Client Advisory: CMS Takes Action to Prepare Health Care Facilities to Respond to the Coronavirus (COVID-19) Threat

Introduction

On March 4, 2020, CMS issued three new Quality, Safety, and Oversight memos intended to help ensure that America’s health care facilities are prepared to meet the threat posed by COVID-19. Two memos concerned suspension of survey activities and infection control guidance in nursing facilities and the third concerned infection control guidance for hospitals. This client advisory will discuss the main points of the two infection control memos and the survey memo.

Infection Control Guidance in Hospitals and Nursing Facilities

All facilities should monitor the CDC website for up-to-date information and resources here. If a facility believes or suspects a resident or patient has COVID-19, is experiencing an increased number of respiratory illnesses, or has any other questions about COVID-19, the hospital or nursing facility should contact its local or state health department. Facilities should monitor patients and personnel with symptoms of COVID-19 or that have potentially been exposed to another patient, resident, or staff member with confirmed or suspected COVID-19.

Facilities should monitor patients, residents, staff members, and visitors for:

  • International travel within the last 14 days to restricted countries (the list of such countries is available here),
  • Signs or symptoms of a respiratory function such as fever, cough, and sore throat, and
  • Contact with someone known or suspected of COVID-19.

A nursing facility should restrict visitors from entering its facility if the visitors meet any of these criteria. A hospital should have written policies and procedures addressing patient visitation rights that include infection control concerns that can limit patient visitation rights for infection control concerns, such as the COVID-19 threat. A hospital should isolate patients who meet any of these criteria. Hospital or nursing facility staff with these signs and symptoms should not report to work, be sent home if they come to work, and isolate themselves at home.

If a nursing facility has a confirmed or suspected case of COVID-19 it should take action to appropriately care for and isolate that patient based on CDC Transmission-Based Precautions guidelines. The facility should evaluate whether they can effectively care for the patient or if it needs to transfer the patient to a hospital or another health care facility and should solicit advice from local and state health departments liberally. Hospitals and nursing facilities should ensure that staff are frequently washing their hands and carefully implementing all infection prevention protocols, including transmission-based precautions, environmental disinfection, and visitation restrictions, to prevent the spread of COVID-19 and other respiratory illness.

Survey Activities in Nursing Homes

CMS is re-prioritizing all non-emergency inspections across the country so surveyors can focus on the most serious threats currently identified, infectious disease and abuse and neglect. This recalibration will allow inspectors to shift their focus to preventing the spread of COVID-19. As of March 4, 2020, survey activity is limited to, and prioritized, as follows:

  • All immediate jeopardy complaints and allegations of abuse and neglect;
  • Complaints alleging infection control concerns including facilities with possible cases of COVID-19 or other respiratory illnesses;
  • Statutorily required recertification surveys;
  • Initial certifications;
  • Surveys of facilities and hospitals with a history of infection control deficiencies at the immediate jeopardy level within the last three years; then
  • Surveys of facilities and hospitals with a history of infection control deficiencies at lower severity levels.

If a nursing facility has a confirmed or presumptive case of COVID-19, the State Survey Agency will coordinate initiation of any compliant or recertification survey of the facility with the CDC. If a survey is necessary, the CMS Regional Office will authorize a survey. The CMS Regional Office may authorize surveys in a facility with a confirmed or presumptive COVID-19 case if reported conditions at the facility are triaged at immediate jeopardy or where the complaint or facility-reported incident involve infection control concerns at the facility. If a facility does not meet these requirements, on-site inspections may be authorized once all active or suspected COVID-19 cases have been cleared from a facility. The CMS Regional Office is supposed to review and approve all Federal enforcement action for any identified deficiencies, potentially extending the time between surveys and the issuance of 2567 reports. These are fluid protocols that CMS may update as the circumstances require.

If a survey occurs of a facility with a suspected or confirmed case of COVID-19, the state or CMS survey team will include a minimal number of surveyors required to effectively survey the facility. CMS is instructing surveyors to perform extensive off-site planning to facilitate and streamline the eventual survey to limit actual on-site time. According to CMS, the survey team should complete its onsite observations and survey activities in two days unless there are extenuating circumstances. While on-site, surveyors should focus on:

  • Improper transmission precaution procedures,
  • Lack of staff knowledge of transmission precautions,
  • Improper staff use of personal protective equipment and/or inadequate hand hygiene,
  • High-risk, significant environmental cleaning issues,
  • Ineffective and/or improper linen laundering, and
  • Infection control surveillance program issues, including how influenza and pneumococcal programs are managed.

Surveyors may also look at Governing Body or QAPI requirements that may relate to infection control or care issues while off-site.

Conclusion

CMS is attempting to take swift action to combat the impending threat posed by COVID-19. CMS hopes that these survey changes will allow surveyors and facilities to heavily focus on infection prevention and control.

Links to the three memos are available here:

All three documents contain links to additional CDC resources concerning COVID-19 and infection prevention and control.

Should your facility have any questions or concerns about caring for patients or residents that may have COVID-19, please contact your state or local health department. If you have any questions about the legal ramifications or advice concerning a survey, please contact Peter Mellette, Nathan Mortier, Harrison Gibbs, Elizabeth Dahl Coleman, or Scott Daisley at Mellette PC.

This client advisory is for general educational purposes only. 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.