Search Our Website:

Brian Rath, Counsel in the firm's Healthcare section, authored an article for Bloomberg Law entitled, "Nursing Homes Face Enhanced CMS Scrutiny of Covid-19 Infection Control."

Nursing homes regulation was turned upside down in 2020 due to the Covid-19 pandemic. As 2021 dawns, CMS has clarified and refined its survey guidance, but the bottom line remains the same—facilities’ infection control policies and procedures will continue to be subject to strict scrutiny.

Take, for example a nursing home whose failure to comply with Centers for Medicare & Medicaid Services (CMS) Covid-19 guidelines resulted in severe penalties.

In October 2020, a nursing home in New Jersey (name withheld), a facility with a history of substantial compliance, received its first inspection since the state resumed recertification surveys.

In this survey, the New Jersey facility received an "E" level infection control deficiency alleging four staff members, while outside of resident areas, had removed the bottom strap of their N95 masks. When questioned, two of the staff members said they removed the bottom strap because "it was easier to breathe" and "the bottom strap hurt."

Although scope and severity are not challengeable in informal dispute resolution (IDR), and technically, these individuals were wearing their masks improperly, the facility debated contesting the deficiency for two reasons.

First, the facility felt the surveyors did not recognize the impact of Covid-19 on staff and the minimal risk of the removal of one mask strap in non-resident areas. Second, and more importantly, although the deficiency was relatively minor, with no civil monetary penalty (CMP), the impact of an "E" level infection control deficiency on future surveys is significant.

Pursuant to a June 1, 2020, CMS memo (CMS memo), because staff members removed their masks’ bottom strap, the New Jersey facility is now subject to enhanced enforcement remedies on subsequent surveys.

Indeed, another "E" level infection control deficiency—or even a lesser "D" level deficiency—within the next year, will subject the facility to a directed plan of correction, possible denial of payment for new admissions and per instance CMPs up to $500. An "F" level infection control deficiency will increase the per instance civil penalties to $10,000.

Continued Scrutiny of Infection Control

As 2021 begins, states are resuming their standard recertification processes alongside the focused infection control (FIC) surveys conducted throughout this pandemic.

Facilities can expect continued scrutiny of infection control, both in recertification and FIC surveys. As a result, on Jan. 4, CMS issued a revised memo (revised CMS memo) to clarify the FIC and standard recertification survey processes during Covid-19.

The initial CMS memo requires states to conduct FIC surveys of 20% of its nursing homes annually. As states increase standard recertification surveys, the revised memo clarifies that, while all FIC tools are incorporated into the recertification survey process, states cannot use the standard surveys to count toward the 20% requirement. Thus, facilities will be subject to both standard surveys and possible FIC surveys. However, the revised memo changes the triggers for an FIC survey.

Initially, an FIC survey was to be conducted within three to five days of identification of (1) three or more new Covid-19 cases in a week; or (2) one new resident Covid-19 case in a previously Covid-19-free facility.

Per the revised memo, an FIC survey is required if trigger (1) or (2) is present and there is an identified other factor that may place residents’ health and safety at risk including:

  • Multiple weeks with new Covid-19 cases;
  • Low staffing;
  • Selection as a special focus facility;
  • Concerns related to conducting outbreak testing per CMS requirements; or
  • Allegations or complaints that pose a risk for harm or immediate jeopardy to the health or safety of residents which are related to certain areas, such as abuse or quality of care (e.g., pressure ulcers, weight loss, depression, decline in functioning)

Now, a facility must meet one of the original criteria and one of the "other factors" to trigger an FIC survey. Fortunately, an FIC survey will not occur at a facility subjected to an FIC or recertification survey within the previous three weeks.

The revised CMS memo also adds a requirement that FIC surveyors should be alert to residents who have had a significant decline in their condition, which may lead to expanded surveys.

The provisions of the CMS memo and its revision apply during the declared Covid-19 federal public health emergency renewed as of Jan. 21. So long as the emergency exists, facilities will be subject to scrutiny of their infection control practices in standard and FIC surveys.

Even after the emergency ends, the infection control practices of nursing homes will remain closely watched in every survey and some level of the Covid-19 scrutiny and enhanced penalties will continue.

Facilities Should Protect Themselves from Enhanced Penalties

Considering CMS’ survey focus resulting from Covid-19, administrators must ensure that they are up to date with CMS’s ever-changing policies and are prepared for the scrutiny of each new survey.

Where preparation fails, administrators should consider whether to challenge each alleged deficiency by reviewing the deficiencies closely to ensure the facts support the surveyors’ claims. Facilities should develop their own set of factual and documented supports demonstrating compliance.

While it is standard practice to consider challenging significant survey results, due to the new focus resulting from Covid-19, many infection control deficiencies will be relatively minor—at "D" and "E" levels of scope and severity, yet still have significant impact on later penalties and a facility’s Five-Star rating. As such, facilities should consider challenging even minor infection control deficiencies which, in the past, may have simply been accepted.