The reporting and disclosure of COVID-19 positive cases have been a hot button issue for nursing homes (“NHs”). On April 19, 2020, the Quality, Safety & Oversight Group at the Centers for Medicare & Medicaid Services (“CMS”) issued a memorandum entitled “Upcoming Requirements for Notification of Confirmed COVID-19 (or COVID‑19 Persons under Investigation) Among Residents and Staff in Nursing Homes” (“QSO Memo”) that outlines the regulations CMS intends to issue regarding communicable disease reporting to ensure tracking, response and mitigation of COVID-19 in nursing homes.
Background
Among the required components of a NH’s infection prevention and control program is that the program have a surveillance feature, which includes process and outcome surveillance, monitoring, data analysis, documentation and communicable diseases reporting, as required by state and federal law and regulation.
The NH must also know when and to whom to report communicable diseases, health care-associated infections (as appropriate), and potential outbreaks (e.g., list of communicable diseases that are reportable to local/state public health authorities).
It is important for each NH to have processes that enables the NH to consistently comply with state and local health department requirements for reporting communicable diseases.
Reporting to CDC
In the QSO Memo, CMS confirmed that it will issue regulations that will require NHs to report their COVID-19 infection data to the Centers for Disease Control and Prevention (“CDC”) in a standardized format and frequency to be defined by CMS and CDC.
The CDC currently calls for each NH to notify the NH’s state health department about residents or health care providers with suspected or confirmed COVID-19, residents with severe respiratory infection resulting in hospitalization or death, or three or more residents or health care providers with new-onset respiratory symptoms within 72 hours of each other.
Consequences of Failure to Report Data
CMS stated that the failure to report cases of residents or staff who have confirmed COVID-19 and “Persons under Investigation” could result in an enforcement action.
Notifications to Residents and Resident Representatives
In the QSO Memo, CMS confirmed that it will also require that NHs notify the NH’s residents and their representatives to keep them informed of the conditions inside the NH. This information will be shared by the NH directly with a resident and the resident’s representative.
CMS stated that NHs must inform residents and their representatives 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.
The QSO Memo provides that the regulations will also require that the NH update residents and their representatives weekly, or each subsequent time a confirmed infection of COVID-19 is identified and/or whenever three or more residents or staff with new onset of respiratory symptoms occurs within 72 hours. NHs will include information on mitigating actions implemented to prevent or reduce the risk of transmission, including if normal operations in the NH will be altered.
Consequences of Failure to Report Data
CMS stated that the failure to provide timely notification to residents and their representatives of these incidences could result in an enforcement action against the NH.
Next Actions
- NHs should prepare and be ready to update policies and procedures regarding reporting communicable diseases to the CDC, residents and resident representatives.
- NHs should design templates to use to communicate with residents and their representatives to use when the regulations are issued.
- NHs should ensure they provide immediate access by appropriate public health entities at the federal, state and local level to allow the CDC to perform on-site infectious disease surveillance, testing of health care personnel and residents or other related activities.
If you have questions or would like additional information about this topic, please contact:
- Sean Fahey at (317) 977-1472 or sfahey@wp.hallrender.com;
- Todd Selby at (317) 977-1440 or tselby@wp.hallrender.com;
- Brian Jent at (317) 977-1402 or bjent@wp.hallrender.com; or
- Your regular Hall Render attorney.
More information about Hall Render’s Post-Acute and Long-Term Care services can be found here.
Hall Render’s attorneys and professionals continue to maintain the most up-to-date information and resources, which are available at our COVID-19 Resource page, through our 24/7 COVID‑19 Hotline at (317) 429-3900 or by contacting your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
