In the days before the full onset of the COVID-19 pandemic in the U.S. in 2020, the federal government announced that it was reorienting all nursing home inspections to focus on infection control.
The announcement on March 4 directed all inspections of skilled nursing facilities to focus on compliance with the Centers for Medicare & Medicaid Services’ (CMS) infection control policies and to suspend all non-emergency survey work, with a focus on areas of concern about the spread of COVID-19.
In the wake of that announcement, infection control came under the regulatory microscope, and it showed in the citations of non-compliance with federal regulations, or F-tags, that nursing homes received in 2020. The F-tag F880, for the presence of an infection prevention and control program in the facility, was cited more than 11,500 times in 2020, according to Todd Selby, an attorney with the law firm Hall, Render, Killian, Heath & Lyman, P.C.
This tag was part of that focus on infection control in surveys, as were others, Selby told Skilled Nursing News. Overall, there were about 61,000 focused infection control surveys in 2020 — primarily conducted over the phone — and Selby stressed that that those 11,500 citations were for one F-tag alone.
“There were 7% more immediate jeopardies [for F-880] in 2020 than there were in the prior two years,” he told SNN. “There has been an uptick in infection control citations, primarily due to the infection control surveys. There’s been an uptick in immediate jeopardies due to the infection control surveys.”
On a webinar held March 15 by Post-Acute Advisor, Selby noted that there were more than 180 IJ-level findings for infection control in 2020, which was triple the rate of those citations in 2019, according to an August 14, 2020 press release from CMS.
“That number will quadruple, or quintuple, in my opinion,” he said on the webinar.
Infection control focus will remain
Though he stressed in conversation with SNN that this remains an opinion, Selby believes there will be a continued focus on infection control in administrative litigation — filed by the state, CMS, or both — when a facility has a bad survey to collect civil money penalties (CMP). This is because states are starting to do survey in buildings again, which is likely, in his view, to lead to more infection control citations.
And this type of litigation does not apply to the often-controversial immunity laws that some states passed for health care providers in the early months of the pandemic, Selby observed on the March 15 webinar.
There already has been an increase in CMPs due to infection control surveys, which he believes would have happened regardless of presidential administration, given that the Trump administration issued more than $15 million in such penalties during the COVID-19 emergency.
And Sean Fahey, an attorney at the same law firm, told SNN in a joint interview with Selby that the focus on infection control is going to continue.
“The states’ survey agencies are still directed to survey 20% of their nursing homes as infection control-focused surveys in this fiscal year,” he noted. “The emphasis is not going away. The only thing that might reduce the numbers down a bit is that they did change the criteria for the focused infection control survey measurements that they use to subject your facility to one of those surveys.”
Both Fahey and Selby serve as legal counsel to post-acute providers across the health care spectrum, and work actively with the nursing home trade groups American Health Care Association (AHCA) and LeadingAge on their legal and regulatory committees.
That change from CMS, made January 4 of this year, means that factors that jeopardize resident health and safety other than COVID-19 outbreaks can trigger a survey, and the focused infection control (FIC) surveys have to be “stand-alone surveys not associated with a recertification survey” to count toward that 20% required threshold, according to the document.
What surveyors will find when they go into SNFs with in-person inspections is likely to also be a factor in administrative litigation; one restructuring expert in California told SNN at the start of the year that he expected “we’re going to have a shock when we start to see regular surveying of these facilities.”
“We can say from consulting we’ve done … I’ve seen failures to perform life safety functions, failures to perform dietary rules, failures to perform PT [physical therapy], and other sorts of conditions that just six months ago or a year ago would have been flagged immediately, because we have pretty good surveyors across California,” Jerry Seelig, the CEO of the health care turnaround-focused partnership Seelig + Cussigh, told SNN.
Another factor is the $397 million in federal cash that states received to conduct these kinds of surveys in nursing homes — and it’s money they could lose through a CARES Act reduction if they do not conduct them, Selby said in the March 15 webinar.
“What are they going to do? They’re going to aggressively come after facilities, in my opinion,” he said on the webinar.
With surveyors now conducting traditional survey activities, infection control will remain the focus, but other areas of focus could be tied to it, Selby said. This is likely to lead to greater CMPs and more adverse survey actions, he prognosticated.
Documenting all efforts
Whether dealing with administrative litigation or lawsuits filed by residents, families, or current, or former employees, SNFs need to make sure they are documenting all of their efforts to follow infection control protocols, both Fahey and Selby emphasized.
For the infection control surveys, SNFs should conduct and document a self-assessment on infection control, revise any policies and procedures as necessary, and make all efforts to secure personal protective equipment (PPE), including reaching out to CMS — while documenting all those efforts, they said on the March 15 webinar.
Fahey noted in the March 15 webinar that the Occupational Safety and Health Administration (OSHA) is focusing on SNFs for violations, which means SNFs need to be ready for an OSHA on-site inspection. This means having a respiratory protection documentation; a pandemic plan for the workplace; documentation of all efforts to obtain, secure, and use PPE; as well as employee training records related to COVID-19 exposure prevention, Fahey explained on the webinar.
OSHA released a directive for COVID-19 on March 12 — which details procedures for implementing a National Emphasis Program for protecting employees in “high-hazard industries” — which Fahey recommended as a resource for facilities.
Fahey told SNN that SNFs should also start to gather all information they can about the pandemic’s chaotic early months now, particularly as it pertains to supplies and PPE procurement. In addition, he recommended gathering the dates of the supplies sent by the federal government, as well as any pictures, given the reports of the overall poor caliber of the PPE.
“This is the time to be going back to look at old emails or faxes, or invoices,” Fahey told SNN. “To gather those requests that they were marking, and the inquiries or the the price quotes that they were getting … as well as any correspondence they had with contractors or state agencies, local health departments, about obtaining PPE or what they received.”