Nursing Homes and Other Long-Term Care Facilities
As many of you are likely already aware, a nursing home located in Washington State, Life Care Center of Kirkland (Life Care), was at the epicenter of the state’s COVID-19 outbreak and was the subject of a complaint inspection conducted by CMS and the Washington Department of Social & Health Services State Agency (Agency). The inspection was completed on or about March 16, 2020. According to CMS, the findings of the inspection included three issues that caused Life Care to be placed in an “Immediate Jeopardy” disposition. Being placed in Immediate Jeopardy means that the inspection found serious deficiencies that were widespread and serious enough to constitute imminent danger to resident health or safety. The three identified deficiencies that led to Immediate Jeopardy were Life Care’s failure to (1) rapidly identify and manage ill residents, (2) notify the Washington Department of Health about the increasing rate of respiratory infection among residents, and (3) possess a sufficient back-up plan when the facility’s primary physician fell ill. As a result, CMS advised Life Care that its Medicare provider agreement would be terminated in 23 days if three deficiencies were not corrected before then. There were additional deficiencies that did not rise to the Immediate Jeopardy level, including those related to the governing body, medical director responsibilities, clinical records, and quality assessments and assurance programs. These deficiencies will have to be remedied by or before September 16, 2020.
In addition to CMS, the Agency also released its findings of the inspection, many of which mirror the findings of CMS, and included a finding that Life Care did not have an adequate infection control system in place. As a result of its findings, the Agency issued a “stop placement” of new resident and placed conditions on Life Care, which include that Life Care must hire, at its own expense, an independent long-term care medical director consultant experienced in internal medical and infectious disease to assist Life Care adhere to CMS’s requirements for infection control, quality care, emergency medical response and medical-related documentation, among other things. The “stop placement” went into effect on April 1, 2020.
On March 28, 2020, CMS conducted a revisit inspection and determined that the Immediate Jeopardy issues had been removed. As a result, the potential termination of Life Care’s Medicare provider agreement was extended to September 16, 2020, by which time all deficiencies must be fixed. In the meantime, however, CMS fined Life Care $611,325 which equates to $13,585 per day (from February 12 -March 27) and denied payment for new admissions for a 7-day period (from March 21-27, 2020).
As a result of the issues identified at Life Care, CMS announced that federal surveyors will focus on conducting targeted infection control surveys using a revised infection control protocol specifically adapted to preventing the spread of COVID-19. (CMS will also target situations of immediate jeopardy.) CMS stated that this new process will assess if certain facilities are prepared to meet CMS’s expectations for preventing the spread of COVI-19. To that end, CMS released a voluntary self-assessment tool which it urges nursing homes to utilize to determine if they are meeting federal requirements related to COVID-19 and infection control.
Recognizing that nursing homes are both healthcare providers and the full-time homes for some of the most vulnerable people, on April 2, 2020, CMS, together with the CDC, issued new, more stringent recommendations to nursing homes (and state and local governments). These recommendations are based on observations by CMS and CDC experts who have been onsite at long-term care facilities and are as follows:
1. Nursing homes should immediately ensure they are complying with all CMS and CDC guidance relating to infection control, including adherence to appropriate hand hygiene and completing the self-assessment checklist.
2. State and local leaders should work with long-term care facilities to address their needs for personal protective equipment (PPE) and/or COVID-19 tests.
3. Long-term facilities should immediately implement symptom screening for everyone who enters the facility for any reason, which includes temperature checks. Facilities should also limit access points into the facility and all access points should have a screening station. In addition, every resident should be assessed for COVID-19 symptoms.
4. Long-term care facilities should ensure all staff are using appropriate PPE when interacting with residents to the extent PPE is available.
5. Long-term care facilities should utilize separate staffing teams for COVID-19 residents to the best of their ability, and work with state and local leaders to designate separate facilities or units to separate residents who do not have COVID-19 (negative test results) from those who either test positive for COVID-19 or whose COVID-19 status is unknown.
Important Disclaimer: The information in this blog post is provided for general informational purposes only, and may not reflect the current law in a particular jurisdiction. The information is provided as of the date noted, and the law or interpretations thereof may change over time. While we make efforts to ensure the information is current and accurate, due to the ever-changing nature of the law, we can make no guarantees or promises. No information contained in this post shall be construed as legal advice from Barrett Law or the individual author. The blog neither creates an attorney-client relationship nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in this post. Appropriate legal or other professional advice regarding the particular facts and circumstances at issue should be obtained from a lawyer licensed in the appropriate state, country or other appropriate licensing jurisdiction.