CMS Pivots to Enforcement of Infection Control Deficiencies in Nursing Facilities

June 5th, 2020

As the COVID-19 pandemic rages on and long-term care residents are at enhanced risk, infection control procedures and practices in nursing facilities are back under the microscope. As part of its renewed emphasis on proper infection control in nursing facilities, CMS released a new State Survey Memorandum and accompanying press release detailing the enhanced enforcement penalties that facilities will now face for deficiency citations related to infection control. This client advisory will briefly summarize these enhanced enforcement penalties and discuss their implications for Virginia nursing facilities.

CMS’s June 1, 2020 enforcement guidance follows past CMS guidance detailing how state survey agencies will prioritize surveying facilities with infection control citation histories behind only facilities with histories of abuse and neglect citations. Additionally, nursing facilities cited at potential for harm severity levels D, E, or F for any deficiency associated with infection control (F-Tags 441, 880, 881, and 883) will face the following enforcement penalties:

  • For facilities that have not been cited for an Infection Control Deficiency in the last year or on the last standard survey:
    • Level D & E citations will result in a Directed Plan of Correction.
    • Level F citation will result in a Directed Plan of Correction and a Discretionary Denial of Payment for New Admissions with 45 days to demonstrate compliance with Infection Control deficiencies.
  • For facilities cited previously for Infection Control Deficiencies once in the last year or on the last standard survey:
    • Level D & E citations will result in a Directed Plan of Correction, Discretionary Denial of Payment for New Admissions with 45 days to demonstrate compliance with Infection Control deficiencies, and a Per Instance CMP of up to $5,000.
    • Level F citation will result in a Directed Plan of Correction, Discretionary Denial of Payment for New Admissions with 45 days to demonstrate compliance with Infection Control deficiencies, and a Per Instance CMP of up to $10,000.
  • For facilities cited previously for Infection Control Deficiencies twice or more in the last two years or twice since the second to last standard survey:
    • Level D & E citations will result in a Directed Plan of Correction, Discretionary Denial of Payment for New Admissions with 30 days to demonstrate compliance with Infection Control deficiencies, and a Per Instance CMP of $15,000 or a per day CMP that exceeds $15,000.
    • Level F citation will result in a Directed Plan of Correction, Discretionary Denial of Payment for New Admissions with 30 days to demonstrate compliance with Infection Control deficiencies, and a Per Instance CMP of $20,000 or a per day CMP the exceeds $20,000.

To see what these enhanced enforcement penalties could mean for Virginia facilities, we pulled Quality, Certification & Oversight Reports (QCOR) data to look at the survey history of Virginia nursing facilities for the four infection control F-Tags. According to QCOR data, over 50 Virginia nursing facilities are at risk of the highest enhanced enforcement penalties for D, E, or F Infection Control deficiency citations because of two or more Infection Control deficiency citations in the last two years. Around 140 Virginia facilities are at risk of enhanced enforcement penalties due to at least one Infection Control citation in the last year or since the last standard survey.

Facilities cited for an Infection Control Deficiency at severity level G, H, or I will face a Directed Plan of Correction, Discretionary Denial of Payment for New Admissions with 30 days to demonstrate compliance with Infection Control deficiencies, and a CMP imposed at the highest amount option within the appropriate range in the CMP analytic tool. In addition to the mandatory remedy of a Temporary Manager or Termination, facilities cited for an Infection Control Deficiency at severity level J, K, or L will face a Directed Plan of Correction, Discretionary Denial of Payment for New Admissions with 15 days to demonstrate compliance with Infection Control deficiencies, and a CMP imposed at the highest amount option within the appropriate range in the CMP analytic tool. Citations at the G level or above do not take into account the past Infection Control survey history of the facility.

Having an effective Infection Control program is important for nursing facilities in the best of times because of the vulnerable nature of the nursing population. When we are experiencing a pandemic of a virus known to prey on the vulnerable, the importance of infection control is amplified. Regardless of its efforts over the last year to minimize facility requirements for Infection Preventionists, CMS has pivoted to re-emphasize the importance of maintaining an effective Infection Control program at all times and may penalize those facilities that may have relatively minor, non-COVID-19 related survey compliance issues.

Should you or your facility have any questions about this enhanced enforcement guidance or need assistance in understanding the many new issues affecting your facility, please contact Peter Mellette, Harrison Gibbs, Elizabeth Dahl Coleman, or Scott Daisley at Mellette PC.

This client advisory is for general educational purposes only and does not cover every provision of the interim final rue. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.

Categories: Client Advisory