Executive Summary
On October 1, 2013, the Centers for Medicare & Medicaid Services (“CMS”) released a Survey and Certification Letter (“S&C Letter”) that identified how the governmental shutdown (“Shutdown”) will affect state survey agency (“SA”) functions for all providers and suppliers. The S&C Letter delineates what SA functions are essential to ensure the protection of Medicare and Medicaid beneficiaries against immediate dangers to life and health and to prevent providers and suppliers from experiencing harm that would threaten their ability to provide vital health care services to Medicare and Medicaid beneficiaries.
Medicare Activities that Are Essential
The below functions are considered essential and will continue during the Shutdown to ensure basic public protections.
- Complaint Investigations Alleging Harm. Complaints that are triaged as credible allegations of immediate jeopardy (“IJ”), or harm to an individual, will continue to be assessed and investigated according to standard CMS protocols.
- Certain Federal Enforcement Actions. Enforcement actions that result from complaint investigations noted in the above will continue to be performed if the complaints are substantiated with a finding of IJ or actual harm.
- Revisiting Surveys Approved by Exception and Necessary to Prevent Termination. SAs may request approval from the CMS Regional Consortium Administrator to conduct a revisit when:
- A provider or supplier has alleged compliance with CMS requirements;
- The revisit survey is necessary to determine compliance and prevent the scheduled Medicare termination of a provider or supplier; and
- The Medicare termination is likely to threaten the safety of human life, such as by creating access to care or other serious, immediate and negative consequences for Medicare beneficiaries.
- Immediate Threats to Life or Safety. SAs should take action to mitigate any other immediate threats to the life or safety of a beneficiary, even if the situation does not fit into any of the preceding categories.
- Orderly Shutdown of Other Tasks. SAs may complete other tasks initiated prior to October 1, 2013 if such completion is necessary to ensure an orderly shutdown, provided the task can be accomplished within four hours of CMS notification.
Activities that Are Not Supported During the Shutdown
Functions normally conducted on behalf of CMS that are not described in one of the above categories will not be performed for the period of the Shutdown. These functions include:
- Standard Surveys. No Medicare recertification surveys should be performed.
- Certain Revisit Surveys. Certain revisit surveys, including both onsite and desk revisits that are not required to prevent termination of Medicare participation, will not be performed during the Shutdown. This includes revisits that would end a per-day civil monetary penalty (“CMP”) or denial of payment for new admissions. CMS plans to issue instructions as to the manner such situations are to be handled at some future point.
- Initial Surveys. No Medicare initial surveys will be performed.
- Initial Certification via Deemed Status. States will not take any action of initial certification applications for applicants who seek to demonstrate compliance via accreditation under a CMS-approved Medicare accreditation program.
- Validation Surveys. No Medicare surveys designed to validate the performance of a CMS-approved accrediting organization will be performed.
- Certain Complaint Investigations. No Medicare complaint investigations will be performed, except for those alleging IJ or actual harm to individuals.
- Patient Safety Initiative (“PSI”) Pilot Surveys. No hospital PSI surveys using the Quality Assurance/Performance Improvement (“QAPI”) infection control and discharge planning tools will be performed.
- Minimum Data Set (“MDS”) or Outcome and Assessment Information Set (“OASIS”) Activities. No MDS or OASIS activities will be performed except those necessary to maintain provider reporting.
- Informal Dispute Resolutions (“IDRs”). No IDRs or Independent IDRs will be conducted unless they are pursuant to the excepted complaint investigations noted above, for which there is adverse action taken against the facility or provider.
- New CMP-Funded Improvement Projects. No new improvement projects funded by CMP funds will be implemented unless approval has already been granted by the CMS Regional Office.
Activities Not Affected
The S&C Letter provided a brief list of Medicare programs that will not be affected by the Shutdown:
- Clinical Laboratory Improvement Amendments (“CLIA”). CLIA survey and certification functions are provided through user fees and are not affected by the Shutdown.
- Background Check National Program. Neither federal nor state background check program activities are affected by the Shutdown. These functions have been funded separately from the annual appropriations process.
- CMS Vendor Contracts Awarded Prior to October 1, 2013. These contracts are allocated to fiscal year 2013, which ended September 30, 2013.
Conclusion
CMS expects SAs to maintain the infrastructure capability to support the complaint investigations, enforcement actions and survey information systems for Medicare activities authorized in the S&C Letter. In the event the Shutdown persists for more than a few weeks, CMS will provide further instructions with regard to any special provisions that are appropriate for survey and certification activities.If you have any questions concerning current or future survey and certification activities during the Shutdown, please contact:
- Todd Selby at 317.977.1440 or tselby@wp.hallrender.com;
- Brian Jent at 317.977.1402 or bjent@wp.hallrender.com;
- David Bufford at 502.568.9368 or dbufford@wp.hallrender.com; or
- Your regular Hall Render attorney.
