect when there is no longer a Public Health Emergency due to COVID-19. The guidance’s reference  to Focused Infection Control Surveys in FY 2021, indicates that CMS anticipates the Public Health Emergency continuing for many more months.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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