Federal Government Shutdown – What Now?

Angie SzumlinskiUncategorized

Yes it has happened, the Federal government has shut down and many aspects of life as we know it have been affected.  HealthCap has received many questions from providers as to how this shutdown affects the day-to-day operations in our homes.  In an effort to ensure continuity of care for the residents entrusted to us, the Department of Health and Human Services, Centers for Medicare and Medicaid Services released a memorandum (Ref: S&C: 14-02-ALL) on October 1, 2013.  This memorandum outlines the contingency plan for state survey & certification activities. 

The goal of CMS is to protect Medicare and Medicaid beneficiaries against immediate dangers to life and health and prevent suppliers from experiencing harm that would threaten their ability to provide healthcare services that are vital to Medicare and Medicaid beneficiaries. 

The following activities are considered to be “essential” and will be continued during the shutdown to ensure basic public protections, subject to the terms outlined below:


1. Complaint Investigations Alleging Harm: Complaints that are triaged as credible allegations of immediate jeopardy (IJ) or harm to an individual should continue to be assessed and investigated according to standard CMS protocols except that, for the duration of any federal government shutdown, it is not necessary for State survey agencies to obtain prior CMS Regional Office approval to conduct a complaint investigation for a deemed hospital (RO approval is normally required only for complaint investigations in deemed hospitals).


2. Certain Federal Enforcement Actions: Enforcement actions that result from complaint investigations noted in the above paragraph should continue to be performed if the complaints are substantiated with a finding of immediate jeopardy or actual harm, including continued action by the infrastructure necessary to communicate and complete the enforcement, such as placement of a temporary manager or onsite monitor in a nursing home. Requests for federal approval necessary for federal Medicare enforcement actions should be directed to the federal contact noted at the end of this memorandum.


3. Revisit Surveys Approved by Exception and Necessary to Prevent Termination: State survey agencies may request approval to conduct a revisit when:

(a) A provider or supplier has alleged compliance with CMS requirements (pursuant to a prior determination of noncompliance); and

(b) The revisit survey is necessary to determine compliance and prevent the scheduled Medicare termination of a provider or supplier; and

(c) 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.

Requests for any such exception should be sent to the federal contact noted at the end of this memorandum, except that CLIA revisits should follow normal CMS protocols.


4. Immediate Threats to Life or Safety: State SAs should take action to prevent or 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, such as survey & certification activities that may be necessary during a declared public health emergency to prevent injury or harm to beneficiaries.

Of note, neither federal nor State background check program activities are affected by the federal government shutdown, as these functions have been funded separately from the annual appropriations process.


The memorandum also states that survey & certification functions normally conducted on behalf of CMS that do not fall into one of the above categories should not be performed during the period of a federal government shutdown. Examples of Medicare activities that should not be continued during such time include:


1. Standard Surveys: No Medicare recertification surveys should be performed.


2. Certain Revisit Surveys: Revisits, including both onsite and desk revisits, that are not required to prevent termination of Medicare participation should not be conducted. Among those that should not be conducted are revisits (related to establishing regulatory compliance) that would end a per-day civil monetary penalty or denial of payment for new admissions. Subsequent to a government shutdown we plan to issue instructions as to the manner in which those situations would be handled.


3. Initial Surveys: No Medicare initial surveys should be performed.


4. Initial Certification via Deemed Status: States should not take any action on initial certification kits (e.g., compiling the documentation for an initial certification kit) for applicants to participate in Medicare who seek to demonstrate compliance via accreditation under a CMS-approved Medicare accreditation program.


5. Validation Surveys: No Medicare surveys designed to validate performance of a CMS-approved accrediting organization should be performed. If you have been assigned a validation survey and have not yet conducted the validation survey, we will communicate with you at the end of any federal government shutdown whether the survey should be conducted or whether a substitute provider will be selected.


6. Certain Complaint Investigations: No Medicare complaint investigations should be performed, except those alleging immediate jeopardy or actual harm to individuals, as noted in this memorandum.


7. Patient Safety Initiative (PSI) Pilot Surveys: No hospital PSI surveys using the QAPI, infection control and discharge planning tools should be performed.


8. MDS or OASIS: No minimum data set (MDS) or OASIS activities should be conducted except those necessary to maintain provider reporting.


9. Informal Dispute Resolutions (IDRs): No IDRs or Independent IDRs should be conducted unless they are pursuant to the excepted complaint investigations noted in section B of this memorandum for which there is adverse action taken against the facility or provider.


10. New CMP-Funded Improvement Projects: No new improvement projects funded by collected civil monetary penalty funds should be implemented unless approval has already been granted by the CMS Regional Office. Projects already approved by CMS are not affected and may continue, since such projects require no further federal action.


In the event of a federal government shutdown that persists for more than a few weeks, CMS will communicate further instructions with regard to any special provisions that are appropriate for survey & certification activities.

As a follow up to the many questions posed, CMS released a response on October 4, 2013 regarding the shutdown and contingency plan.  This document can be accessed using the link below.  As always, feel free to contact your HealthCap Risk Manager should you have questions regarding the contingency plan or go to www.CMS.gov to access the memorandum in its entirety.  Thank you!