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Looking Back on 2021 and Toward 2022 – Survey & Enforcement

Looking Back on 2021 and Toward 2022 – Survey & Enforcement

2021 was a tumultuous year for SNF survey and enforcement. 2022 will likely bring a bit more stability, but continue to be a year of intense scrutiny.

Looking Back on 2021

Lots of Inconsistency

The continuously changing CMS and CDC guidance, resulted in many inconsistencies in how various state survey agencies interpret the regulations, and even variances among state survey teams within states, which made it difficult for providers to comply.

Unprecedented Remedies

To compound matters, enforcement measures have been unprecedented, including fines in the mid-six figure range, denials of payment lasting months (with reduced time for correction due to short discretionary periods), and directed plans of correction that extend survey cycles.

A Lot of Successful Appeals

Our Survey & Enforcement Team assisted our clients with hundreds of citations in this past year – formally disputing well over 200 of them.

Through informal and formal appeals, we were able to remove or reduce the scope and severity of imposed deficiencies, and in other cases we were able to reduce the number of days of enforcement to lower Civil Monetary Penalties or denial of payment days. Some examples include:

  • Reduction of scope and severity of multiple citations (e.g., L to an F; L to an E; J to a D; G to a D, etc.)
  • Deletion of several D and F level citations and reduction of an L deficiency to an E that resulted in a 190-point reduction in survey points, and the $99,195 fine was reduced to $5,000
  • Multiple “G” level citations deleted
  • Obtained past-noncompliance designations, resulting in reduction of CMPs
  • Rescinded and reduced fines through Departmental Appeals Board matters
  • Reduction of 40 days of a denial of payment for new admissions.

Financial Hardships

Providers grappled with extraordinary financial challenges while facing the unprecedented remedies, which included steep civil monetary penalties. We assisted clients in pursuing requests for reductions to civil monetary penalties based on their financial hardships. We were able to obtain relief for clients by reducing CMPs (anywhere from $50,000 in one case, to another where we obtained a reduction of $242,000), and secured alternate payment arrangements (e.g., installments and extensions).

Missed Opportunities

There is a distinct difference between the clinical regulatory requirements and the legal enforcement process when dealing with “survey & enforcement”. It is not uncommon for providers who feel that they know the expectations of surveyors under the RoPs to fail to fully register the unique rules that apply to the enforcement process.

Unfortunately, many providers were taken by surprise when they were hit with devastating fines or denials of payment when they thought they had things under control. These remedies often could have been avoided or mitigated had they understood the legal process and involved us earlier. Common mistakes that we saw all too often in 2021 include: missing enforcement correspondence altogether, missing pertinent dates in the letters, and misinterpreting key enforcement information (e.g., appeal deadlines, the initiation of discretionary denials of payment for new admissions, etc.).

Looking Forward in 2022

Citing Beyond Infection Control

Looking forward to 2022, we expect that the state survey agencies will catch up on the backlog of annual surveys that were suspended during the survey prioritization period. With these visits occurring, we anticipate there will be several citations in areas that have not received as much attention since COVID-19 hit, as understandably, providers were forced to focus significant energy and resources to prevent and manage the pandemic’s impact.

What You Should Do to Prepare

To prepare for the ongoing 2022 surveys:

  • Assess and address your facility’s greatest regulatory risk areas through your Quality Assurance and Performance Improvement (QAPI) program.
  • Review the top citations for annual surveys and abbreviated surveys in your state so far, to determine where to start the focus. For example, most facilities would be wise to review and devote training and internal audits based on:
    • F812 (Food Safety Requirements)
    • F761 (Label/Store Drugs & Biologicals)
    • F677 (ADLs)
    • F695 (Respiratory/Trach)
    • F689 (Accidents)
    • F609 (Reporting of Alleged Violations)
    • F684 (Quality of Care)
    • F686 (Pressure Ulcers)
  • Review adverse events through your QAPI program to be sure you have implemented effective past noncompliance plans.
  • Continue with your infection control measures, and make sure you are documenting changes to policies and procedures, and keeping records (e.g., screening records, visitor logs, etc.) consistent with your documentation retention and destruction policies.
  • Be on the lookout for enforcement correspondence from the state and/or CMS and read each letter carefully.
  • Timely reach out to a member of our Survey & Enforcement Team before it is too late for us to help you avoid or mitigate your potential damages.