Of Carrots and Sticks: CMS Seeks Change in Nursing Homes

On June 1, 2020, the Centers for Medicare and Medicaid Services (CMS) issued a memorandum to all State survey agency (SSA) directors announcing its “enhanced enforcement for infection control deficiencies” in nursing homes. (CMS Memorandum QSO-20-31-ALL.) In its new policy, CMS states that it is “expanding enforcement to improve accountability and sustained compliance with these crucial [infection control] practices.” The escalating enforcement actions correspond to the scope and severity of a deficiency cited during a survey.  (A “deficiency” is a violation of a specific federal regulation at 42 C.F.R. Part 483, which deals with the Requirements of Participation for nursing facilities participating in the Medicare and Medicaid programs.) CMS explains that the more “widespread” the deficiency, i.e., the greater the number of residents put at risk by the deficiency, the greater the enforcement actions. Deficiencies that cause “actual harm” or “immediate jeopardy” to one or more residents will trigger increased penalties (as compared to deficiencies that create a risk of harm but do not result in actual harm). Likewise, greater sanctions will be imposed on facilities that are repeat offenders—those facilities that have been cited for an infection control deficiency in the past.

The new policy is effective immediately. Even before CMS issued its new policy regarding “enhanced enforcement,” it had an array of arrows in its quiver for nursing facilities that were cited with a deficiency. For example, CMS had the statutory authority to impose a per day or a per instance civil money penalty (CMP), a denial of payment for new admissions, a directed plan of correction, a directed in-service, temporary management, and even termination from the Medicare program. CMS will now impose one of the five discrete groups of the “enhanced” sanctions outlined below when surveyors cite an infection control deficiency.

Infection Control Deficiencies Cited with No Actual Harm

When the infection control deficiency does not result in actual harm the “enhanced” sanctions—depending on the number of past infection control citations and whether the cited deficiency is “widespread”—are as follows:

Infection Control Deficiency – No Prior Infection Control Deficiencies Cited in the Last Year (or Last Standard Survey).

When the current deficiency is not widespread (meaning it is at an “isolated” or “pattern” level), only a Directed Plan of Correction will be required.

When the current deficiency is widespread, a Directed Plan of Correction will be required as well as a Discretionary Denial of Payment for New Admissions with 45 days to demonstrate that infection control deficiencies no longer exist.

Infection Control Deficiency – Infection Control Deficiencies Cited Once in the Last Year (or Last Standard Survey).

When the current deficiency is not widespread, a Directed Plan of Correction, a Discretionary Denial of Payment for New Admissions with 45 days to demonstrate that infection control deficiencies no longer exist, and a per instance CMP of up to $5,000 will be imposed.

When the current deficiency is widespread, a Directed Plan of Correction, a Discretionary Denial of Payment for New Admissions with 45 days to demonstrate that infection control deficiencies no longer exist, and a per instance CMP of up to $10,000 will be imposed.

Infection Control Deficiency – Infection Control Deficiencies Cited Twice in the Last Year (or Last Standard Survey).

When the current deficiency is not widespread, a Directed Plan of Correction, a Discretionary Denial of Payment for New Admissions with 30 days to demonstrate that infection control deficiencies no longer exist, and a per instance CMP of up to $15,000 may be imposed. A per day CMP  – in lieu of a per instance CMP – may be imposed, so long as the total CMP exceeds $15,000.

When the current deficiency is widespread, a Directed Plan of Correction, a Discretionary Denial of Payment for New Admissions with 30 days to demonstrate that infection control deficiencies no longer exist, and a per instance CMP of up to $20,000 will be imposed. A per day CMP – in lieu of a per instance CMP may be imposed, so long as the total CMP exceeds $20,000. Keep in mind that a widespread (an F-level) deficiency, by definition is a deficiency where there is the widespread “potential for more than minimal harm” but no actual harm or immediate jeopardy that is at a widespread level. Thus, a facility can be subjected to a $20,000 per instance or per day CMP even in the absence of harm to any resident.

Infection Control Deficiencies Cited with Actual Harm

When the infection control deficiency does result in actual harm the “enhanced” sanctions—depending on whether the harm rises to the level of “immediate jeopardy”—are as follows:

Infection Control Deficiency Cited at an “Actual Harm”But Not “Immediate Jeopardy”

When there is actual harm to a resident, regardless of whether the harm is isolated, pattern, or widespread, and regardless of the facility’s prior compliance history with infection control requirements, CMS will impose a Directed Plan of Correction, a Discretionary Denial of Payment for New Admissions with 30 days to demonstrate that infection control deficiencies no longer exist, and a CMP at the highest permissible level for non-immediate jeopardy level citations based on CMS’s CMP Analytic Tool.

