JA-GECSurveysDecember 22 2020 final-pwc.pdf

DEPARTMENT OF VETERANS AFFAIRS

Justification and Approval

For Other Than Full and Open Competition

1. Contracting Activity:

Department of Veterans Affairs (VA), Office of Acquisition Operations, Strategic Acquisition Center (SAC), 10300 Spotsylvania Avenue, Suite 400, Fredericksburg, VA 22408.

2. Description of the Action:

VA is in urgent and immediate need for the ability to assess, monitor, and conduct oversight of State Veterans Homes (SVH) to prevent loss of life and decrease mobility and mortality of Veterans.

Due to the unprecedented impact of the COVID-19 pandemic, the ability of the VA to safely perform on-site surveys at SVH facilities has been impacted. In an effort to contain the spread of the virus and optimize patient and staff safety, the SVH Administrators and Geriatrics and Extended Care (GEC) recognize the importance of alternative methods for quality oversight, including the option for virtual surveys to mitigate the introduction of COVID-19 into the SVHs and protect this vulnerable population.

In order to address the urgent need to oversee the quality of care for high risk Veterans during a pandemic, the SAC, on behalf of Veterans Health Administration (VHA) requests a sole source procurement of Site Surveys for State Veterans Homes (SVH).This effort is proposed to be awarded to Long Term Care Institute, Inc.,6502 Grand Teton PLZ STE 107, Madison, WI 53719. This requirement is proposed as an emergency award, Firm Fixed Price Requirements Contract for six months with two 3-month option periods. The estimated total ceiling for this contract action is $4,991,150.00.

3. Description of Supplies or Services:

There are currently over 157 State-Owned and Operated Veterans Homes across the United States;

this includes all 50 states and territories, and possessions of the United States, and the Commonwealth of Puerto Rico. Additional SVHs may be added during this contract. The State- Owned and Operated Veterans Homes primarily provide nursing home care, domiciliary care, and adult day health care.

The VA requires services of a vendor to conduct surveys at SVHs to provide oversight and identify compliance with VA standards in 38 Code of Federal Regulations (CFR), Part 51. VA surveys of SVHs are required by law and reflect standard practice in community nursing homes. The national emergency of the COVID-19 pandemic has required that on-site surveys be postponed due to concerns about infection, patient safety, and the continued surge and escalating prevalence rates of COVID-19 across the country. VA can no longer continue to postpone surveys and must have a vendor that can complete virtual surveys.

VA has a distinct role in providing oversight and conducts unannounced surveys for the SVHs, whether they are certified or accredited under Centers for Medicare and Medicaid Services (CMS), or The Joint Commission. The SVHs offer an array of services including, but not limited to:

• Short stay services such as hospice and palliative care, skilled nursing and rehabilitation;

• Long stay services such as dementia care;

• Wound Care; and

• Mental health services

The Contractor provides all personnel, equipment, supplies, facilities, transportation, tools, materials, supervision, and other items and non-personal services necessary to perform VA federal surveys as defined in the Performance Work Statement.

The objective of this emergency contract is to supply full survey services from a vendor with the appropriate CMS survey expertise to conduct surveys for SVHs, including virtual due to the continued impact of COVID-19 pandemic that has restricted on-site surveys. The purpose of these surveys is to:

a. Identify serious concerns with quality of care through direct observations, either in person or utilizing a virtual modality;

b. To provide consultative services on best practices and the standards of care;

c. To educate and reinforce SVH staff on Veteran-centered care; and

d. Recognize SVHs and certify SVHs for compliance to the federal regulations in order to continue to receive federal per diem payments.

Based on COVID status at the SVH and community prevalence, the survey process modality will be determined for each SVH and will be one of the three survey options below in which the vendor must be immediately equipped and able to perform:

1.) On site review, 2.) Blended Hybrid of limited number of surveyors on site, or 3.) A full virtual modality.

Survey teams will identify compliance with all clinical and life safety standards in 38 CFR Part 51.

For blended hybrid or virtual surveys, observations of direct care or resident and staff interactions at the SVHs, will be collaborative utilizing all available technology components.

