CMS to Increase Penalties for Infection Control Violations in Nursing Homes, Reports 26,000 COVID-19 Deaths

Nearly 26,000.

That’s the devastating number of people who have died of COVID-19 in nursing homes through around mid-May, according to the first set of complete federal data — which also found about 60,000 infections.

The Centers for Medicare & Medicaid Services (CMS) and Centers for Disease Control & Prevention (CDC) on Monday announced the initial release of the country-wide information, which the agencies had required the nation’s more than 15,400 nursing homes to submit over the last several weeks.

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The federal government cited those numbers in unveiling increased civil monetary penalties (CMPs) for nursing homes with patterns of infection control deficiencies, while also implementing new enforcement of lower-level infection control issues to bolster compliance.

“The Trump administration is taking consistent action to protect the vulnerable,” CMS administrator Seema Verma said in a statement. “While many nursing homes have performed well and demonstrated that it’s entirely possible to keep nursing home patients safe, we are outlining new instructions for state survey agencies and enforcement actions for nursing homes that are not following federal safety requirements.”

A SNF cited for infection control deficiencies once in the last year, or at the last standard survey, would face a civil monetary penalty of up to $5,000, at the discretion of the state and CMS, if it had a citation for non-compliance with infection control requirements in a way that was not extensive. But a SNF that is non-compliant with infection control requirements in a way that is widespread would face a CMP of $10,000 per instance.

For SNFs cited for infection control deficiencies twice or more in the past two years, the fines become even more significant. Such a SNF that has a citation for non-compliance in a way that is not widespread faces a CMP of $15,000 per instance; SNFs cited for widespread non-compliance with infection control will face a CMP of $20,000 per instance.

SNFs that receive an infection control deficiency citation when they have no previous history of citations for infection control will only have to submit a directed plan of correction if the violation is not widespread. SNFs with a similarly spotless infection control history that do have a widespread issue of noncompliance would face both a plan of correction and discretionary denial of payment for new admissions.

“The fines are more significant for nursing homes that have a history of past infection control deficiencies, but our approach is not simply punitive,” Verma said on a Monday call with reporters.

CMS will also use $80 million in CARES Act funding for State Survey Agencies (SSAs) as a carrot and a stick as officials push states to perform 100% of required infection control surveys by the end of July.

Using that money, all states must perform surveys of facilities with previous COVID-19 outbreaks, with additional inspections required of all buildings with new reported cases within three to five days.

So far, while some states have met the goal of completing targeted infection control inspections, others have only performed 11%, for an average of 54.1%. In response, CMS will base those CARES Act dollars to states on survey compliance.

“States that have not completed 100% of focused infection control surveys of their nursing home by July 31, 2020 will be required to submit a corrective action plan to their CMS location outlining the strategy for completion of these surveys within 30 days,” CMS observed. “If, after the 30-day period, states have still not performed surveys in 100% of nursing homes, their CARES Act fiscal year 2021 allocation may be reduced by 10%. Subsequent 30-day extensions could result in an additional 5% reduction. These funds would then be redistributed to those states that completed 100% of their focused infection control surveys by July 31.”

Grim toll

The federal total comes in lower than the 39,000 figure from the Kaiser Family Foundation as of May 29, though that number only included data from 39 states.

The official federal number will likely increase as more facilities report and universal testing programs reach completion, Verma acknowledged; in addition, while most facilities reported cumulative data since the start of the pandemic, others only submitted single-week case counts. Due to rulemaking limitations, CMS was only able to mandate that nursing homes submit data as of May 8.

“I feel pretty comfortable that that the nursing homes did report their cases from the beginning, because I don’t think the numbers would have been that high,” Verma said. “I mean, there’s no way that we had 26,000 new cases in the week in nursing homes.”

After enormous pressure from resident advocates and lawmakers, CMS announced its partnership with the CDC to collect and compile COVID-19 data from all nursing homes in the country in mid-April.

CMS released an interim final rule at the end of that month laying out the protocol, with the first set of data due on May 17. Fines of $1,000 for non-compliance still do not kick in until the week ending June 7, though providers that failed to submit data by this past Sunday will receive a formal warning.

The majority of nursing homes did report by that initial May 17 deadline, officials announced earlier this month; the Monday data represents information from approximately 12,500 facilities, or around 80% of the total.

Based on that data, CMS and the CDC determined that one in four facilities had at least one COVID-19 infection, while one in five had at least one death.

Early patterns

Despite an independent analysis showing no connection between federal quality ratings and COVID-19 infections, CMS found a gap between one-star and five-star facilities.

“Early analysis shows that facilities with a one-star quality rating were more likely to have large numbers of COVID-19 cases than facilities with a five-star quality rating,” CMS observed. “CMS will take enforcement action against the nursing homes that have not reported data into the CDC as required under CMS participation requirements.”

Staffing coverage also played a role in the patterns that CMS found, according to Verma.

“We also know that the data is correlated with staffing, so those that have higher staffing ratios — that means less staff to the patients — in those particular cases, we’re also seeing some more issues there,” she said.

CMS will begin posting the data to Nursing Home Compare on Thursday, with monthly updates thereafter.

Verma has repeatedly emphasized that nursing homes were already required to report data about COVID-19 cases and deaths to families and local health departments, characterizing the federal compilation as a way to potentially track patterns of infection.

“Previous to our changes, the requirement was that they report to the local health department, so states actually have this information — and I think, some of you have seen, that states are releasing that data,” Verma said last month. “The issue is that we haven’t had that data. There’s been issues on the federal level to really understand the extent of it in nursing homes, and so that’s why we’ve made these changes.”

Officials have also stressed that the data-reporting guidelines are not meant to be punitive, but instead help the federal government direct resources to where they are needed most.

“CMS is not looking to penalize you, but we’re looking to help you,” Dr. Jenita Bell of the CDC said earlier this month.

Verma reiterated that sentiment on Monday, pointing to quality improvement resources that CMS has provided to nursing homes and generally praising their performance during the pandemic.

“We can see that the vast majority of nursing homes did well,” she said. “You’re seeing only cases in about 25%, and deaths in 20%. So many nursing homes have been abiding by these long-standing infection control guidelines, and have done well. The announcement today and our enforcement actions are around focusing on those that are not.”

Maggie Flynn contributed reporting.

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