CMS Termination Letter: What to expect and how to prepare

If you have received a CMS Termination Letter, it has been determined that your hospital has a condition-level deficiency. This means your hospital is not in substantial compliance with one or more of the CMS Conditions of Participation. Condition-level deficiencies are more serious than element-level or standard-level deficiencies, as hospitals must be in compliance with all CoPs to continue participation in the Medicare program.

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Along with the Statement of Deficiencies (Form CMS-2567), CMS will issue an enforcement letter that states:

  • The type of survey that was performed, the date the survey was conducted and the standards/conditions out of compliance
  • Whether the hospital is on a termination track due to condition-level noncompliance and the time frame for remediation (either a 90-day or 23-day termination track)
  • The date by which the hospital is expected to be back in compliance (30 days from the date of exit, unless there is an immediate jeopardy attached)
  • Information about what the hospital must include in its credible allegation of compliance (also known as the Plan of Correction)

When a hospital has any condition-level deficiencies, one of the following two types of adverse actions will be outlined in the enforcement letter:

1. Notice of Immediate Jeopardy: The most serious adverse action, an immediate jeopardy is a situation in which CMS has determined the organization's non-compliance with one or more CoPs has caused — or is likely to cause — serious injury, harm, impairment or death to a patient. In these situations, CMS initiates an enforcement action and requires that the provider take immediate steps to remove the jeopardy. If the provider does not remove the jeopardy within 23 calendar days as stated in the enforcement letter, it is terminated from the Medicare and/or Medicaid programs.

2. Notice of Termination, Adverse Action: When CMS determines there is no immediate jeopardy, it issues a preliminary notice that the hospital's provider agreement will be terminated in 90 calendar days if the hospital does not correct the identified deficiencies or refute the findings. After receipt and acceptance of the hospital's Plan of Correction — and re-survey of the hospital to evaluate compliance with cited deficiencies — CMS can clear the termination, authorize a second survey and extend the termination date, or notify the hospital by letter of its intent to terminate the hospital's participation in the Medicare and Medicaid program (at least 15 calendar days before the effective date of the termination). CMS issues a final notice of termination and concurrent notice to the public at least two — but no more than four — calendar days before the effective date of termination of the provider agreement.

Note: CMS sometimes grants Systems Improvement Agreements [SIAs] to hospitals, which provide a greater timeframe in which a hospital can correct deficiencies and achieve compliance with the CoPs.

A hospital has 10 calendar days after receiving the Statement of Deficiencies and enforcement letter to submit its Plan of Correction, and can anticipate a re-survey before the termination date (90 or 23 days) listed in the enforcement letter.

The Plan of Correction

All hospitals that receive a Statement of Deficiencies with Notice of Immediate Jeopardy or Notice of Termination must prepare a POC — the hospital's formal written response. The POC must identify the steps that the hospital has taken or will take to resolve deficient practice(s) in a manner that a federally certified surveyor can read the POC and clearly understand how steps taken will remove the deficient practice and bring the hospital back into compliance with the regulations. The POC must also identify the timeframe in which the correction has been or will be achieved.

CMS must accept the POC in order to allow the provider or supplier to continue in the federal certification program. (Note: A hospital executive must sign the POC or it will not be accepted by CMS — a small detail, but something many hospitals overlook).

5 Critical Actions for Hospitals that Receive a Statement of Deficiencies (CMS Form 2567) with Notice of Immediate Jeopardy or Notice of Termination

1. Make sure you're aware of all critical dates including:

  • Plan of Correction due date
  • Self-described action compliance dates
  • CMS-defined termination date

2. Be conservative. Do not over-commit to surveyors!
Commit only to things your organization can achieve within 30 days. Do not implement process changes that cannot be sustained. Note that:

  • The 30-day commitments must include implementation, performance, and monitoring.
  • Education and policy change are NOT considered implementation or demonstrated performance/change in practice. These are actions that must then be monitored to ensure improvement has occurred.
  • It is perfectly acceptable to have the POC rejected; rejection opens up a communication avenue to allow a discussion about more narrow issues, which will help the hospital to focus improvement actions and inform CMS (via the State Agency) of acceptable hospital practice.

3. Focus your POC attention on "The Big Issues" (Hint: The examples in the Statement of Deficiencies are often not "the Big Issues")

  • Address the process, not the examples
  • Answer the question, "Why did the process/policy/practice fail?"
  • Answer the question, "Was this an isolated incident or is there a broader, underlying issue?"
  • Have evidence that you've done exactly what you said you would do in your POC

4. Uncover and correct the underlying issues
The fact that your organization had a problem during a CMS survey is a strong indicator of underlying issues. Here are five possible culprits:

  • Poor understanding of CoPs
  • Failed (and misguided) attempts to comply with the standards (Note: Hospitals most often over-comply with the regulations. As a rule, you should never set an expectation that exceeds federal, state or accreditation requirements unless the added process improves quality, safety, or reimbursement.)
  • Weak compliance process
  • Poorly designed policy
  • Inadequate process training

5. Beware of closely nested standards in the same condition that was cited:

  • Often, hospitals focus all attention on the specific issue cited. This creates two potential challenges:
    • If you were cited for restraint orders and you correct this challenge by focusing all attention on orders, you may be vulnerable to other restraint-related issues such as ongoing monitoring. 
    • Don't lose sight of other standards in the condition cited. You may very well clear the actual standard cited, but on re-survey, be in violation of another standard in the condition, such Restraint and Grievances (both in Patient Rights) and Medication Administration and Care Planning (both in Nursing).

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