Long-Term Care: More Changes to the Survey Process

The Centers for Medicare and Medicaid Services (CMS) continues to issue new guidance impacting long-term care providers as a result of COVID-19. Quarles & Brady’s Long-Term Care Practice Group recently reported on a shift in long-term care survey practices effective March 4, 2020, with a focus on surveys with immediate jeopardy complaints, allegations of abuse and neglect, and health and safety threats such as COVID-19. In just a few weeks’ time, CMS has further limited its survey scope, announcing a Prioritization of Survey Activities for a three (3) week period, beginning March 20, 2020. This Prioritization of Survey Activities supersedes the March 4, 2020 announcement. For this three (3) week period, CMS will focus on the following surveys only:

• Complaint/facility-reported incident surveys at the immediate jeopardy (IJ) level. However, regardless of the IJ allegation, CMS will utilize a streamlined infection control review tool, which is included in the CMS guidance document.
• Targeted infection control surveys. These surveys are being conducted in coordination with the Centers for Disease Control and Prevention (CDC) and the Department of Health and Human Services (HHS) Assistant Secretary for Preparedness and Response (ASPR) using the streamlined infection control review tool to minimize the impact on provider activities. Surveyors will perform targeted infection control surveys of those facilities most in need of additional oversight, as identified through the cross-agency collaboration. This focused infection control survey is available to all providers to make them aware of infection control priorities during this pandemic.

The infection control checklist noted above will also be shared with all providers and suppliers to allow for voluntary self-assessment of the facility’s infection control plan and protections. CMS notes that the ability for surveyors to perform surveys is dependent on the amount of personal protective equipment (PPE) and the fulfillment of any other state emergency response responsibilities, such as staffing testing stations. If surveyors are unable to meet the PPE requirements in accordance with recent CDC guidance, surveyors have been advised not to enter the facility and to obtain information remotely if possible. If a surveyor identifies an active COVID-19 case while at the facility, the surveyor is to report the case and the facility to their agency, the state health department, and the CMS Regional Office.

Standard surveys of long-term care facilities and any revisits that are not related to an IJ are not authorized during this three (3) week period. However, any initial certification surveys are still authorized to help increase health care capacity.

CMS states that this change in its approach will help protect patients from harm, give providers time to implement the most recent infection control recommendations, and ensure providers are implementing actions to prevent the spread of COVID-19.

CMS provides additional guidance in the Prioritization of Survey Activities memo addressing the impact of this directive on pending enforcement actions, including that any enforcement remedies will be suspended as of the start of this prioritization process, with the exception of any pending IJ actions. CMS also refers to its recommended visitor restrictions for nursing homes in its memo, which is discussed in more detail in our recent news alert.

Quarles and Brady’s Health Law Team continues to track updates impacting long-term care providers as a result of COVID-19. We expect additional guidance from CMS on its survey priorities after the end of this three-week period. For more information, please contact your Quarles & Brady attorney or:

• Randall R. Fearnow: (312) 715-5194 / randall.fearnow@quarles.com
• Jaya F. White: (312) 715-5242 / jaya.white@quarles.com