NCHR Comments on CMS’ Proposed Rule On Strengthening the Oversight of Accrediting Organizations and Preventing Conflict of Interests, and Related Provisions

April 16th, 2024

We appreciate the opportunity to comment on CMS’ proposed rule: “Strengthening Oversight of Accrediting Organizations (AOs) and Preventing AO Conflict of Interest, and Related Provisions.” NCHR supports CMS’ proposed rule and policies to increase oversight of AOs by addressing conflicts of interest; establishing standards, processes, and definitions for state surveys and unannounced surveys; and revising the AO validation survey program.

The National Center for Health Research (NCHR) is a nonprofit think tank that conducts, analyzes, and scrutinizes research on a range of health issues, with a particular focus on which prevention strategies and treatments are most effective for which patients and consumers. We do not accept funding from companies that make products that are the subject of our work, so we have no conflicts of interest.

Conflicts of Interest:
NCHR is concerned that the longstanding practice of Medicare AOs offering both accrediting and consulting services, along with the financial relationships involved in this work, undermines the integrity and safety of the accrediting organization process and is a disservice to public health.

State-level audits of healthcare facilities have uncovered serious issues that Medicare accrediting organizations have missed, creating high disparity rates between the AO and audit reviews. The disparity rate is a key metric used to evaluate whether Medicare accrediting organizations are accurately identifying and correcting deficiencies. However, the most recent data provided by CMS shows disparity rates at 46% for hospitals, 57% for psychiatric hospitals, 44% for critical access hospitals, 18% for home health agencies and hospices, and 35% for ambulatory surgery centers. Thus, we strongly support CMS’ proposal to limit and prohibit the ability of AOs to provide fee-based consulting services to any of the providers it accredits. This will undoubtedly improve the integrity of the accrediting process and also improve patient safety.

In addition to the policies proposed by CMS, we urge CMS to revoke accreditation in Medicare AOs when state inspectors find at least one severe violation and modify or revoke accreditation for repeat violations of any severity. Further, we advise CMS to revise the review process for Medicare AOs to better identify potential or perceived conflicts of interest as part of the application and renewal processes. This is a fundamental step in strengthening the integrity and safety of the Medicare accrediting organization approval process and preventing organizations with conflicts of interest from certifying hospitals. Adding provisions that require Medicare AOs to disclose information about consultative services provided by the AO to facilities that the AO accredits would greatly support CMS’ mission to limit conflict of interests, by enabling CMS to identify consultative relationships that create conflicts of interest early on.

AO Validation Survey Program:
We support CMS’s proposed changes to the AO validation survey program to include a direct observational model in addition to the traditional model of completing AO validation surveys. Specifically, we agree that it is important for survey agency staff and CMS surveyors to conduct a full review of the organization around 60 days after the organization completes accreditation, in order to evaluate the performance of the AO. We also support CMS’ proposal to incorporate a direct observational model that allows survey agencies to accompany the AOs during AO surveys, so that they can observe and evaluate the AO survey process. This will allow for greater transparency and help to decrease the current disparity between state-led survey findings and AO-led survey findings.

In addition, we encourage CMS to include provisions specifying when hospitals or providers that receive one or more condition-level citation on either type of validation survey will lose their deemed or accredited status. We also recommend that in these cases that the hospitals or provider be subject to ongoing review by the state survey agency until demonstrating compliance.

Unannounced Surveys:
NCHR also agrees with CMS that all AO surveys should be unannounced in order to prevent providers and facilities from making unusual preparations for the survey that do not represent the ongoing typical condition of the facility or the true nature and quality of care provided. There have been prior cases of AOs undertaking unusual cleaning activities, painting, clearing obstructions from halls and entrances, denying leave to staff during that time or calling staff back to inflate staffing availability, and re-reviewing medical records outside of what is normally done, greatly limiting the rigor and reliability of AO surveys.

To further strengthen the survey process, we also advise CMS to prohibit the use of black-out dates and pre-arrival notifications that were standard in the past. For the survey to be truly reflective of day-to-day practice, AOs should not, in any way, be able to predict or prepare for their survey.

Summary:
NCHR strongly supports CMS’ proposed rule and policies to increase oversight of Medicare accrediting organizations, because the proposed changes will help improve the integrity and safety of these facilities. A summary of our key recommendations includes:

1. Revoke accreditation in Medicare AOs when state inspectors find at least one severe violation and modify or revoke accreditation for repeat violations of any severity.
2. Require AOs to disclose information about consultative services that have been provided to accredited facilities to help CMS identify conflicts of interest early on.
3. Prohibit the use of black-out dates and pre-arrival notifications for unannounced surveys so that accredited facilities are evaluated under conditions that are representative of their day-to-day practice.
4. Revoke or modify deemed or accredited status for hospitals or providers who receive condition-level citations on validation surveys and require ongoing review by the state survey agency until compliance is demonstrated.

Thank you for the opportunity to share our views on these important issues.

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