Update: Concerns growing about CMS crackdown on survey early alerts and complaint process

CMS ordered all nine accrediting organizations (AO) to quit giving hospitals or other healthcare organizations even a 15-minute warning that surveyors will be onsite, and there will be no more blackout dates.

The orders came on June 16 in a surprise joint memo from CMS’ Center for Clinical Standards and Quality and the Quality, Safety & Oversight (QSO) Group that said it was re-enforcing rules long outlined in CMS’ State Operations Manual (SOM) and previously mandated in a memo from 2009.

While the new memo was not initially publicly released by CMS, a copy was made available online by DNV Healthcare, as part of Advisory Notice No. 2023-HC08, on June 29.

The memo also states that there will be no more exemption dates allowed for surveys, that complaint investigations must be conducted onsite, and information from complaint reports must be provided to the patients or their representatives leveling the complaint.

In addition, even communication about survey agendas or other survey processes within the six months before an organization’s accreditation is to be renewed is also prohibited, says CMS.

All the changes, says CMS, support the idea that organizations need to remain survey ready at all times.

“An unannounced survey provides an opportunity to assess how the provider or supplier typically operates. If a provider or supplier knows the exact time a surveyor will be onsite, even shortly before their arrival, it may temporarily adjust its potentially noncompliant and typical practices (e.g., those regarding staffing),” said the memo. “This might then provide a picture of the facility to surveyors that is not representative of the quality and the safety of the care typically provided to the facility’s patients.”

Any AO who is found in violation of the requirements could lose its status to deem or approve hospitals and other organizations to participate in Medicare, according to CMS.

The changes are effective July 14.

By then, hospitals who have in the past depended on the morning-of alert that a survey is imminent will need to have a process in place to notify leadership and others that surveyors are already on site. Organizations will also need procedures in place to account for leadership or other compliance personnel who are on vacation or otherwise unavailable to participate in the survey, says Jennifer Cowel, RN, MHSA, CEO of Patton Healthcare Consulting and a former Joint Commission executive and nurse surveyor.

The four hospital AOs impacted by the crackdown are The Joint Commission (TJC), the Accreditation Commission for Health Care (ACHC, formerly HFAP), DNV Healthcare and the Center for Improvement in Healthcare Quality (CIHQ).

All of the AOs say they have notified clients and will be reviewing their policies and practices, which will then have to be approved by CMS, all before July 14.

CIHQ alerted its clients and provided them with a webinar for information, says Traci L. Curtis, RCP, HACP, CIHQ’s Executive Director of Survey Operations. Similarly, ACHC said it sent communication to clients about the memo as well.

(TJC was the only AO not to immediately respond to queries by the Accreditation & Quality Compliance Center, but others indicated a statement from TJC has gone out to its accreditation clients.)

Here is a breakdown of what the memo is likely to mean to hospitals.

No early notifications

TJC, the largest of the AOs, has had a practice of posting the imminent arrival of surveyors on a hospital’s TJC intranet before 8 a.m.—often as early as 7 a.m.—and include names and photographs of the TJC personnel.

CIHQ would send out a similar early alert email on the day of the survey. DNV and ACHC say they do not provide day-of alerts.

The practice of early alerts and surveyor biographies dates back at least to the early 2000s, according to Kurt Patton, MS, RPh, pharmacist, founder of Patton Healthcare Consulting, and former director of accreditation services for TJC.

“This practice was developed a few years after the 9/11 terrorist attacks, when unknown individuals, pretending to be surveyors started to appear at organizations seeking to ‘conduct a survey,’ and then ask to be escorted to certain sensitive locations within hospitals The perception at the time was that these unauthorized individuals were scouting out potential terrorist activities in hospitals,” says Patton.

Alternative arrangements may be needed “to establish the bona fides of surveyors who show up at the beginning of the day or after hours requesting to see your liquid oxygen storage or nuclear medicine department’s hot lab,” says Patton.

Many compliance managers have a process of checking the website every morning during the survey window, and then sending out an alert throughout the hospital and to leadership. That will have to change, notes Cowel.  

Similarly, hospitals will need a new plan now that blackout dates are not allowed, says Cowel.

Blackout dates

Besides prohibiting blackout dates, the CMS memo also says AOs need to cease all survey-related communication at least six months before an organization’s survey renewal date, again to prevent early survey alerts.

