CMS Revises Survey Prioritization and Resumes Enforcement Activities

On August 17, 2020, the Centers for Medicare and Medicaid Services (CMS) issued a Guidance Memorandum (Guidance) setting forth revised state survey agency priorities as well as providing information regarding the resumption of enforcement activities and resolution of open enforcement cases.

The Guidance addresses these priorities and activities for three groups of providers: long-term care facilities, laboratories, and other providers.

Long Term Care Facilities

Surveys

On June 1, 2020, CMS revised its previously issued guidance regarding long term care surveys. At that time, CMS indicated that in addition to the survey priorities that were always in effect (Immediate Jeopardy, Focused Infection Control, and Initial Certification surveys), state survey agencies were authorized to begin conducting additional types of surveys in states that have entered Phase 3 of the reopening, or earlier at the state’s discretion. As of August 17, 2020, CMS added the following additional surveys to be conducted, subject to sufficient state resources:

  • Onsite revisits for surveys with end dates on or after June 1, 2020;
  • Complaint investigations that are identified as Non-Immediate Jeopardy- Medium; and
  • Annual recertification surveys required to be conducted within 15 months from a provider’s last recertification survey.

Enforcement

The Guidance addressed enforcement activities that are dependent on when the enforcement cycle was initiated.

  • For enforcement cycles that were started prior to March 23, 2020:
    • If the initial notice of remedies was sent prior to March 23, 2020 but was not finalized, any penalties will run through the date of substantial compliance per the accepted Plan of Correction (POC) or March 22, 2020, whichever is earlier. CMS will let facilities know the Civil Monetary Penalty (CMP) amount due and will proceed to collection.
    • If the initial notice of remedies was not sent prior to March 23, 2020, any penalties will run based on the start date of the CMP through the date of alleged compliance per the accepted Plan of Correction or March 22, 2020, whichever is earlier. CMS will let facilities know the CMP amount due and will proceed to collection.
  • For enforcement cycles that were started on March 23, 2020, through May 31, 2020:
    • All open surveys with deficiencies requiring a POC must have an acceptable POC:
      • For surveys that ended prior to June 1, 2020, if a POC has not been submitted, the state agency (SA) will contact the provider to request submission of a POC.
      • For surveys that end on or after June 1, 2020, the regular POC submission process will be followed.
    • The state surveyors can conduct a desk review for all citations except for an unremoved IJ, which requires a revisit survey. Providers must submit supporting evidence of compliance for the SA to conduct a desk review.
    • CMS will impose CMPs for cited deficiencies at the S/S level of G-L, but will not impose CMPs for any lower level cited deficiencies.
      • For deficiencies at the IJ-level, any CMPs that are imposed will accrue from the time the IJ existed until the time a revisit verified the removal.
      • For any actual harm, a per instance (PI) CMP will be imposed.
  • For enforcement cycles that started on or after June 1, 2020:
    • Routine enforcement processes will apply.
    • For CMPs, if the non-compliance started prior to the survey entrance or during the March 23, 2020 through May 31, 2020 time period, the CMP should be imposed starting with the date of the survey entrance.

For CMPs that became due and payable during the March 23, 2020 through May 31, 2020 time period but were not paid, CMS will issue a new due and payable notice and the provider will have 15 days from the date of the notice to make the payment. If the payment is not paid within that time, interest will begin to accrue from the due date, and CMS will notify the Administrative Contractor to offset future payments. For providers who were unable to notify CMS within the 60-day time frame to appeal during the March 23, 2020 through May 31, 2020 period that they were waiving their right to a hearing, CMS will reduce the CMP by 35%.

Laboratories

CMS is re-prioritizing CLIA on-site survey activities, subject to the SA’s discretion and within the state’s COVID-19 restrictions and safety precautions. SAs will begin conducting complaint surveys that require immediate corrective action, revisit surveys to resolve current enforcement activities, recertification surveys for laboratories whose certificates have been extended to August 31, 2020 and other providers with certificates expiring soon, initial certification surveys, and other complaints. However, SAs will not conduct validation surveys for accredited laboratories or Provider Performed Microscopy Project surveys.

Other Provider Types

Surveys

For non-long-term care providers, CMS is encouraging states to resume survey activities and to address the backlog of surveys. These surveys would be in addition to the ongoing focused infection control surveys utilizing the COVID-19 Focused Infection Control Survey: Acute and Continuing Care for as long as there is a Public Health Emergency. States that have entered Phase 3 of the reopening, or earlier at the state’s discretion, should resume normal survey activities, and should also prioritize the backlog of surveys in the following descending order of priority:

  • Revisit surveys for past noncompliance that do not qualify for a desk review.
  • Non-IJ or higher complaint surveys that have not been completed.
  • Special Purpose Renal Dialysis Facilities.
  • Initial surveys of new providers.
  • Past due recertification surveys with a statutorily required survey interval.
  • Past due recertification surveys without a statutorily required survey interval.

How these surveys affect acute care hospitals is discussed further in our blog post, Hospitals Be Ready: CMS Announces Return to Routine Surveys.

Enforcement

For all surveys that ended prior to June 1, 2020, CMS is requiring providers to submit a POC within 10 calendar days of the effective date of the Guidance. For surveys ending after June 1, 2020, providers will follow the usual survey submission process. The state surveyors can conduct a desk review for all citations except for an unremoved IJ, which requires a revisit survey. Providers must submit supporting evidence of compliance for the SA to conduct a desk review.

Providers should be aware that surveys are resuming and all open surveys will need to be resolved and closed in the near term, and the break that CMS had given for the imposition and payment of CMPs is now over.

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