The services under this contract include the surveying and evaluation of SVH compliance to all applicable standards to each level of care according to 38 CFR Part 51. Surveyors used by the Contractor must be experts in the field of long-term care and must be fully engaged in the CFR. The skill set required of the SVH vendor’s personnel includes long-term care surveyor experience or expertise to include either state, private sector or in the CMS survey process for conducting surveys of nursing homes; quality measures generated by the Resident Assessment Indicator (RAI)/Minimum Data Set (MDS); and the ability to utilize and correlate CMS surveys to the Federal Regulations for nursing home, domiciliary and adult day health care programs.

The selected vendor will conduct all types of surveys and all survey modalities and will require the qualifications necessary to review activities at nursing homes, domiciliary, or adult day health care programs. Also, to assure it operates within state and federal guidelines providing high quality care to residents and recommend areas to improve as necessary. The vendor will be responsible for reviewing and scoring the clinical and life safety standards in 38 CFR Part 51: “Per Diem for Nursing Home, Domiciliary, or Adult Day Health Care of Veterans in State Homes.”

To fulfill the services outlined in the contact, the vendor is required to:

1. Create a survey report that cites specific deviations from professional or community standards of care and federal regulations.

2. Perform Annual, Recognition or For Cause surveys for any of the three levels of care; nursing home care, domiciliary care, or adult day health care.

3. Conduct a survey with full knowledge and competency and preparedness for any survey modality required during the national public emergency to include an on-site survey, virtual survey or hybrid virtual survey.

4. Statutory Authority Permitting Other than Full and Open Competition:

The statutory authority permitting other than full and open competition is 41 USC §3304(a)(1), as implemented by FAR 6.302-2 entitled, “Unusual and Compelling Urgency””

5. Demonstration Rational Supporting Use of Authority Cited Above:

Urgency and Immediate Need of Requirement:

Due to the unusual and unprecedented impact of the COVID-19 pandemic, the ability of the VA to safely perform on-site surveys at State Veterans Homes (SVH) facilities has been impacted. This has created and urgent and compelling need for the ability to assess, monitor and conduct oversight of SVHs to prevent loss of life and decrease morbidity and mortality of Veterans. In an effort to contain the spread of the virus and optimize patient and staff safety, the SVH Administrators and GEC recognize the urgent need for immediate of alternative methods for quality oversight. This includes the option to conduct annual, for cause and recognition surveys using a virtual modality to decrease the risk of introducing COVID-19 into the SVHs by surveyors. This virtual option will protect this vulnerable population who are at most risk of death from COVID-19.

Delay in award of a contract for addition of virtual surveys would result in the increased risk to Veterans residing in SVHs of potential serious complications and injury, including death. The need for the ability to assess, monitor and conduct oversight of SVHs to prevent loss of life and decrease morbidity and mortality of Veterans is crucial. Therefore, necessitating the immediate implementation of virtual surveys due to the COVID-19 and the inability to conduct on-site surveys under a previous contract

COVID-19 has affected several SVHs that have self-reported active and recovered residents to GEC since the beginning of the pandemic. Currently, 123 SVHs or 78% of homes have had the COVID virus in the home affecting either residents or staff. Over 3600 residents have been COVID-19 positive with over 1300 deaths. The death rate is approximately 36% of those infected.

Although there were three vendors in the marketplace who indicated capability to conduct surveys using the CMS process, LTCI appeared to be most willing and likely to be able to conduct virtual surveys immediately and provide services to meet all requirements to safely and urgently implement criteria needed to protect our most vulnerable Veteran population who are permanent residents in these long-term care facilities. Any further delay in implementing this process will cause risk of serious injury to these Veterans.

0.62% of the U.S. population reside in nursing homes and assisted living facilities but that 0.62% of the population accounts for an astounding 42% of all COVID-19 deaths in the US.

The coronavirus pandemic has swept through U.S. nursing homes resulting in at least 25,923 resident and 449 staff deaths with 800% of nursing homes reporting by June 1, 2020. (Nurse Staffing and Coronavirus Infections in California Nursing Homes. Policy, Politics, & Nursing Practice 21, 3(2020):174-186.)

Veterans Affairs Central Office (VACO) GEC Program Office is responsible for scheduling the unannounced annual surveys for SVH. Due to the pandemic and the Presidential declaration of a public national emergency, annual surveys for SVH were postponed beginning in March 2020 due to COVID and infection risk.

SVH Regulatory Requirements:

Per §51.31(a), both before and after a home is recognized and certified, VA may survey the home as necessary to determine whether it complies with applicable regulations. VA will provide advance notice before a recognition survey, but advance notice is not required before other surveys. A survey, as necessary, may cover all parts of the home or only certain parts, and may include review, audit, and production of any records that have a bearing on compliance with the requirements of this part (including any reports from state or local entities), as well as the completion and submission to VA of all required forms. The Director will designate the VA officials and/or contractors to survey the home.

