On March 23, 2020, the Centers for Medicare & Medicaid Services (CMS) announced updates to its survey process in response to COVID-19 (see related memo and press releases on CMS website). Specifically, as authorized pursuant to section 1135(b)(5) of the Social Security Act, CMS is prioritizing certain surveys and exercising enforcement discretion for all certified provider and supplier types for the next three weeks.

Ordinarily, CMS requires physical inspections of healthcare facilities that serve Medicare and Medicaid beneficiaries. Such facilities include hospitals, nursing homes, home health agencies, end-stage renal disease facilities, and hospices. During these surveys, facilities are evaluated for compliance with the applicable conditions of participation that must be met in order for the provider to participate in those programs. Failure to meet statutorily prescribed health and safety requirements can lead to penalties, payment denials, and potentially, the loss of the ability to participate in, and receive reimbursement from, Medicare and Medicaid programs.

Under CMS’s updated survey process, only the following types of federal inspections will be prioritized and conducted during the three-week period:

  1. Complaint Inspections: Survey agencies will conduct surveys related to complaints and facility reported incidents that are triaged at the immediate jeopardy level. Such complaints include allegations such as physical/sexual abuse, neglect, or other conditions that could create an imminent threat to the health and safety of patients.
  2. Targeted Infection Control Inspections: Inspectors will conduct targeted infection control surveys of providers identified through collaboration with the Centers for Disease Control and Prevention (CDC) and the HHS Assistant Secretary for Preparedness and Response (ASPR). A streamlined review checklist will be used to minimize the impact on provider activities, while assuring that providers are protecting the health and safety of individuals in response to the COVID-19 pandemic.
  3. Self-Assessments: The streamlined review checklist will be shared with providers and suppliers to enable self-assessment of their infection control plans. This may provide a solution in some cases when there is a lack of personal protective equipment or surveyors available.

During the prioritization period, standard inspections and revisit inspections not associated with immediate jeopardy situations will not take place. Additionally, in regards to Clinical Laboratory Improvement Amendment (CLIA) laboratories, CMS will prioritize immediate jeopardy investigations over recertification surveys. Further, any initial certification surveys remain authorized in order to increase healthcare capacity. This updated survey process will enable CMS to focus inspections on the most urgent situations, which will protect patients from harm and assure that providers are implementing actions to prevent the spread of COVID-19.

Because revisit inspections that are not associated with immediate jeopardy situations will not be authorized, CMS stated that it is suspending current enforcement actions related to these revisit inspections. However, enforcement remedies associated with immediate jeopardy findings will continue.

Additionally, CMS notes that while its directive specifically applies to CMS’s federal and state agency surveyors, it is also urging other surveyors (including accrediting organizations) to proceed similarly.

This updated survey process comes on the heels of the recent immediate jeopardy investigation conducted at a nursing home in Kirkland, Washington, which was one of the initial sites of the COVID-19 outbreak in the United States. CMS determined that there were three immediate jeopardy situations at the site:

  1. The facility failed to identify and manage sick residents,
  2. Failed to notify the state health department about sickness among residents, and
  3. Failed to have a backup plan for when the facility’s primary physician became sick.

CMS notified the nursing home of its intent to terminate its participation in federal health programs, and is requiring that the facility provide CMS with a plan regarding removal of the issues for which it was cited. The new self-assessment tool will enable providers to independently determine if they are prepared to meet CMS’s expectations for preventing the spread of COVID-19.