CMS Suspends Surveys for Long-Term Care Providers, Issues COVID-19 Protocols

Long-term care providers continue to be heavily impacted by the effects of COVID-19. In response to the COVID-19 pandemic, the Centers for Medicare & Medicaid Services (CMS) announced in a memo on March 4, 2020 that it had suspended non-emergency inspections of skilled nursing facilities across the country, allowing surveyors to focus on the most serious health and safety threats like infectious diseases, such as COVID-19, and resident neglect and abuse. Non-emergency surveys will be suspended.

Effective March 4, 2020, CMS survey activity was limited to the following, in priority order: 

1. Immediate jeopardy complaints and allegations of abuse and neglect.
2. Complaint surveys alleging infection control concerns. This would include facilities with potential COVID-19 infections.
3. Statutorily required recertification surveys.
4. Any re-visits necessary to resolve current enforcement actions.
5. Initial certifications.
6. Surveys of facilities that have a history of infection control deficiencies at the immediate jeopardy level in the last three years.
7. Surveys of facilities that have a history of infection control deficiencies at lower levels than immediate jeopardy.

CMS also issued protocols for coordination and investigation of facilities with actual or suspected COVID-19 cases.

Under the protocols, State Survey Agencies and accrediting organizations should do the following when a COVID-19 case is confirmed or presumed in a Medicare/Medicaid enrolled facility:

1. Notify the CMS Regional Office of the facility and date of resident’s presumptive or confirmed COVID-19 status.
2. Work with the CMS Regional Office to coordinate any Federal complaint or recertification survey of the impacted facility until the Centers for Disease Control and Prevention (CDC)—and any other relevant federal/state/local response agencies—have cleared the facility for survey. For example, CMS Regional Offices will authorize surveys in reported conditions at the facility rise to the level of an immediate jeopardy status or there are infection control concerns. If it does not rise to these levels, then a desk audit will be performed.
3. Ensure surveyors have all necessary Personal Protective Equipment (PPE) appropriate to observe resident care in close quarters. If the resident is confirmed or presumed to have COVID-19, the surveyors should refer to the CDC’s “Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings.”
4. Suspend any federal enforcement action for any deficiencies identified until reviewed and approved by the CMS Regional Office to ensure consistent and appropriate action.

The guidance indicates that surveyors are to complete much of the survey off-site. Surveyors are to plan for the survey, collect records (if possible), and conduct any interviews other than those concurrent with observations. CMS does caution that any needed resident interviews should be conducted on-site due to possible challenges if the surveyor follows up by phone, such as the resident not being able to respond to the questions via telephone or that the resident has been discharged from the facility. CMS advises that, absent extenuating circumstances, surveys should be completed on-site within two (2) days.

COVID-19 continues to have significant impacts on the long-term care sector, and we anticipate more updates from CMS and to the facility survey process as a result of COVID-19. For example, as of March 17, 2020, the Joint Commission on Accreditation announced that it has suspended all survey activity until May 1, 2020. We expect that state survey agencies are likely to follow CMS’ lead.

Quarles & Brady's Health Law Team is continuously monitoring the ever-changing landscape of the COVID-19 pandemic. 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