38 U.S. Code §1742 Inspections of such homes; restriction on beneficiaries states “The Secretary may inspect any State home at such times as the Secretary deems necessary. No payment or grant may be made to any home under this subchapter unless such home is determined by the Secretary to meet such standards as the Secretary shall prescribe, which standards with respect to nursing home care shall be no less stringent than those prescribed pursuant to section 1720(b) of this title.”

https://www.law.cornell.edu/uscode/text/38/1720#b

Background:

The GEC scheduled 18 annual surveys in March, but due to the onset of the pandemic and Presidential declaration of a public national emergency, 15 were postponed, 3 of them being completed early in the month. VA paused surveys to protect Veterans and staff. GEC planned for 16 annual surveys in April but postponed all. GEC planned for 16 annual surveys in May but postponed all. GEC planned for 13 annual surveys in June but postponed all. In June, several requests were made to VA from internal Network and Medical Center Directors, as well as State Directors and SVH Administrators, who voiced concerns and complaints that VA was restarting annual surveys despite no relief from COVID and the challenges for states on Governors mandates on travel and recent spikes in COVID. States did not want visitors bringing in the potential virus. SVH surveys began in July 2020, for Recognition surveys and For Cause surveys only. All annual surveys remained to be postponed. GEC scheduled 9 surveys in August, 5 cancelled, 2 For Cause and 2 Recognition surveys completed. GEC scheduled 8 surveys in September, 7 cancelled, 1 For Cause completed. No surveys scheduled in October due to uptick of COVID, more than one-half of states with travel restrictions, and virtual surveys not in scope of contract. GEC scheduled 3 for cause surveys in November and 3 were completed.

6. Efforts to Obtain Competition

On December 8, 2020 a Request for Information (RFI) for Unannounced Surveys of State Veterans Homes for the VA was publicized on beta.SAM.gov to gauge market availability of capable and responsible vendors that can successfully satisfy this requirement.

During market research, other vendors in the marketplace indicated they could conduct surveys using the CMS process, however, LTCI appeared to be most willing and likely to be able to conduct virtual surveys immediately and provide services to meet all requirements to safely and urgently implement criteria needed to protect our most vulnerable Veteran population who are permanent residents in these long-term care facilities. Any further delay in implementing this process will cause risk of serious injury to these Veterans.

Specifically, alternative vendors did not express the immediate ability to provide the necessary services for the required addition of virtual surveys for SVHs to protect the health and welfare of the Veterans.

While competition is possible, the nature of the requirement compels VA to acquire these services using a sole source who can immediately begin virtual surveys in SVHs.

7. Fair and Reasonable Determination:

No award shall be made until the Contracting Officer determines the cost to the Government to be fair and reasonable. This determination will be based on a comparison of current contract pricing, past proposal submissions (if available), other information made available, and an Independent Government Cost Estimate.

8. Market Research:

Homes for the Department of Veterans Affairs was publicized on beta.SAM.gov to gauge market availability of capable and responsible vendors that can successfully satisfy this requirement. RFI was due on December 15, 2020. Four potential vendors responded to the RFI. They are the following:

1. Ascellon Corporation

2. Health Management Solutions, LLS (HMS)

3. Bracane Company

4. Long Term Care Institute, Inc

9. Other Facts:

Nurse Staffing and Coronavirus Infections in California Nursing Homes. Policy, Politics, & Nursing Practice 21, 3(2020):174-186.

• The coronavirus pandemic has swept through U.S. nursing homes resulting in at least 25,923 resident and 449 staff deaths with 800% of nursing homes reporting by June 1, 2020.

• 85% of residents are older than age 65 and over 40% are aged 85 and older.

• Over 60% of residents need assistance with four or more activities of daily living (ADLs) and/or have cognitive impairments.

• Shared rooms with two or more residents and congregate meals increase risk of infection.

• Inadequate staffing and prior infection control violations were cited as 2 reasons for infection rates.

i.40% of nursing homes with COVID-19 positive residents had been previously sited for infection-control infractions ii.The GAO reported that 82% of U.S. nursing homes had an infection prevention and control deficiency between 2013-2017.

