Breaking Compliance News Blog

In March, CMS announced that it was suspending routine surveys for nursing homes during the pandemic, in order to focus on infection control and Immediate Jeopardy issues. However, CMS announced on Monday that this suspension is coming to an end.

In its memo to State Survey Agency Directors, titled: Enforcement Cases Held during the Prioritization Period and Revised Survey Prioritization, CMS announced that it is resuming onsite revisits and other surveys, and expanding its desk review.

In addition to the expanded surveys previously authorized for states entering Phase 3 of the Nursing Homes Reopening guidance, CMS is authorizing further survey expansion. The guidance states (direct quote):

Many healthcare providers are accustomed to assessing their compliance programs on a regular basis. The OIG recommends this practice annually - and, as of November 28, 2019, nursing homes are required to conduct an annual review. It is common for providers to evaluate compliance policies, training, auditing programs, and other aspects of the seven elements of an effective compliance program. It is less common - and yet crucial - for organizations to evaluate their compliance culture.

Compliance program review is essential to maintaining an effective program.

1. Without a review, you don’t know what you don’t know.

Were policies distributed? Were staff, board members, contractors, and volunteers properly trained? Were all risk areas audited? Were audit findings mitigated? Were compliance reports properly investigated and met with discipline and corrective action? Without conducting a review, you don’t know. Who would you rather identify your compliance flaws: your own organization, via a compliance review – or the government, via an audit or investigation?

In a word: yes.

In July 2019, CMS published a proposed rule that would modify the Compliance and Ethics program aspects of the Phase III Long-Term Care Facilities Requirements for Participation.

One of the proposed modifications brought a sigh of relief from the nursing home industry: CMS wants to drop the requirement that nursing homes conduct an annual review of their compliance programs.

Instead, CMS proposes the following: “The operating organization for each facility must periodically review and revise its compliance program to identify necessary changes within the organization and its facilities.”

While CMS did not define “periodically” in the proposed rule, CMS refers to a “biennial” review in the proposed rule comments. Hopefully this will be clarified in the final rule.

Keep in mind that the Proposed Rule has not yet been made final, and, as of November 28, 2019, SNFs are expected to comply with the original Phase 3 compliance requirements at 42 CFR 483.85. But, what if the Proposed Rule becomes final?

The Kansas Medicaid fraud and abuse complaint email inbox went unchecked for 17 months.

According to a report issued by the Kansas Office of the Medicaid Inspector General, 209 emails were unread. 95 of these emails "alleged fraud, waste, abuse, or illegal acts related to Medicaid, MediKan, or SCHIP, or were seeking information on how to report suspected fraud." 42 of these emails contained "partially or wholly substantiated allegations of Medicaid or SCHIP fraud, waste, abuse or illegal acts....

How did it happen?

The complaint inbox went unchecked from August 2, 2017 to January 9, 2019.

All skilled nursing facilities will be required to have conducted an annual review of their compliance programs by November 28, 2019 (and it’s essential for other providers, too).  SNFs who have not conducted an annual review by November 28, 2019 will be in violation of the law.