News & Updates

"New CMS Policy on Water Management Signals Caution for Independent, Assisted Living," McKnight's Senior Living October 23, 2017

“Regulators and public health officials are sharpening their focus on waterborne pathogens in building water systems,” Goldberg Segalla partner Susan E. Smith cautions readers in a new article for McKnight’s Senior Living. “For owners and operators of Medicare-certified facilities, that means new policies and procedures must be put in place to keep out of the federal regulatory spotlight.”

In the article, Susan — leader of Goldberg Segalla’s Toxic Tort Practice Group — points to an increase in the spread of Legionnaire’s disease and other infections through water systems, and to the release on June 2, 2017 of a new Centers for Medicare and Medicaid Services certification memorandum (CMS S&C 17-30-ALL) that puts pressure on Medicare-certified operations, including hospitals and long-term care facilities, to stop and reverse this trend.

CMS S&C 17-30, which took effect immediately, “is the first regulatory policy to mandate proactive risk management measures relating to waterborne pathogens in healthcare facilities and the first such policy by CMS,” Susan explains. To enforce the policy, “CMS surveyors and accrediting organizations will review water management plans and documentation to verify that facilities have conducted a risk assessment, developed a water management plan and implemented the plan. Noncompliance may result in a citation with the CMS conditions of participation.”

“The regulatory landscape also is shifting,” Susan writes, citing New York State regulations requiring building owners to register and periodically test cooling towers, following high-profile Legionella outbreaks in 2014 and 2015. She predicts that the Joint Commission on Accreditation of Health Care Organizations will follow, adapting the Environment of Care standards to address waterborne pathogen risks.

“For regulated facilities, whether and how CMS will evaluate a water management plan and gauge its effectiveness remains an open question,” Susan notes. “The agency's tolerance for positive environmental sampling results — with and without cases of disease linked to the facility by an epidemiologic investigation — remains unknown. Similarly, the agency's ability to mandate specific remedial measures or to take action beyond issuance of a citation is not clear.” However, she advises, increased attention from regulators and public health officials means that the “incidence of infections caused by waterborne pathogens … soon may become a significant driver of cost, risk, and legal exposure.” Aside from staying on top of new regulations and other pertinent developments, “Stakeholders should evaluate the risks associated with their facilities and consider how to best adapt to the changing regulatory and legal landscape. Although proactive, preventive measures are not a failsafe, a demonstrable commitment to resident safety can mitigate risk and exposure.”

Read the article: