CMS Announces Resumption of Routine Surveys

Regulation | August 18, 2020 | by Jodi Eyigor

CMS has announced the expansion of survey activity, including the resumption of standard recertification surveys, and has issued guidance around enforcement activity.

Continuing efforts to reintegrate survey activity, CMS announced further expansion of survey activity and guidance around enforcement activity on a press release and policy memo on August 17. This expansion follows previous guidance released on June 1 and is a departure from the plan for nursing homes first introduced in the Reopening Recommendations released on May 18.

Effective immediately, this survey expansion applies to all provider types including nursing homes, home health, and hospice providers. The information that follows below is specific to nursing homes. For information regarding survey and enforcement activities for non-long-term care, please refer to QSO-20-35-ALL.

Including the survey activity previously outlined on June 1, state survey agencies will conduct the following activities:

  • Complaint investigations triaged as immediate jeopardy (IJ), non-IJ-high, and non-IJ-medium (new),
  • All onsite revisit surveys as specified in the State Operations Manual, Chapter 7,
  • All annual recertification surveys,
  • Special Focus Facility (SFF) and SFF candidate surveys.

This directive for the expansion of survey activity is to be begin as soon as feasible, meaning as soon as the state survey agencies have appropriate staffing and personal protective equipment (PPE). 

When survey activity was suspended in March, this also included the suspension of pending enforcement activity (with the exception of unremoved IJs) such as the accrual of Denials of Payment for New Admissions (DPNAs) and per day Civil Monetary Penalties (CMPs). Providers pending enforcement were also permitted to delay submission of their Plans of Correction. All providers must now submit Plans of Correction and this new guidance from CMS outlines how states and regions should resolve suspended enforcement actions.

First, CMS has expanded authority for desk reviews of Plans of Correction. The state survey agency will contact providers who have not submitted a Plan of Correction. Plans of Correction for citations issued between March 23 and May 31 must be submitted within 10 calendar days. Desk reviews will now be permitted for all citations except for IJ citations that have not been verified as removed or corrected to a lower level of noncompliance. An onsite revisit will still be required for these citations. Additionally, state survey agencies will be permitted to add to the next on-site survey any clinical areas of concern for which a citation was previously cleared through the expanded desk review process. For citations issued after June 1, Plans of Correction must follow normal timelines and on-site revisits are authorized according to Chapter 7 of the State Operations Manual.

For enforcement remedies that were imposed prior to March 23:

  • If the provider was given notice of the enforcement remedy (DPNA or CMP) prior to March 23, the remedy will accrue from the date of notice through March 22 or the date of substantial compliance per an accepted Plan of Correction, whichever is earlier. CMS will inform nursing homes of the amount and proceed to collection.
  • If the provider was not given notice of the enforcement remedy prior to March 23, remedies must be imposed according to the Immediate Imposition of Remedies and will accrue from the start date of the CMP and continue through March 22 or the date of substantial compliance per an accepted Plan of Correction, whichever is earlier. CMS will then proceed to collection of the CMP. The Immediate Imposition of Remedies does not allow for the retroactive enforcement of a DPNA.

For enforcement cycles during the prioritization period March 23 – May 31, CMPs will be issued for citations at G-level and higher. IJ citations will receive a per day CMP that accrues from the date the IJ existed until the IJ was verified to be removed by on-site visit. For actual harm citations, a per instance CMP will be imposed.

For enforcement cycles beginning after June 1, enforcement processes will follow the State Operations Manual; however, for per day CMPs when noncompliance began during the survey prioritization period, the per day CMP will accrue effective the date of survey entrance.

For CMPs that were due during the prioritization period (March 23 – May 31), CMS will re-issued the CMP Due and Payable notice with a collection date of 15 days after the notice. The 35% reduction of CMP will be applied for providers who did not file an appeal.

What This Means for Providers

Survey activity will resume, despite few if any providers being in phase 3 of reopening. Note that infection control surveys will continue and it is likely that we will also see more strike team visits on top of this resumed survey activity.

Plans of Correction must be submitted and nursing homes must prepare to resolve pending enforcement remedies. CMS notes that any provider who may have difficulty allocating resources to develop and implement a Plan of Correction, including staff, materials, or funding, due to a current outbreak of COVID-19 should contact the state survey agency and/or CMS regional office to request an extension on submitting a Plan of Correction.