“CMS understands some administrative business practices (such as gathering relevant information on the facility’s demographics, operating hours, etc.) require AOs to communicate with facilities prior to conducting a survey. However, CMS expects that these practices shall cease at least six months prior to the end of the facility’s survey cycle and that dates and times of a pending survey are not provided to the facility as part of these administrative communications,” said the memo.

All of the hospital AOs say that they have worked with hospitals to block out survey times when leadership might not be on site, because of planned events like working retreats or major religious holidays.

There is likely to be some flexibility, however, if a hospital experiences a disaster, a worker strike, or other unanticipated event during that six-month window, say most of the AOs.

In an email, an ACHC spokesman said they dropped the blackout dates “in favor of accommodation requests in January of this year. We will be notifying organizations that we will not accept accommodation requests going forward.”

“We do hope that they will communicate a significant extenuating circumstance that might negatively impact a survey. An example would be the installation of a new [electronic medical record system (EMR)]. Those issues would be evaluated on a case-by-case basis,” said the ACHC email.

CIHQ also said it would work with clients during an emergency.

DNV noted in its advisory that “due to the forward-looking nature of survey exclusion requests and our scheduling lead time of 90 days, DNV will no longer accept or acknowledge updates to survey exclusion weeks, effective with this Advisory Notice.” In addition, “exclusion requests that have already been submitted are subject to reconsideration or removal.”

The lack of blackout dates means hospitals will need a back-up plan in case TJC shows up during a time when leadership is off campus or someone is otherwise out of pocket, says Cowel and Patton.

The blackout dates “were useful for identification of religious holidays observed by key leaders, state-only holidays that the accreditor may not be familiar with, or even leadership and board retreats,” notes Patton. “While patient care takes place every day not all leaders are present every day and accredited organizations will need to ensure that access to key survey materials or documents is always available through an identified back up.”

Complaint investigations

CMS was also adamant that complaint investigations should be conducted onsite, especially if the complaint involved a likely condition-level deficiency or immediate jeopardy situation, as outlined in the SOM.

However, lesser complaints could wait until the next survey date. But all complaints should be investigated on site, and again without prior communication with the hospital, according to the memo. Communication is allowed only with the person filing the complaint.

“If a complaint is triaged at non-immediate jeopardy (IJ) medium or non-IJ low, the SA must investigate no later than when the next onsite survey occurs. In reviewing multiple AO applications for deeming authority, CMS has found that many AOs contact facilities prior to onsite investigations, or conduct offsite complaint investigations, both of which are inconsistent with the regulations and SOM. While contact with the complainant to receive additional input to determine if an onsite survey should be expedited is appropriate, contacting the facility is not,” says the memo.

“AOs should closely review their process for complaints, including intake (e.g., receipt of the complaint) and information gathered from the complainant, to determine the level of triage for conducting a survey. If an AO triages a complaint at non-IJ medium or low, the AO should investigate when the next onsite survey is scheduled or earlier, if appropriate. Administrative reviews or offsite complaint investigations and contacting facilities in advance of a complaint survey are inconsistent with CMS’s survey processes for SAs and, therefore, not comparable with or equivalent to CMS as required” under CMS Conditions of Participation, says the memo.

In addition, the report back to the complainant must include, among other things, “information regarding whether or not noncompliance was identified during the complaint investigation; identify where the complainant may find the Statement of Deficiencies and Plan of Correction; and, describe how the complainant may request a copy of the investigation report, subject to Federal and State disclosure requirements,” said CMS.

Concerns expressed by hospitals and AOs in the general aftermath of the memo’s release included how much information would be provided to complaining patient, and the length of time between when the patient was in the facility and when it was investigated.

“Routinely, accrediting organizations evaluate complaints about organizations that are directed to their attention. Sometimes these complaints are so well documented and significant that they result in an immediate ‘for-cause’ survey,” says Patton. “At other times they describe a lower-level concern that may or may not be real and the accreditor may call or email seeking details about the care. CMS has indicated that this too must stop. Lower-level issues can be deferred for follow up at the next survey but remote fact gathering is prohibited.”

Hospitals will have to keep information around about potential complaints for a year or more, especially if the new policy creates a backlog of investigations by the AO, notes Cowel.

For a copy of the CMS memo as well as the full DNV advisory, go to the DNV website, and look for Advisory Notice No. 2023-HC08, dated June 29: https://www.dnv.us/supplychain/healthcare/advisory.html.