COVID-19 LMB Nursing Home Enforcement (June 2020)

by Jun 18, 2020

The Health Ethics Trust is pleased to continue its series of briefings addressing compliance issues related to the COVID-19 crisis. We thought it would be useful to set out some of the recent guidance provided by OIG, CMS, OCR, and the CDC, among others, to assist you in navigating the laws, rules and regulations with which your organizations have to comply. These guidance documents are not meant to cover every issue or all guidance involving a particular organization type, but may serve as a helpful starting point for the compliance issues related to COVID-19. These guidance documents are prepared with the support of Lynn Barrett, Esq., CHC, CCP, a private practice attorney and former CCO who speaks at many Trust programs and is active in Compliance Resource Group, Inc. This guidance applies to Nursing Homes and infection control issues. Read the Nursing Home guidance at https://healthethicstrust.com/category/covid-19/

Nursing Homes Face Enhanced Enforcement Actions in Connection with Infection Control

There is little doubt that nursing home residents and staff have been disproportionately affected by the COVID-19 pandemic. Recent statistics released by CMS reveal that, as of May 24, 2020, over 25,000 nursing home residents and 400 staff have died from, and 60,000 residents and 34,000 staff have been infected by, the coronavirus. This data was compiled from the number of COVID-19 cases that nursing homes have been required to report via the CDC’s National Health Safety Network (NHSN) since the beginning of May. These statistics, however, represent only 80% of the country’s 15,400 Medicare and Medicaid nursing homes that reported data. One week later, as of May 31, 2020, an additional 8.5% of nursing homes had reported COVID-19 cases as required. These additional reports, together with the original reports, show that there were 95,515 cases of nursing home residents infected by COVID-19, with 31,782 resident deaths. (CMS has indicated that it will take enforcement action against nursing homes which have not reported data to the CDC.)

According to the Washington Post (Post – Cenziper, D., Whoriskey, P., & Jacobs, J., More Than 25,000 Nursing Home Residents and 400 Staff Have Died During Pandemic, Federal Report Shows, Wash.Post (June 1, 2020).) the reason for these infections and deaths differs depending on who one talks to. The nursing home industry, according to the Post, points to the location and size of the nursing home as being correlated with the number of nursing home infections and deaths. This analysis indicates that a high rate of infections and deaths in nursing homes’ surrounding community is directly linked to a high rate of infections and deaths in nursing homes themselves. CMS’s analysis, on the other hand, indicates that higher rates of nursing home infections and deaths are linked to nursing homes that have been surveyed and received poor results in infection control categories. CMS found that, at least initially, nursing homes with one star quality ratings were more likely to have large numbers of COVID-19 cases than facilities with five star ratings.

With this in mind, CMS announced at the beginning of June that it has increased enforcement penalties for nursing homes that are not following federal safety requirements. Specifically, CMS has increased civil monetary penalties for nursing homes with persistent infection control violations from between $1,000 – $10,000 to between $10,000 – $20,000. For example, if a nursing home is surveyed and found to be non-compliant for an infection control deficiency and had one such deficiency in the last year (or last standard survey), the nursing home could face up to $10,000 per deficiency. If, however, the nursing home is found to be non-compliant and had two or more citations in the last two years, the nursing home could face up to $20,000 per deficiency.

CMS has also begun posting nursing homes’ reported NHSN data on the Nursing Home Compare home page in the “Spotlight” section. The data includes each facility’s name, its reported number of confirmed and suspected COVID-19 cases of residents and staff, the number of resident deaths related to COVID-19, the availability of personal protective equipment, and COVID-19 testing and potential staffing shortages. The data will be available to the general public and will be updated once every seven calendar days.

In addition, states have been required to quickly perform on-site infection control surveys of all nursing homes. All such surveys must be completed by July 31, 2020. As of June 1, 2020 only approximately 54% of states had completed their infection control surveys. Accordingly, if any state fails to complete all nursing home surveys by the deadline, the state must provide a corrective action plan within 30 days. If after the 30 day period a state has still not complied, CMS may reduce the funding the state would otherwise receive under the CARES Act for FY2021 by up to 10%. For subsequent 30-day periods where nursing home surveys have not been completed by the state, such state may face additional reductions of up to 5%. The funds withheld from any state would then be redistributed to the states that had completed 100% of their infection control surveys by July 31.

Further, once a state has entered Phase 3 of the nursing home re-opening, which re-opening information was published by CMS on May 18, 2020, it may expand its surveys beyond CMS’s current survey prioritization, which are Immediate Jeopardy, Focused Infection Control and Initial Certification surveys. This means that a state would be able to perform surveys, for example, in connection with complaints that are categorized as Non-Immediate Jeopardy-High or in connection with revisit surveys where a nursing Immediate Jeopardy tags have been removed but it is still out of compliance.

Finally, CMS is sending Quality Improvement Organizations (QIOs) to provide nursing homes with technical assistance on infection control issues. The QIOs will focus on approximately 3,000 low performing nursing homes with a history of infection control problems. The QIOs will not only help nursing homes identify their greatest areas of infection control problems, but will also help them create corrective action plans and implement steps to create a strong infection control and surveillance program.

In light of the foregoing, nursing homes should consider taking advantage of existing resources in proactively addressing – and continuing to address – infection control issues. For example, CMS has issued at least 13 guidance documents relating to infection control issues and has hosted weekly calls with nursing homes to discuss infection control best practices. Weekly National Infection Control Trainings are also being conducted, which are designed to help nursing homes prevent the transmission of COVID-19 and keep residents safe. QIOs are available to provide education and training to nursing homes, in some cases on-site, as noted above. Finally, nursing homes can utilize toolkits released by CMS, the CDC and other organizations to assist them in their efforts to address infection control issues, including the toolkit released by CMS which it recommended be used by nursing homes (and others) to perform self-assessments to identify opportunities for improvement.

There are a number of additional considerations for nursing homes and other long-term care facilities relating to COVID-19, which we will continue to share with you. In the meantime, please do not hesitate to contact us should you have any questions or if you need assistance to help ensure your facilities maintain compliance with the ever-changing laws, rules, regulations related to COVID-19. We can be reached at 703-683-7916 or info@healthethicstrust.com

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