Changes to Nursing Home Reporting Requirements Due to COVID-19

Introduction

CMS recently published a new interim final rule with comment period as part of its continued response to the COVID-19 public health emergency. The rule imposed temporary changes in many health care provider services and included additions and changes to some nursing home reporting requirements. This client advisory will briefly describe and discuss the key changes this rule made to nursing home reporting requirements. A copy of the final rule is available here.

Facility Requirements to Report Nursing Home Resident and Staff Infections, Potential Infections, and Deaths Related to COVID-19

All long-term care facilities that participate in Medicare or Medicaid must comply with the federal requirements of participation. One participation requirement is to develop and implement an effective infection control program designed, constructed, equipped, and maintained to protect the health and safety of residents, personnel, and the general public. The infection control programs of nursing facilities are under scrutiny right now because of how integral they are in preventing the spread of COVID-19 in a most susceptible population group, long-term care facility residents.

CMS revisions to infection control programs require nursing facilities to electronically report data about COVID-19, in a format specified by the Secretary. At a minimum, the new rule requires facilities to report the following information:

• 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 in the facility;
• resident beds and census;
• access to COVID-19 testing; and
• staffing shortages.

In the interim final rule, the Secretary reserves the right to add additional reporting requirements to these delineated requirements at any time. Facilities must report this information as required by the Secretary, but no less often than weekly to the Center for Disease Control and Prevention’s National Healthcare Safety Network. As of right now, the Secretary has not specified the format in which this information must be reported. Importantly, this reporting requirement does not affect any other communicable disease or COVID-19 reporting requirements imposed on facilities by federal, state, or local law.

Notice to Residents, Resident Representatives, and Resident Families of Possible and Confirmed Cases of COVID-19

The interim final rule imposes a requirement on facilities to inform residents, resident representatives, and resident families of confirmed or suspected cases of COVID-19 among facility residents and staff. By 5 p.m. the next calendar day, facilities must inform residents, resident representatives, and resident families of a single confirmed COVID-19 infection or the new onset of respiratory symptoms in three or more residents or staff within seventy-two hours of each other. Subsequently, facilities must provide cumulative updates weekly following the triggering of the initial information reporting requirement. Facilities must continue to comply with existing privacy regulations and statutes while providing this information to residents, resident representatives, and resident families. With these correspondences, facilities must include information on the mitigating actions they are taking to reduce and prevent spread and transmission of COVID-19.

The final rule specifically states that facilities are not expected to make individual phone calls to comply with this requirement. Rather, facilities should utilize communication mechanisms that make the information that must be transmitted easily accessible to all residents, resident representatives, and resident families. Facilities should utilize listservs, website postings, paper notification, and recorded telephone messages as they feel appropriate and as consistent with HIPAA privacy rules to reach all parties.

Implementation Delays of New 2022 Reporting Requirements

In the 2020 Skilled Nursing Facility PPS Final Rule, CMS adopted two new Transfer of Health (“TOH”) quality measures on which CMS wants skilled nursing facilities (“SNFs”) to collect data and report for the 2022 Skilled Nursing Facility Quality Reporting Program (“QRP”). These two new TOH quality measures were the Transfer of Health Information to the Provider—Post Acute-Care Measure[1] and the Transfer of Health Information to the Patient—Post-Acute Care Measure.[2] Both quality measures involve medication management during transitions of care. Additionally, CMS adopted six Standardized Patient Assessment Data Elements (“SPADEs”) that CMS wants SNFs to report for admissions and discharges for all patients beginning in the 2022 QRP.[3]

The current Minimum Data Set (“MDS”) used by SNFs to submit data for the annual QRP does not include fields to report data for these new TOH quality measures and SPADEs. When the COVID-19 Public Health Emergency was declared, CMS was in the process of training providers on the new MDS that would incorporate these new information fields. CMS is delaying the release of the new MDS because of the current Public Health Emergency. The new MDS training hiatus in turn delays the adoption of the new MDS and prevent SNFs from being able to report data on these new reporting requirements. CMS will require SNFs to begin collecting data for these two new TOH quality measures and six SPADEs on the first October 1^st that occurs that is at least two full years after the end of the COVID-19 Public Health Emergency.

Conclusion

CMS continues to change the regulatory landscape to combat the unprecedented COVID-19 Public Health Emergency. The provisions of this final rule are effective now; however, there is an opportunity to submit comments on the provisions of the rule.

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

This client advisory is for general educational purposes only and does not cover every provision of the interim final rue. 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.

[1] This measure will assess whether or not a current reconciled medication list is given to a subsequent provider when a patient is transferred or discharged from his or her current post-acute care setting.

[2] This measure will assess whether or not a current reconciled medication list is provided to the patient, family, or caregiver when the patient is discharged from a post-acute care setting to a private residence, a board and care home, assisted living, group home, transitional living, or home under care of an organized home health service organization or hospice.

[3] The six SPADE categories are: (1) cognitive function and mental status, (2) patient health questionnaire—2 to 9, (3) special services, treatments, and interventions data, (4) medical condition and comorbidity data, (5) impairment data, and (6) social determinants of health.