The President's declaration of a national emergency gave the Secretary of the Department of Health and Human Services the ability to authorize waivers or modifications of certain requirements of Section 1135 of the Social Security Act. Pursuant to this authority on March 23, 2020, the Centers for Medicare & Medicaid Services (CMS) issued a Prioritization of Survey Activities setting forth modified procedures for health care provider surveys. The March 23, 2020 transmittal supersedes the March 4, 2020 guidance that was discussed in our prior alert.

Survey Priority

The CMS survey guidance directs that for three weeks starting March 20, 2020 (prioritization period), only the following surveys will occur:

• Complaint and facility-reported incident surveys that may trigger any possible immediate jeopardy (IJ) related deficiencies.
• Targeted infection control surveys identified through collaboration with the Centers for Disease Control and Prevention (CDC) and HHS Assistant Secretary for Preparedness and Response (ASPR).
• Any revisits necessary to resolve pending IJ deficiencies.
• Initial certification surveys authorized in accordance with current guidance and prioritization.

Pursuant to the CMS order, the following surveys should NOT occur between now and April 10, 2020:

• Standard surveys for long-term care facilities, hospitals, home health agencies (HHAs), intermediate care facilities for individuals with intellectual disabilities and hospices.
• Revisit surveys that are not associated with an immediate jeopardy finding.

Conducting Surveys

CMS has provided specific instructions to surveyors related to the completion of surveys during this prioritization period including the following items:

• Personal Protective Equipment (PPE) required

Surveyors have been instructed to utilize PPE in accordance with CDC expectations before entering the health care provider site.

If PPE is not available information should be obtained remotely to the extent possible and the survey should continue once necessary PPE is obtained.

• Immediate Jeopardy Initial Surveys
  • Follow the normal process: conduct on-site survey within 2 business days of receipt of the allegation.
• Immediate Jeopardy Revisit Surveys
  • If continuing noncompliance but not at the IJ level, plan of correction (POC) can be completed but another revisit will not occur during the prioritization period.  The provider can also choose to delay the submission of a POC.
  • If continued IJ deficiency identified, continue with normal process for such situations.
• Targeted Infection Control Surveys
  • Will be conducted in areas deemed necessary by CDC and ASPR
  • Revisits will occur for identified IJ level violations only

Guidance for Providers Preparing for Infection Control Surveys

• For Nursing Homes:
  • Facilities should review provided infection control survey outline to identify the latest CMS expectations.
  • CMS expects facilities to perform voluntary self-assessments using guidance provided to determine their ability to prevent the transmission of COVID-19.
  • Surveyors may request a copy of the self-assessment document during an on-site survey.
  • Nursing Homes are requested to notify health departments about residents with severe respiratory infections or if there is a cluster of respiratory illness.
• For Other Providers
  • Consider closing common visiting areas.
  • Limited entry points for visitors and limited movements.
  • Screening of visitors and patients.
  • For HHAs family members should be educated, equipment should be cleaned, infection control procedures followed.
  • Signage should be placed on rooms where COVID-19 is present.

Specific COVID-19 Infection Control Assessments

Guidance is provided to providers regarding specific self-assessments that are expected to be completed related to COVID-19 Infection Control. The assessment considerations are similar to the general infection control requirements but are tailored to respond to COVID-19 risks and responses.

• Standard Precautions being taken:  Hand hygiene, transmission-based precautions
• Visitor restriction and screening
• Infection Prevention and Control Program and surveillance specific to COVID-19.
• Resident/patient care and placement
• Educating, monitoring and screening of staff
• Staffing in emergency situations (not included as a “checklist” tool but noted on the summary page under facility self-assessment).
• Use of PPE/action steps taken to obtain PPE
  • Recognizing that there may be a shortage of PPE, providers will not be cited for failing to have these items available if they can document that lack of supplies is outside of their control and they have taken steps to mitigate the resource shortage and obtain necessary supplies as soon as possible.  The guidance specifically notes that providers should have documentation that they reached out to their healthcare coalition for assistance and have considered extending or reusing PPE in accordance with national and or local guidelines. See our prior alert summarizing the most recent guidance from CDC on utilizing PPE.

Enforcement Actions

The suspension of revisit surveys could leave providers experiencing or facing enforcement actions such as Denial of Payment for New Admissions (DPNA), accruing civil monetary penalties (CMPs) or termination of provider agreements with no options for relief. Recognizing this concern, certain statutorily imposed enforcement actions are also being suspended during the prioritization period. Specifically:

For health care providers with no IJ findings, the following enforcement actions are suspended:

• For nursing homes: Imposition of Denial of Payment for New Admissions, lifted as of March 20, 2020
• For HHAs: Imposition of suspension of payment for new admissions suspended as of March 20, 2020
• For nursing homes and HHAs:  (a) suspend per day civil money penalties (CMP) as of March 20, 2020; (b) suspend imposition of termination from the program for facilities/providers that are not back in substantial compliance at 6 months.

Enforcement actions applicable to IJ deficiencies will remain in place, CMPs will continue to run, 23-day termination will occur unless IJ is removed.

CMS plans to issue guidance in the next few weeks on how to handle the enforcement actions that need to be reinstated when the prioritization period expires.