CMS to Issue Guidance to Nursing Homes on Increased Reporting and Notification Requirements of Confirmed COVID-19 Cases

Consistent with the Centers for Medicare and Medicaid Services’ (“CMS”) goals to enable and guide health care facilities in responding to the 2019 novel coronavirus (“COVID-19”), CMS issued a memorandum on April 19, 2020 providing notice of additional requirements for reporting confirmed COVID-19 cases in nursing homes. The memorandum does not include the actual rules or forms required to meet these reporting requirements, but instead alerts nursing homes to forthcoming direction and rulemaking that will provide additional guidance. The full alert from CMS is available here.

Currently, nursing homes must notify state and local health departments of the following incidents related to COVID-19:

  • Residents and/or staff with suspected or confirmed COVID-19 cases,
  • Residents with severe respiratory infection resulting in hospitalization or death, or
  • Instances where three or more residents or staff develop new-onset respiratory symptoms within 72 hours of each other.

At present, CDC, CMS, and FEMA do not collect or track these data. Thus, CMS and CDC will be issuing guidance to nursing homes setting forth the standard format and frequency with which these data should be reported to the CDC’s National Health Safety Network system. Nursing homes have always had the option to report this information, but will now be required to report in order to provide a greater picture of COVID-19 cases locally and nationally and to guide further development of public health policies and actions.

In addition to reporting the number of cases to a CDC database, CMS subregulatory guidance indicates that new rulemaking will require nursing homes to notify its 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 information should be shared directly with residents and their representatives, and there will be further guidance on the format of such notification. Once one of the above criteria are met, the periodic notification must be provided at least weekly and upon each subsequent occurrence of a confirmed case and/or three or more staff or residents with new-onset of respiratory symptoms within 72 hours. The notification will be required to include information on the nursing home’s actions to prevent or mitigate the risk of transmission throughout the facility and shall provide any information regarding changes to normal operations within the nursing home.

CMS has indicated that the forthcoming rulemaking will include a provision allowing for potential enforcement actions against a nursing home for failure to report resident or staff incidences to the CDC or to provide timely notification to residents and their representatives of such occurrences.


Although the new reporting requirements will not be in effect until CMS releases the actual rule, nursing homes should be prepared to implement these changes and ensure that they are correctly tracking and reporting incidents of suspected or confirmed COVID-19 cases and new-onset respiratory symptoms as detailed above. Facilities should examine their current resident and resident representative notification capabilities in preparation of further guidance from CMS and the CDC.

Should you, your practice, or your business have any questions about the implications of this guidance, please contact Peter Mellette, Harrison Gibbs, Elizabeth Dahl Coleman, or Scott Daisley at Mellette PC.

This client advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.

Categories: Client Advisory