On August 17, 2020, CMS encouraged State Survey Agencies to resume some of their normal enforcement activities.
Maintaining a Medicare provider agreement is paramount for acute care hospitals, and that process includes unannounced surveys by the State Agency on behalf of the Centers for Medicare and Medicaid Services (CMS). On March 4, 2020, however, due to COVID-19, CMS announced it was limiting survey activity based on priority, and on March 23, 2020, CMS further limited surveys to focus on infection control, complaints and immediate jeopardy. At that time, CMS also suspended open enforcement actions except for actions involving unremoved immediate jeopardy.
On August 17, 2020, CMS sent a letter to State Survey Agency Directors (Guidance) that, among other things, encourages States to resume normal survey activities for “non-long-term care” providers, including acute care hospitals (the Guidance also includes information about resuming certain survey activities for long-term care facilities and laboratories, as discussed in our Alert, CMS Revises Survey Prioritization And Resumes Enforcement Activities). In the Guidance, CMS asks State Agencies to resume these activities once the State enters Phase 3 of reopening based on White House Guidance for State/Regional Reopening or earlier at the State's discretion. The Guidance also encourages State Agencies to address the backlog of surveys that had been postponed per CMS' prior direction on March 23, 2020.
In the Guidance, CMS indicates that States should prioritize survey backlog for non-long-term-care providers in the following order: (1) revisit surveys for past non-compliance that do not qualify for desk review; (2) complaint surveys triaged as non-immediate jeopardy or higher; (3) special purpose renal dialysis facilities; (4) initial surveys of new providers; (5) past-due recertification surveys with a statutorily required survey interval; and (6) past-due recertification surveys without a statutorily required survey interval. In addition, CMS instructs surveyors to continue using the COVID-19 Focused Infection Control Survey as part of surveys conducted during the COVID-19 public health emergency. CMS does not address timing for resuming validation surveys, and will issue further guidance on the topic at a later date.
CMS is also expanding its desk review policy for Plans of Correction (POC) to help resolve enforcement actions that were suspended on March 23, 2020. As part of suspending enforcement, non-long-term care providers had been permitted to delay submission of Plans of Correction (POC). Providers now have 10 calendar days to submit their POCs for surveys that ended prior to June 1, 2020; while POCs for surveys ending on or after June 1, 2020, follow the normal POC submission process. Desk reviews may now be performed for any level of non-compliance except for unremoved immediate jeopardies.
In order for a desk review to be performed, State Agencies will request that providers submit evidence that they are in compliance. CMS provides examples of such evidence in the Guidance, including dates of training, staff in attendance, and verification of skills competency, as well as monitoring and successful performance by staff. Evidence for hospitals might also include updated policies and procedures, Board resolutions, or evidence of individual counseling to the extent appropriate to show that corrections have been completed. State Agencies have the discretion to include clinical areas cleared through desk review in the next onsite survey. Finally, CMS states providers experiencing difficulty preparing or implementing a POC due to a COVID-19 outbreak may request an extension from the State Agency or CMS.
As a result of the Guidance, hospitals should take note of where they may be in a survey or enforcement cycle, and be ready for any surveys that were postponed when normal survey activities resume. To the extent a hospital delayed submission of a POC while enforcement was suspended, the hospital should be mindful of updated submission deadlines. Finally, hospitals in areas with high COVID-19 activity should be proactive in requesting an extension from the State Agency or CMS if needed.