Nursing Home Enforcement Actions May Result from Failure to Comply with CMS’s Forthcoming COVID-19 Reporting Requirements

April 2020

April 20, 2020

On April 19, 2020, the Center for Medicare and Medicaid Services (“CMS”) issued guidance concerning Upcoming Requirements for Notification of Confirmed COVID-19 (or COVID-19 Persons Under Investigation) Among Residents and Staff in Nursing Homes.  The guidance discusses current reporting requirements and upcoming rulemaking concerning reporting and notification of COVID-19 cases.  The guidance does not provide a concrete timeline for the implementation of these requirements, but instead indicates the “new requirements [] will be put in place very soon.”

Current Requirements under Existing Regulations

42 CFR 483.30 and CDC guidelines

Require nursing homes to notify state or local health departments about:

  • Residents or staff with suspected or confirmed COVID-19;
  • Residents with severe respiratory infection resulting in hospitalization or death; or
  • Three or more residents or staff with new-onset respiratory symptoms within 72 hours of each other.

42 CFR 483.10(f) (4)(i)(A) and (B)

  • Requires facilities to provide immediate access to any residents by any representative of the Secretary or State.
  • Purpose of these visits will be for CDC to perform on-site infectious disease surveillance, testing of healthcare personnel and residents, or other related activities, as permitted under law.

Upcoming Guidance and Regulations

Reporting to CMS and CDC

  • Specific direction to be provided on standard formatting and frequency for reporting this information through the CDC’s National Health Safety Network system.

Rulemaking on Notification

The prospective rule will require facilities to directly notify and update residents and representatives of conditions inside the facility surrounding COVID-19.

First notice must occur:

  • Within 12 hours of the occurrence of a single confirmed infection of COVID-19; or
  • Three or more residents or staff with new-onset of respiratory symptoms that occur within 72 hours.

Updates must be provided:

  • Weekly;
  • Each time a confirmed case of COVID-19 is identified; or
  • When three or more residents or staff with new-onset of respiratory symptoms occur within 72 hours.

Requirements of Notice:

  • Must include information on mitigation efforts, including if normal operations will be altered;
  • Must meet all existing privacy regulations and statutes; and
  • Failure to report COVID-19 cases or provide timely notification to residents or   representatives could result in enforcement action by CMS.

Visit our COVID-19 Hub for ongoing updates.