Nursing homes face possible fines and the need to navigate F-Tags as they embark on the new COVID-19 reporting requirements to the CDC.
On May 6, 2020, the Quality, Safety & Oversight Group at CMS issued a memorandum entitled “Interim Final Rule Updating Requirements for Notification of Confirmed and Suspected COVID-19 Cases Among Residents and Staff in Nursing Homes” (“QSO Memo”) that updates guidance regarding communicable disease reporting to CDC to ensure tracking, response and mitigation of COVID-19 in nursing homes (“NH”).
Background
On May 8, 2020, CMS will publish an interim final rule with comment period, 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.”
When to Report?
The QSO Memo details that NHs must submit their first set of data by 11:59 p.m. Sunday, May 17, 2020. To be compliant with the new requirement, NHs must submit the data through the CDC National Healthcare Safety Network (“NHSN”) reporting system at least once every seven days. NHs may choose to submit multiple times a week. CMS is not mandating which day of the week the data must be submitted. The collection period should also remain consistent (e.g., Monday through Sunday). Each Monday, CMS will review the data submitted to assess if each NH submitted data at least once in the previous seven days. The data pulled each Monday will also be used to update the data that CMS publicly reports.
Surveys and New F-Tags
CMS has updated its entrance conference worksheet and its COVID-19 Focused Survey Protocol to include an updated assessment of the new requirements for NHs to report to the NHSN and to residents, their representatives, and their families. CMS has also added two new deficiency tags for citing noncompliance with the new requirements:
- F-884: COVID-19 Reporting to CDC
After the initial reporting grace period granted to NHs, CMS will receive the CDC NHSN COVID-19 reported data and review for timely and complete reporting of all data elements. NHs identified as not reporting will receive a deficiency citation at F-884 on the CMS-2567 form with a scope and severity level at an F (no actual harm with a potential for more than minimal harm that is not an immediate jeopardy and that is widespread; this is a systemic failure with the potential to affect a large portion or all of the residents or employees), and be subject to a fine.
Review for F-884 will be conducted offsite by CMS federal surveyors, as state surveyors should not cite this F-Tag.
- F-885: COVID-19 Reporting to Residents, their Representatives and Families
Review for F-885 is included in the “COVID-19 Focused Survey Protocol” and will occur onsite by state and/or federal surveyors. If the survey finds noncompliance with this requirement, a deficiency citation at this tag will be recorded on the CMS-2567 and enforcement actions will follow the memo QSO-20-20-All.
For purposes of this reporting requirement, NHs are not expected to make individual telephone calls. Instead, NHs can utilize communication mechanisms that make this information easily available to all residents, their representatives and families, such as:
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- Paper notification;
- Listservs;
- Website postings; and/or
- Recorded telephone messages.
CMS does not expect NHs to make individual telephone calls to each resident’s family or responsible party to inform them that a resident in the NH has laboratory-confirmed COVID-19.
Fines
The new rules require a minimum of weekly reporting, and noncompliance with this requirement will receive a deficiency citation and result in a civil money penalty (“CMP”). A determination that a NH failed to comply with the requirement to report COVID-19 related information to CDC pursuant to 42 CFR 483.80(g)(1)-(2) (F Tag F-884) will result in an enforcement action.
- CMS will provide NHs with an initial two-week grace period to begin reporting cases in the NHSN system (which ends at 11:59 PM on May 24, 2020).
- NHs that fail to begin reporting after the third week (by 11:59 p.m. on May 31, 2020) will receive a warning letter reminding them to begin reporting the required information to CDC.
- For NHs that have not started reporting in the NHSN system by 11:59 p.m. on June 7, 2020, ending the fourth week of reporting, CMS will impose a per day CMP of $1,000 for one day for the failure to report that week.
- For each subsequent week that the NH fails to submit the required report, the noncompliance will result in an additional one day per day CMP imposed at an amount increased by $500.
- For example, if a NH fails to report in week four (following the two week grace period and receipt of the warning letter), it will be imposed a $1,000 one-day per day CMP for that week.
- If it fails to report again in week five, the noncompliance will lead to the imposition of another one day per day CMP in the amount of $1,500 for that failure to report (for a CMP total of $2,500).
- In this example, if the NH complies with the reporting requirements and submits the required report in week six, but then subsequently fails to report as required in week seven, a one day per day CMP amount of $2,000 will be imposed (which is $500 more than the last imposed per day CMP amount) for a total of $4,500 imposed CMPs.
CMS to Post Facility-Level COVID-19 Data
CMS anticipates publicly posting CDC’s NHSN data (including NH names, number of COVID‑19 suspected and confirmed cases, deaths, and other data as determined appropriate) weekly on a CMS data site by the end of May 2020.
Next Actions
- NHs should prepare and be ready to update policies and procedures regarding reporting communicable diseases to CDC, residents and resident representatives.
- NHs should ensure they provide immediate access by appropriate public health entities at the federal, state and local level to allow 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 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.