Opinion: We Demand Accountability After the Paramus Veterans Home Crisis. The Record (Video).25 August. Reps. Bill Pascrell (D-NJ) and Josh Gottheimer (D-NJ). Woodland Park NJ (2020).

• “The inspectors detailed shocking violations of health and safety measures, including a failure to maintain social distancing and to separate infected residents from the healthy, failure to ensure all residents wore masks, woefully inadequate amounts of PPE distributed to staff, lack of proper training for personnel, and a total breakdown in infection control procedures — including unsanitary practices in dining and other areas (reported source: CMS Federal inspection report).”

• “Senior leaders at the department, including the director of the Division of Veteran’s Healthcare Services, must answer for why they failed to prepare the facility for an outbreak, and did not have or request adequate supplies of masks and face coverings required to protect residents and staff.”

• “… we are actively working on increasing federal oversight of state-run veterans’ homes going forward.”

COVID-19 Takes Toll at Mississippi Veterans Home: ‘I Just Wanted My Dad to Have a Chance’ June 8, 2020 https://pulitzercenter.org/reporting/covid-19-takes-toll-mississippi-veterans-home-i-just-wanted-my-dad-have-chance

Care Quality and COVID-19 testing concerns at the Indiana State Veterans Home (ISVH) July 22, 2020 through the Indianapolis metropolitan ABC https://www.theindychannel.com/news/call-6-investigators/health-and-safety-concerns-at-indiana-veterans-home-amid-lack-of-covid-19-cases

VA has supported 86 SVHs across 38 states through Fourth Mission activities, deploying 1,011 VA staff to assist with clinical care, testing, training and infection control. Local VA medical centers (VAMC) and SVH leadership engaged in regular contact to ascertain the status of SVHs. During those conversations, SVH administrators have needed assistance in activities related to COVID-19 such as procedures on reliable resident and employee testing, actual testing supplies and equipment and recommendations for how to alter operations in the event of COVID-19-positive staff or residents. VA also provided recommendations and best practices for space management in terms of ward re-organization, staffing assignments, PPE usage and quarantine/isolation requirements.

The staff providing assistance under a Fourth Mission Assignment are there to combat a specific crisis, and not to assess compliance with federal regulations or survey the facility. By conducting virtual annual and for cause surveys, these areas can be thoroughly assessed for compliance by trained long term care surveyors.

10. Listing of Sources that Expressed, in Writing, an Interest in the Acquisition:

Homes for the Department of Veterans Affairs was publicized on beta.SAM.gov to gauge market availability of capable and responsible vendors that can successfully satisfy this requirement. RFI was due on December 15, 2020. Four potential vendors responded to the RFI. They are the following:

1. Ascellon Corporation

2. Health Management Solutions, LLS (HMS)

3. Bracane Company

4. Long Term Care Institute, Inc

11. Actions to Overcome Barriers to Competition:

A prior contract had been awarded in 2013 and in place to conduct unannounced surveys at SVHs prior to President Trump declaring a national public emergency and nationwide pandemic in March 2020. The prior contract was for a vendor to conduct all types of surveys; Recognition, Annual and For cause. Surveyors had qualifications to review activities at nursing homes, domiciliary or adult day health care programs and assure it operated within state and federal guidelines providing high quality care to residents and to identify areas of noncompliance. The surveys to be conducted were on-site surveys by a team comprised of the vendor and two VA staff from the medical center of jurisdiction. The contract did not allow in the scope of work to conduct any type of virtual or hybrid virtual survey and the contract could not be modified as it would have been an out of scope modification.

https://pulitzercenter.org/reporting/covid-19-takes-toll-mississippi-veterans-home-i-just-wanted-my-dad-have-chance https://pulitzercenter.org/reporting/covid-19-takes-toll-mississippi-veterans-home-i-just-wanted-my-dad-have-chance https://pulitzercenter.org/reporting/covid-19-takes-toll-mississippi-veterans-home-i-just-wanted-my-dad-have-chance https://www.theindychannel.com/news/call-6-investigators/health-and-safety-concerns-at-indiana-veterans-home-amid-lack-of-covid-19-cases https://www.theindychannel.com/news/call-6-investigators/health-and-safety-concerns-at-indiana-veterans-home-amid-lack-of-covid-19-cases https://www.theindychannel.com/news/call-6-investigators/health-and-safety-concerns-at-indiana-veterans-home-amid-lack-of-covid-19-cases https://www.theindychannel.com/news/call-6-investigators/health-and-safety-concerns-at-indiana-veterans-home-amid-lack-of-covid-19-cases

