Facebook Twitter RSS feed

CMS Accelerates Denial of Payment Remedy for Harm Level Citations

Effective March 1, the Minnesota Department of Health (MDH) will impose Discretionary Denial Payment for New Admissions (DDPNA) on an accelerated basis for actual-harm level citations. The CMS-Chicago regional office has directed survey agencies in all Region V states (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin) to implement this new policy, citing a heightened level of surveys resulting in a deficiency at scope/severity level G or above during federal fiscal year 2019.  

We spoke this week with staff in the CMS-Chicago office to understand this enforcement policy and to advocate for our care center members, and here is what we know so far: 

When will the remedy be imposed?

Effective March 1, MDH will impose DDPNA effective 15 days from the date of the State’s notice imposing the remedy, if the situation meets any one or more of the following criteria (set out in the CMS State Operations Manual, Chapter 7, section 7304.1):

  • Immediate Jeopardy (IJ) (scope and severity levels J, K, and L) is identified on the current survey; OR
  • Any deficiency from the current survey at levels “G, H or I” that falls into any of the regulatory sections that constitute Substandard Quality of Care (SQC); OR
  • Any deficiency at “G” or above on the current survey AND if there were any deficiencies at “G” or above on the previous standard health or LSC survey or if there was any deficiency at “G” or above on any type of survey between the current survey and the last standard health or LSC survey. These surveys (standard health or LSC, complaint, revisit) must be separated by a certification of compliance, i.e., they must be from different noncompliance cycles. For instance, level G or above deficiencies from multiple surveys within the same noncompliance cycle must not be combined to make this a “double G or higher” determination; OR
  • A facility classified as a Special Focus Facility (SFF) AND has a deficiency citation at level “F,” (excluding any level “F” citations under tags F812, F813 or F814) or higher for the current health survey or “G” or higher for the current Life Safety Code (LSC) survey.

CMS-Chicago plans to take this approach to DDPNA for two years, and it will monitor survey results during that period to determine whether the approach is effective at reducing the number of harm-level citations.

Will providers receive fines in additional to denial of payment?

CMS will continue to impose civil money penalties (CMPs) in addition to DDPNA in the cases noted above, except for those that only meet the “single G” criteria.  In single-G cases, the general practice will be to impose DDPNA instead of a CMP, which is positive.

Is there an opportunity to correct before the denial of payment remedy takes effect? 

Yes.  DDPNA will not automatically take effect in every case where MDH gives notice of the remedy. Providers will have 15 days from the date it receives notice of the remedy to correct the deficient practice. While this will be a very short time frame in which to create and implement an approved plan of correction, providers who receive notice of the remedy will have the opportunity to correct within that time frame and avoid DDPNA from taking effect. CMS intends for this accelerated application of DDPNA to serve as an incentive for providers to return to a state of substantial compliance quickly and to maintain compliance after-the-fact.

Will the state survey agency be required to conduct a revisit within those initial 15 days? 

No. While CMS acknowledges that states may receive additional calls or pressure from providers asking for revisits to be conducted, CMS does not expect the States to conduct a revisit any sooner than is currently required.  However, state surveyors will continue to have the ability to verify substantial compliance as of a date prior to the revisit, if the provider presents sufficient evidence of that compliance. While MDH has worked to conduct revisits prior to a setting's date certain when it can, we don’t know how it will manage these situations and we are working to learn more from the Department.

Survey exit conferences will be more important than ever, given this enforcement policy.  What can we do to ensure those conferences provide meaningful information? 

We strongly emphasized this point in our phone call with CMS, noting that thorough and clear exit conferences are critical from both a compliance and prevention standpoint, in that they allow providers to jump start a root cause analysis and development of an action plan.

Is this a national policy?

No. Each CMS regional office may determine its own approach to DDPNA. However, the policy being implemented by Region V is already in place in Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas) and Region VII (Iowa, Kansas, Missouri, Nebraska).

What should providers do next? 

We will share additional insights in the coming days. In the meantime, we advise members to do the following:

  • Advocate with surveyors for a clear and thorough exit conference.  While surveyor practice is not to identify specific scope and severity (except in the case of IJ), they should be able to tell you if they have a concern about actual harm (e.g. harm arising from pressure ulcers), which would allow you to take action quickly.
  • Read all communications from MDH carefully, with a particular eye to what remedies MDH is imposing and with what effective dates. It has been standard practice for 2567 transmittal letters to note that mandatory denial of payment for new admissions will take effect if substantial compliance is not achieved within 90 days, but this enforcement policy relates to discretionary denial of payment for new admissions, effective after 15 days. Read carefully to be sure you don’t accidentally interpret a 15-day notice of DDPNA as the same as the 90 day notice of mandatory denial of payment.
  • If you receive a citation scope/severity level G or above and MDH imposes DDPNA, work to submit your plan of correction to MDH as soon as you can, and push them to approve it as soon as they can.  The sooner you have an approved plan, the more time you will have to implement the plan prior to the remedy taking effect.

We are continuing to gather information, analyze the potential impact of this new DDPNA policy and advocate for providers on this issue. Among other steps, we are meeting on Feb. 28 with staff from LeadingAge affiliates in the other Region V states and the LeadingAge national team to discuss issues and strategies.

Please contact Jon Lips (jlips@leadingagemn.org) with any questions.

AgingServicesJobs.org
Find/post open positions serving older adults in Minnesota.