On August 17, 2020, the Centers for Medicare & Medicaid Services (CMS) announced that it is resuming routine inspections at health care providers, including nursing facilities, and that it has updated its enforcement guidance for nursing facilities. Despite CMS’s broad claims, the Center for Medicare Advocacy is concerned that CMS’s guidance may not result in the immediate restoration of comprehensive survey activity and may largely give a pass to facilities that have been cited with serious deficiencies during the pandemic.
Although CMS expands the types of surveys that states may conduct at nursing facilities from the priority list it identified in June, it says that state survey agencies should resume these additional surveys when they have the “staff and/or Personal Protective Equipment to do so.” While these precautions are understandable and appropriate (and the same qualifications that CMS has identified throughout the pandemic), the result may be that states will not, in fact, have the staff or PPE to resume routine surveys anytime soon.
Even more concerning, however, is CMS’s guidance on enforcement.
For surveys ending before June 1, facilities will be given 10 calendar days to submit a plan of correction. CMS’s new guidance allows survey agencies to clear all deficiencies that were cited before June 1 through an “expanded desk review policy” if facilities provide supporting evidence for the plan of correction and that evidence is verified by desk audit. The evidence “may include documentation containing dates of training, staff in attendance, and evidence that staff were evaluated for skill(s) competency. It may also include monitoring for policy implementation and successful performance by staff.”
Facilities’ plans of correction for quality of care deficiencies frequently identify training. Surveyors conduct revisits to determine that staff understood and consistently apply care practices that they were taught in a training program. Moreover, clearing deficiencies that reflect actual harm, immediate jeopardy (IJ), or substandard quality of care by desk audit is inconsistent with current surveyor guidance, which makes onsite revisits mandatory in these circumstances.
Recognizing that there may be concerns about clearing actual harm deficiencies or “remaining noncompliance following removal of IJ without an onsite revisit” through desk review, CMS writes that states may choose to “include the clinical area of concern cleared using the expanded desk review on the next onsite survey conducted.” The Center for Medicare Advocacy believes this suggestion to states should be a mandatory requirement; that is, CMS must require surveyors, at the next onsite survey, to review clinical areas that the state cleared through desk review in order to ensure that the facility actually corrected the deficiencies.
The new guidance also limits civil money penalties (CMPs) in ways that are inconsistent with current rules and guidance.
- If per day CMPs were imposed prior to March 23, the date when standard surveys were suspended, the CMPs will end on the date of substantial compliance (per a plan of correction that is verified by a desk audit) or on March 23, whichever is earlier. This provision means that CMPs could end on March 23, even if the facility asserts (and the desk audit confirms) that it came into substantial compliance at a later date.
- For enforcement cycles that began between March 23 and May 31, CMS will impose a per-instance CMP for “actual harm” deficiencies, although CMS’s own analytic tool may, in some instances, call for a per day CMP. The effect of this provision may be a smaller (per instance) CMP than warranted under prior CMS guidance.
- For enforcement cycles starting on or after June 1, CMS will start a per day CMP on the date the survey began, not earlier, even when the survey finds that noncompliance began before surveyors went on-site. This provision undermines the federal regulations, which allow a CMP to “start accruing as early as the date that the facility was first out of compliance.” 42 C.F.R. §488.440(a)(1).
- CMS reduces CMPs by 35%, even if a facility did not appeal the deficiency and CMP during the prioritization period (March 23-May 31, 2020). Current rules authorize a 35% reduction only if a facility informs CMS in writing that it will not appeal. 42 C.F.R. §488.436(b)(1). In July 2019, CMS proposed a “constructive waiver process,” which would authorize a 35% reduction in the CMP, even when a facility did not notify CMS that it was not appealing. Although those proposed rules have not been made final, CMS’s new guidance makes this particular proposal final “for CMPs that were imposed and became final” between March 23 and May 31.
CMS’s new guidance is intended to restart the survey and enforcement systems. The Center for Medicare Advocacy fully supports this plan. However, the extended desk reviews and limitations on Civil Monetary Penalties mean that serious care concerns that were cited by surveyors during the pandemic may be largely overlooked and not sanctioned. Nursing facilities should not get a pass.
Aug. 27, 2020 – T. Edelman
 CMS, “CMS Announces Resumption of Routine Inspections of All Provider and Suppliers, Issues Updated Enforcement Guidance to States, and Posts Toolkit to Assist Nursing Homes” (News Release, Aug. 17, 2020), https://www.cms.gov/newsroom/press-releases/cms-announces-resumption-routine-inspections-all-provider-and-suppliers-issues-updated-enforcement.
 These surveys were complaint investigations triaged as non-immediate jeopardy-high; revisits at facilities with removed immediate jeopardy, but still out of compliance; and Special Focus Facilities (SFFs) and SFF candidates. The new guidance adds: onsite revisits for surveys ending on or after June 1, 2020; complaint investigations triaged as non-immediate jeopardy medium; and annual recertification surveys.
 CMS, “Enforcement Cases Held during the Prioritization Period and Revised Survey Prioritization,” QSO-20-35-ALL (Aug. 17, 2020), https://www.cms.gov/files/document/qso-20-35-all.pdf.
 The federal regulations define substandard quality of care, at 42 C.F.R. §488.301, as one or more deficiencies cited at certain levels of scope and severity – specifically, certain residents’ rights (42 C.F.R. §§483.10(a)(1) through (a)(2), (b)(1) through (b)(2), (e) (except for (e)(2), (e)(7), and (e)(8)), and (f)(1) through (f)(3), (f)(5) through (f)(8), and (f)(i)); freedom from abuse, neglect, and exploitation; §483.12; quality of life; §483.24, quality of care, §483.25; behavioral health services, §483.40(b) and (d); pharmacy services §483.45(d), (e), and (f); administration,§483.70(p); and infection control,§483.80(d) – that are cited as immediate jeopardy (level J, K, or L) or pattern of or widespread actual harm (level H) or widespread potential for more than minimal harm (level F).
 The State Operations Manual, Chapter 7, §7317.2, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07pdf.pdf.
 CMS, “Revision of Civil Money Penalty (CMP) Policies and CMP Analytic Tool,” S&C: 17-347-NH (Jul. 7, 2017), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-37.pdf.
 84 Fed. Reg. 34737, 34751 (Jul. 18, 2019), amending 42 C.F.R. §488.436.