Health Law Monitor

CMS Announces Enhanced Enforcement and Surveys for Long Term Care Facilities

June 22, 2020

By: Jay E. Ingle

The Centers for Medicare & Medicaid Services has announced the next steps in enforcement efforts relating to long term care facilities following reduced efforts as a result of the COVID-19 pandemic. On June 1, CMS released a Quality, Safety and Oversight Group memorandum (QSO 20-31) directing state survey agency directors on a series of new steps designed to help safeguard the health and safety of long term care facilities. The steps outlined in QSO 20-31 are to be implemented immediately and will likely lead to an increase in survey activity and enforcement efforts, particularly with regard to Focused Infection Control Surveys.

The likely increase in enforcement efforts will result in part due to CMS's linking of enforcement efforts to funding for state survey agencies available through the CARES Act. Specifically, the memorandum places a deadline of July 31 for states to complete 100% of required Focused Infection Control Surveys. If states do not meet that goal, CMS states that it will require submission of a corrective action plan outlining the state survey agency’s plans for completion within 30 days. If the survey agency remains non-compliant during this 30-day window, CMS states that the state may have its allocated 2021 survey funding reduced by up to 10%. The memorandum states that as of June 1, 2020, approximately 54% of long term care facilities had already been subject to Focused Infection Control Surveys, with state completion averages ranging from 11% to 100%. 

QSO 20-31 also announced additional requirements for states relating to specific COVID-19 survey activities. By July 1, 2020, states must perform (i) on-site surveys of nursing homes with previous COVID-19 outbreaks (with an outbreak defined as cumulative confirmed cases/bed capacity at 10% or greater or cumulative confirmed plus suspected cases/bed capacity at 20% or greater or ten or more deaths reported due to COVID-19), (ii) on-site surveys (within three to five days of identification) of any nursing home with three or more new COVID-19 suspected and confirmed cases since the last NHSN COVID-19 report or one conformed resident case in a facility that was previously COVID-free. In addition, starting in FY 2021, states must perform annual Focused Infection Control Surveys of 20% of nursing homes based on state discretion or additional data that identifies facility and community risks.

A copy of QSO 20-31 can be found here.