Since March 9, 2020, 1 full 90-day work stoppage and 1 60-day partial work stoppage order was issued to that vendor. Prior to the pandemic, at least 158 annual surveys, up to 10 recognition and 6 For cause surveys would normally occur. In calendar year 2020, only 12 annual and 1 recognition on site surveys took place between January 1, 2020 and March 9, 2020. As the COVID-19 pandemic began and then continued over the summer, fall and then winter, COVID cases and surge patterns began to rise across the country requiring any scheduled on-site surveys to be postponed or cancelled.

Only a total of 7 For cause onsite surveys were completed as of the date of this J&A

In an article dated December 9, 2020, a new COVID-19 spike in America's long-term care facilities emerged in the West and Northwest with both regions reporting their highest numbers of new cases in the past six months. Nationally, deaths increased by 27% from previous week with more than a third of long-term care facility deaths in the Midwest.

With no end in sight from the pandemic, onsite surveys cannot yet be conducted to protect the lives and health of our most vulnerable population yet, Veterans who are in need of nursing home care. A stop work order is only allowable for temporary reasons and not intended to be repeated over time according to the FAR. Because the vendor could not meet the expectations of the contract for onsite surveys, and the contract could not be modified to conduct surveys at SVHs outside an onsite survey modality only, the contract was terminated for convenience by the government.

It has been proven by other external accreditation agencies who are considered industry accreditation standard experts, that those agencies have had to conduct a complete overhaul of their survey process due to the pandemic crisis. There is no past historical data in this country to reflect on the necessary changes that need to be made in an external review environment. All external agencies, federal and private, are paving a new way forward in 2020. For example:

a. The Joint Commission (TJC) Nursing Care Center Accreditation surveys performed in long term care facilities are primarily performing the majority as virtual surveys for any nursing home accreditation at this time and only very limited on-site surveys in low prevalence area.

b. Commission on Accreditation for Rehabilitation Facilities (CARF) are only conducting virtual surveys for necessary re-accreditation and plan to remain virtual until at least July 2021.

c. Centers for Medicare and Medicaid Services (CMS) issued guidance on criteria for restoration of survey activities. Beginning June 1, 2020, all onsite revisits are authorized and should resume, if the SVH home is in phase three of re-opening. (https://www.cms.gov/files/document/qso-20-31-all.pdf)

Following this industry change it has become compelling for VA to also completely overhaul their survey process due to the pandemic crisis and to protect the safety of Veterans.

12. Certification:

Technical and Requirements Certification: I certify that the requirement outlined in this justification is a Bona Fide Need of the Department of Veterans Affairs and that the supporting data under my cognizance, which are included in the justification, are accurate and complete to the best of my knowledge and belief.

Lisa Minor, RN, BSN, MSSL Date National Director, Facility Base Care Geriatrics and Extended Care https://www.cms.gov/files/document/qso-20-31-all.pdf https://www.cms.gov/files/document/qso-20-31-all.pdf

Procuring Contracting Officer Certification: In accordance with FAR Subpart 6.303-1(a) (2), I hereby certify that this justification is accurate and complete to the best of my knowledge and belief.

Carl E Workman Date Contracting Officer, Acquisition Services Division 4 Office of Procurement Acquisitions and Logistics (OPAL) Strategic Acquisition Center (SAC) U.S. Department of Veterans Affairs

Procuring Contracting Officer Determination: In accordance with FAR Subpart 6.303-2(b)(7), I hereby determine that the anticipated cost to the Government will be fair and reasonable

Carl E Workman Date Contracting Officer, Acquisition Services Division 4 Office of Procurement Acquisitions and Logistics (OPAL) Strategic Acquisition Center (SAC) U.S. Department of Veterans Affairs

Approval

In my role as Executive Director, Office of Acquisition Operations, Agency Competition Advocate, based on the foregoing justification, I hereby approve the acquisition of State Veterans Homes Services, on another than full and open competition basis pursuant to the statutory authority cited in paragraph 4 above, subject to availability of funds, and provided that the property and services herein described have otherwise been authorized for acquisition.

Phillip W. Christy Date Deputy Executive Director, Office of Acquisition, Logistics, and Construction and Head of Contracting Activity for the Strategic Acquisition Center