On April 19, 2020, CMS announced a new “Requirement for Notification of Confirmed COVID-19 (or COVID-19 Persons under Investigation) Among Residents and Staff in Nursing Homes” (memo QSO-20-26) that summarized new facility reporting requirements that would soon be released through rulemaking.

On May 8, CMS published the interim final rule, titled “Medicare and Medicaid Programs, Basic Health Program, and Exchanges; Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency and Delay of Certain Reporting Requirements for the Skilled Nursing Facility Quality Reporting Program”. The final rule has been published to the Federal Register and can be found here. These regulations are effective as of May 8, 2020. Commenting on the final rule is open and all comments must be received no later than 5 p.m. on July 7, 2020.

Below are outlines of different aspects the final rule contains that skilled nursing facilities should be aware of when adjusting their operations.

  • The addition of §483.80(g) introduces new notification requirements for COVID-19 in nursing homes. This is an extra requirement to current regulations set forth in “42 CFR §483.80(a)(2)(ii)”, which states facilities must have “written standards, policies and procedures regarding infection control, to include when and to whom possible incidents of communicable disease or infections should be reported, such as to local/state health authorities”. CMS states the enactment of this new regulation as “an effort to support surveillance of COVID-19 cases and increase transparency for residents, their representatives, and families”.
  • Facilities must submit their first set of data by 11:59 p.m. on May 17, 2020 and facilities should report minimally every seven days. All facilities should report COVID-19 information via CDC’s National Healthcare Safety Network (NHSN) web module. Registration for the reporting module can be found here. Facilities should use their facility CMS Certification Number (CCN) to register.
    • Although CDC has Assisted Living (AL) listed as a reporting facility, without a CCN, they will not be able to register for the NHSN web module. It is suggested to contact your state’s governing entity for direction on whether to report cases of COVID-19.
  • CMS has made updates to the “COVID-19 Focused Survey for Nursing Homes,” “Entrance Conference Worksheet,” “COVID-19 Focused Survey Protocol,” and “Summary of the COVID-19 Focused Survey for Nursing Homes” documents to include an updated assessment of the new requirements for facilities to report to the NHSN, residents, their representatives and their families. Surveyors should use these updated documents immediately and facilities should use the “COVID-19 Focused Survey for Nursing Homes” document to perform their self-assessment.
    • The documents include new deficiency tags for being noncompliant with the new requirements. Failure to report to CDC will be cited remotely under §483.80(g)(1)-(2) with a minimum of an F tag, and failure to notify families under the new requirements will be cited during onsite surveys under §483.80(g)(3)(i)-(iii).
  • If a facility failed to comply with the requirement to report COVID-19 related information to the CDC in accordance with §483.80(g)(1)-(2), the deficiency tag F884 will be issued and will result in an enforcement action against the facility. Civil Monitoring Penalties (CMP) will be assessed to facilities for failure to comply with CDC’s required reporting. Enforcement will commence after a two (2) week grace period ending on May 31, 2020. Facilities will first receive a warning letter and if no reporting they will face a CMP of $1000/day with a $500 weekly incremental increase for continued non-reporting.
  • CMS urges facilities to post facility-level COVID-19 data to help ensure appropriate tracking, response, and mitigation of the spread and impact of COVID-19 is in place. CMS states that they plan to publicly post CDC’s NHSN data weekly on https://data.cms.gov/ by the end of May.

More detailed information and FAQ’s related to these new requirements can be found here.

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