State Survey & Certification Activities during the Shutdown CMS QSO-26-01-ALL-REVISED

The Federal Government has been shut down since October 1^st. Congress has not passed a new budget and has been unable to pass a spending package to keep normal operations and spending before the midnight deadline on September 30^th.

While direct funding has not been impacted by the shutdown, survey activity has been significantly curtailed. With CMS issuing QSO-26-01 issued on October 1^st which can be found here.

On Tuesday, October 21^st, CMS revised the QSO-26-01-All Memo regarding survey and certification activities during the shutdown. You can also find the Revised memo here. The changes between the initial and revised memo are in red text, making it easier to quickly see the changes.

The major changes in the revised memo vs. the initial memo are as follows:

• Contracted surveyors may only perform the excepted survey activities, excepted activities are those surveys outlined in QSO-26-01 that may continue during the shutdown.
• State licensure surveys do not count as federal surveys during the shutdown.
• States may survey Medicaid-only provider types depending on available Medicaid funding in the state.
• Excepted activities are related to the safety of human life or protection of property and that non-excepted functions should not be represented as Federal Survey and Certification activities.
• Facility reported incidents and complaints alleging harm – IJ or actual harm are eligible for surveys, issuance of 2567s only if there are citations at a level of actual harm or immediate jeopardy, communication and revisits to clear the deficiency.
• Revisit surveys are allowed when there is noncompliance with CMS requirements and the revisit is necessary to determine compliance and prevent scheduled Medicare termination or prevent a mandated 3 month denial for new admission. Requests for these exceptions shall be sent to CMS by DQA prior to the revisit survey.
• Monitoring and oversight of a nursing home which voluntarily closes.
• 2567s that do not meet the excepted categories should be held and not issued.

The following activities are prohibited during the shutdown:

• Processing standard surveys without an IJ/actual harm.
• Revisit surveys except those specifically laid out.
  • SAs may remove any enforcement remedies, as appropriate as a result of an expected revisit.
• Initial surveys.
• IDRs – This includes termination of the provider agreement.
• Trainings for surveyors on the Quality Safety and Education Portal or the SMQT.
• Processing Certification Actions – Initial Certifications, CHOWS, Changes of Locations may not be done during the shutdown.

We received acknowledgements from DQA that their understanding and interpretation of the Revised QSO match what is described above. We continue to receive questions about survey situations and seek answers and clarifications from DQA, please continue to send these questions to us so that we can get answers and disseminate the information to members. Most recently we received answers to the following questions on complaint surveys during the shutdown:

• Given that surveyors can only visit on complaints that allege actual harm or immediate jeopardy, what happens if the complaint is substantiated at a lower than G level? Since SODs cannot be issued for lower-level citations, how will 30-day discretionary DPNA’s be handled, given that they are usually 30 days from exit. If a facility is not receiving an SOD in a timely manner, will dates be moved for discretionary DPNA also?
  • If the allegation meets the level of actual harm or IJ, the complaint/Facility Reported Incident will be investigated. If no citations are at a Level 3 or Level 4, the SOD will not be issued. If there are Level 3 or Level 4 citations and Level 1 or Level 2 citations, all of the citations will be issued.
  • There will not be a need to adjust recommended imposition dates. Immediate imposition of remedies happens when the facility has no opportunity to correct. This is only triggered by issuing an actual harm cite at the current survey. Discretionary Denial of Payment will not be recommended/imposed when the only citations are at a severity level 2 or below.
• With overlapping complaint/self-report surveys, annual surveys, and life safety surveys, typically these survey cycles merge together until all outstanding issues are cleared, and this would impact areas like Denial of Payment for New Admissions.
  • With the current shutdown and limited survey ability, members are receiving confirmations from their RFOD that each type of survey is being treated as a separate cycle, with the recognition that there is a limited ability to revisit and close out the survey cycle. We believe that this is a positive response to the uncertainty that the federal shutdown has caused, so if your facility is in a situation where there are multiple survey types ongoing, please reach out to your RFOD to make sure that they are being treated as separate survey cycles.

As we continue to receive updated information from CMS, from AHCA, and from the Bureau of Nursing Home Resident Care (BNHRC)/Division of Quality Assurance (DQA) on survey and other implications during the federal shutdown, we will continue to amplify those messages and share information with you as it becomes available.

Again, please don’t hesitate to reach out to Rick and Eric if you are experiencing survey issues as a result of the shutdown so that we can work with the Department to address the issues and to elevate issues to AHCA and CMS. Additionally, please let us know if you are experiencing surveys which do not meet the exceptions in QSO-26-10-All REVISED so that we can have an accurate accounting and understanding of the surveys taking place at member facilities and document instances to discuss with DQA.

Thank you!