Work in the Time of COVID-19: FAQs for Employers

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There are no words more feared by a skilled nursing facility Administrator during an annual recertification survey or complaint survey than these from a surveyor—“we’re citing you for an Immediate Jeopardy.” Those words set in motion a series of events both during and after the actual survey itself which can make the strongest administrator—man or woman, experienced or novice—weak in the knees.

First, there’s the rush to figure out exactly what is being cited at a point when the facility has no written survey report (CMS 2567) so the facility can draft and submit the required Allegation of Compliance (AOC) which must be presented to and accepted by the survey team, and its managers back at the Division of Health Service Regulation (DHSR), before the Immediate Jeopardy (IJ) can be lifted. There’s the risk, which we are seeing increasingly, that DHSR won’t accept the facility’s draft AOC and the survey team will leave the facility with the IJs pending, the facility on a 23-day fast-track decertification from the Medicare and Medicaid programs, and a host of other punitive sanctions which kick in on a very shortened time frame.

Even if a facility manages to submit an acceptable AOC and have its IJ lifted before the survey team leaves the facility, there is the inevitable soon-to-come letter from the Centers for Medicare and Medicaid Services with a range of penalties, almost certain to include a civil money penalty (often a daily one which grows quickly to big numbers) and a looming deadline by which, if all deficiencies are not corrected, not just the IJs, the facility is denied payment for new admissions.

Couple that with the inevitable reputational damage of IJ citations to the facility; the impact on its Star Rating; on subsequent survey citations; managed care contracts and even some insurance policies and, well, you get my point. It’s not good.

There is, however, another potential negative impact from an IJ citation that many Administrators learn about only later, and the hard way. Whenever a facility is cited with an IJ deficiency, the N.C. Board of Examiners for Nursing Home Administrators (the Board of Examiners) receives a copy of the CMS 2567 survey report. In response to the citation of any IJ deficiency for any regulation or FTag, the Board of Examiners sends the facility Administrator a letter asking for a written explanation of the citation and, more importantly, how the facility and Administrator responded to the IJ citation. Typically, this letter, if properly written and comprehensive, resolves the matter and that’s the end of the issue. However, the Board of Examiners can, and on occasion does, require a licensee to meet in person with the Board’s Standards of Practice Committee.

Lately, we have seen an increase in the number of IJ citations cited at what is commonly known as FTag 490, governing Administration of the facility. This FTag, and its related federal regulation, requires that the facility be “administered” in a way that ensures the ability of all residents to achieve and maintain their highest practicable mental, physical and psychosocial well-being. When this FTag is cited, then the Board of Examiners is especially interested in hearing how its licensee, the facility Administrator, responded to correct the situation cited and maintain compliance.

Administrators should remember that just like DHSR is the facility’s government licensing entity, the Board of Examiners is the Administrator’s government licensing agency and it is charged by statute and regulation with enforcing the standards set forth in law for SNF administrators. As such, the Board has an obligation to inquire into allegations that a licensed Administrator has, or may have, failed to meet those standards, including such allegations when they are set forth in a CMS 2567 survey report. The Board of Examiners has authority to dismiss such allegations upon review of the Administrator’s written response, meaning the Board takes no action against the Administrator. However, the Board also has legal authority to issue a letter of caution or letter of warning to the Administrator, both of which become part of the Administrator’s public file with the Board of Examiners, or to place an Administrator’s license in probationary status, require additional continuing education (usually reserved for cases involving potential ethics issues) and, in the most severe cases, revoke a license.

We decided to run this article now, and to remind Administrators of this sometimes forgotten impact of receiving IJ citations, because in our law practice we are seeing more IJs cited by DHSR and, more importantly, more citations at FTag 490 which then prompt the Board of Examiners to request an explanation from the Administrator. So, if you happen to find yourself in that unpleasant situation, remember these tips:

  1. If you receive an IJ citation, you will receive a letter from the Board of Examiners asking for an explanation and response.
  2. When you receive such a letter, don’t panic, but also don’t bury it on your desk and engage in avoidance. It won’t go away. The Board typically allows ample time to respond to such letters, usually at least two weeks or more. That schedule is driven by the meeting schedule of the Board’s Standards of Practice Committee and the time Committee members need to receive and review both the CMS 2567 and your response letter. But, trying to throw together a response at the last minute is not wise.
  3. If you plan to seek assistance from counsel in responding to a Board letter, which many Administrators do, then as soon as you receive your Board letter, get the letter and the CMS 2567 that prompted it, and your facility’s Plan of Correction, to your attorney as soon as possible to allow time to review the survey report, talk with you and prepare the response.
  4. In most cases, but not all, the Plan of Correction you filed for your facility, along with some additional explanation, will become the core of your response to the Board of Examiners, but each case is different and you’ll want to present your best case to the Board.
  5. If you receive an IJ citation at FTag 490 for Administration, remember that this brings heightened attention from the Board of Examiners and thus warrants a strong response on your behalf.
  6. Situations where the facility has been cited for both FTag 490 (Administration) and FTag 520 (Quality Assurance) present additional considerations since these two citations together, if accurate, can suggest issues with leadership and facility systems. Both of these citations should be addressed in your responsive letter to the Board.
  7. Finally, if you are asked to appear before the Board’s Standards of Practice Committee, don’t go alone. Bring competent counsel because such a request means there are some serious concerns by the Standards of Practice Committee and you need to come fully prepared to respond to them and reassure the Committee of your professional competence.
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