Infection Control Deficiency Cited at an “Immediate Jeopardy” Level

When there is “immediate jeopardy” to one or more residents, regardless of prior compliance history, CMS will impose a Directed Plan of Correction, a Discretionary Denial of Payment for New Admissions with 15 days to demonstrate compliance with infection control regulations, and a CMP at the highest permissible level for immediate jeopardy citations based on the CMP Analytic Tool. More significantly, CMS may impose a Temporary Manager or a discretionary Termination. Consistent with prior statutory authority, CMS must terminate the facility’s Medicare provider agreement if the immediate jeopardy is not removed within 23 days.

While some may question the efficacy of the enhanced CMPs, facilities that have infection control deficiencies could potentially benefit from a Directed Plan of Correction. Speaking on behalf of AMDA – The Society for Post-Acute and Long-Term Care Medicine, Chris E. Laxton, CEA, AMDA’s Executive Director observed that, “These new measures appear to be more punitive than corrective. Sadly, it is not clear that they will provide additional protection to patients and residents; they may indeed result only in a significant misdirection of badly-needed resources away from patent care toward compliance with surveyor requirements.” Underscoring AMDA’s position is the fact that there has never been credible evidence that enhanced CMPs lead to better resident outcomes. Residents might be better served if facilities could use their funds to pay for supplies, additional staff and other resident-oriented items rather than paying CMPs, especially in cases where CMS imposes a CMP even when there is no harm to any resident. Facilities with legitimate infection control deficiencies should not have a “get out of jail” pass. However, the choice of an enforcement action should be based on what is likely to have the greatest positive impact rather than simply increasing a CMP.

Not mentioned in CMS’s memorandum outlining the new enhanced enforcement actions is a Directed In-Service, which CMS may impose based on any level of a deficiency. Arguably, Directed Plans of Correction and Directed In-service go much further than a CMP towards changing staff behaviors and helping to achieve and maintain substantial compliance.

Apart from the enhanced enforcement sanctions noted above, CMS has provided additional tools to help facilities face what has become their most serious challenge – preventing additional residents and staff from contracting COVID-19 with its devastating effects. In its Memorandum, CMS notes that it awarded contracts to a dozen community-based organizations that will act as Quality Improvement Organizations (QIO). The QIOs are available to provide specialized assistance to nursing homes. In addition to the resources available through the various QIOs, there are a host of free resources ranging from clinical guidance and training material geared at infection control and prevention provided by the Centers for Disease Control and Prevention (CDC), CMS, State and local health departments as well as organizations such as AMDA – The Society for Post-Acute and Long-Term Care Medicine, the American Health Care Association and LeadingAge.

COVID-19’s staggering impact on nursing home residents throughout the country cannot possibly be overstated. The CDC notes that as of June 5, 2020, nursing homes reported 95,515 confirmed cases of COVID-19 and 58,288 suspected cases. Tragically, those figures include 31,782 resident deaths. Additionally, more than 449 staff deaths were due to COVID-19. Sadly, those numbers continue to rise. Facilities must do everything possible to continue their heroic efforts at combating this scourge. In a perfect world, there would be no deficiencies related to infection control any longer. But, we don’t live in a perfect world and there will likely be occasional deficiencies regarding infection control in some of the 15,400 nursing homes in the U.S. One hopes that those deficiencies become fewer and fewer and that they do not cause any harm to residents or staff.

Facilities can continue to implement effective measures to have the best possible infection control and prevention programs such as the following: have a robust QAPI program; have designated individuals who are responsible for monitoring revisions to guidance from CDC, CMS, and state agencies; have sufficient amounts of PPE; have appropriate policies and procedures that are reviewed and revised as needed; provide appropriate staff education; seek the resources available from QIOs and other organizations that have developed educational and training programs; and obtain appropriate clinical and legal input in a proactive manner.

The many valuable resources and guidance (as well as certain waivers) provided by CMS are the carrots, and the enhanced enforcement actions are clearly the sticks. Perhaps, more carrots will result in fewer sticks.