On April 30, 2020, the Centers for Medicare & Medicaid Services (“CMS”) released 279 pages of interim final regulations to add a new provision at 42 CFR 483.80(g)(1), to require facilities to electronically report to the Centers for Disease Control and Prevention (“CDC”) information about COVID-19 in a standardized format specified by CMS.
What will the report include?
The report includes, but is not limited to, information on:
- Suspected and confirmed COVID-19 infections among residents and staff, including residents previously treated for COVID-19;
- Total deaths and COVID-19 deaths among residents and staff;
- Personal protective equipment and hand hygiene supplies in the facility;
- Ventilator capacity and supplies available in the facility;
- Resident beds and census;
- Access to COVID-19 testing while the resident is in the facility;
- Staffing shortages; and
- Other information specified by CMS.
This information will be used to monitor trends in infection rates, and inform public health policies.
When does this start?
These rules will be effective immediately upon publication by the federal government.
When and where to report?
In addition, at 42 CFR 483.80(g)(2), facilities are required to provide the information specified above at a frequency specified by CMS, but no less than weekly to the CDC’s National Healthcare Safety Network.
Will it be public?
The information reported will be shared with CMS. CMS will retain and publicly report this information to support protecting the health and safety of residents, personnel and the general public. It will be subject to Freedom of Information Act (“FOIA”) requests. CMS receives, and expect to continue to receive, COVID-19 related FOIA requests.
Do you still have to report to the state?
The new reporting requirements at 42 CFR 483.80(g)(1) and (2) do not relieve facilities of the obligation to continue to comply with 42 CFR 483.80(a)(2)(ii), which requires facilities to report possible incidents of communicable disease and infections. This includes complying with state and local reporting requirements for COVID-19.
What about informing residents, resident representatives and families?
At 42 CFR 483.80(g)(3), CMS added a new provision to require facilities to inform residents, their representatives and families of those residing in facilities of confirmed or suspected COVID-19 cases in the facility among residents and staff.
Who and when to inform?
Facilities must inform residents, their representatives and families by 5 p.m. the next calendar day following the occurrence of either:
- 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 of each other.
Also, cumulative updates to residents, their representatives and families must be provided at least weekly by 5 p.m. the next calendar day following the subsequent occurrence of either: each time a confirmed infection of COVID-19 is identified; or whenever three or more residents or staff with new onset of respiratory symptoms occur within 72 hours of each other.
This information must be reported in accordance with existing privacy regulations and statute, and must not include Personally Identifiable Information.
What else must be reported?
In addition to providing information of those residing in facilities of confirmed or suspected COVID-19 cases in the facility among residents and staff, facilities must include information on mitigating steps the facility is taking to prevent and control the spread of COVID-19, including if normal operations in the nursing home will be altered such as restrictions or limitations to visitation or group activities.
How should you report to residents, resident representatives and families?
For purposes of this reporting requirement, facilities are not expected to make individual telephone calls. Instead, facilities can utilize communication mechanisms that make this information easily available to all residents, their representatives and families, such as:
- Paper notification;
- Listservs;
- Website postings; and/or
- Recorded telephone messages.
Next Actions
- Facilities should register with the CDC’s National Healthcare Safety Network as soon as possible.
- Facilities should update policies and procedures regarding reporting communicable diseases to the CDC, residents and resident representatives.
- Facilities should test their communication methods.
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 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.
