The Shutdown’s Impact on Your Nursing Facility – Revisited

Congress recently enacted Public Law 113-46, which provided retroactive authority back to the first day of the shutdown. CMS provided answers to State Agencies regarding the shutdown’s impact on survey & certification related activities that providers should be aware of in its October 25, 2013 letter, “Questions + Answers for State Recovery after the Federal Government Shutdown” (Ref: S&C: 14-04-ALL). To review the impact that the shutdown had on nursing home survey & certification, visit our prior blog post, “Impact of Federal Government Shutdown on Nursing Home Survey & Certification.”

Outlined below are some of the answers to questions providers may be asking about as far as deficiencies, Civil Monetary Penalties (CMPs) and Denial of Payment for New Admissions (DPNA).

• Some states continued to do non-essential federal work, including standard surveys, while the shutdown was in place. CMS can recognize these surveys as federal surveys of record. Federal enforcement remedies are available to the extent that they are warranted.
• If Life Safety Code (LSC) surveys were deferred because of the shutdown, they should be conducted now, even if there was a gap in between the two parts of the recertification survey.
• Deficiencies identified during surveys conducted during the shutdown will be considered federal citations as long as they were conducted by federally-qualified surveyors using the federal survey process.
• For dually-certified facilities, the States were only able to continue certifying Medicaid-only nursing facilities. If a facility was found to be in substantial compliance with Medicare and Medicaid requirements, the Medicare certification date could be retroactive to the date the CMS requirements were met, if:
  • The facility submitted an appropriate Medicare enrollment application
  • Met all Medicare requirements
  • State survey found substantial compliance with CMS requirements for non-deemed facilities
  • Surveys that resulted in no deficiencies or low-level deficiencies could not be processed during the shutdown. The Regional Office should be sent the Form CMS-2567 now and the survey date will remain the same.
  • The enforcement cycle begins with the survey completion date. For nursing homes, the mandatory DPNA (at 3 months) and mandatory termination (at 6 months) are calculated using the survey completion date. With the exception of CMPs and applicable State monitoring, the effective dates of imposed sanctions – such as the 2 day advance notice requirement for IJs – cannot be before the applicable advance notice requirement.
  • If a survey completed immediately before the shutdown resulted in an IJ, but a Statement of Deficiencies (SOD) was not issued, then the SOD must be issued immediately. The issuance date will serve as the survey completion date in these cases. Revisits must be conducted as soon as an acceptable Plan of Correction (POC) and allegation of compliance have been received.
  • If a revisit survey was delayed after a SOD was issued to a nursing facility, then the revisit should occur as quickly as possible. The IJ may be considered to be abated if:
    • The revisit confirms the IJ has been abated
    • Adequate documentation has been provided by the facility to show the abatement on a specific date that occurring during/after the shutdown
    • If a survey was delayed due to the shutdown, the start date for recommendation of CMPs will follow the normal process. Only if there is evidence that the noncompliance started ahead of the survey dates will CMS set a CMP date that precedes those dates.
    • If a credible allegation of compliance was sent to the State Agency during the shutdown and a revisit could not be performed, the end date of the sanction may be earlier than the date of the revisit survey if CMS finds the following 3 circumstances are met:
      • The facility has submitted a credible allegation of compliance
      • The facility s in substantial compliance with federal requirements
      • The facility has provided adequate documentation that compliance was restored on a specific date during/after the shutdown
      • If an exit was conducted but a SOD was not issued because of the shutdown, then the providers will still have the 10-day window to submit their POCs.