New COVID-19 Regulatory Requirements Announced for Nursing Homes

On April 19, 2020, the Centers for Medicare & Medicaid Services (CMS), partnered with the Trump Administration, announced new regulatory requirements will be issued for nursing homes during the COVID-19 pandemic. CMS also issued a memorandum discussing what the new regulations will include. The regulations are being implemented to address the continued spread of COVID-19 through nursing homes and ensure nursing home residents attain or maintain the highest level of well-being.

Currently, nursing homes are required to establish and maintain an infection prevention and control program designed to help prevent the development and transmission of communicable diseases and infections (e.g., COVID-19). This requires nursing homes to develop a system of surveillance to identify possible communicable diseases or infections before they can spread to other persons in the facility. To better aid facilities in combating COVID-19 in nursing homes, the new regulations will require nursing homes to engage in: (1) facility reporting, (2) resident and resident representative reporting, and (3) ongoing public health surveillance.

FACILITY REPORTING

Regulatory requirements and guidance from the Centers for Disease Control and Prevention (CDC), prior to the issuance of the new regulations, specified that nursing homes should notify State and/or Local health departments if any of the following occur:

• Any residents or staff are suspected to have, or have been diagnosed with, COVID-19;
• Residents have severe respiratory infection resulting in hospitalization or death; or
• Three or more residents or staff report new-onset respiratory symptoms within 72 hours of each other.

This data was not being collected by any federal agency prior to the issuance of the new regulations. Moreover, the information was only being provided optionally by nursing homes. The new regulations provide that this information will be required to be reported by nursing homes and that CMS and the CDC will provide specific direction on formatting and reporting requirements. CMS and/or the CDC should be releasing this guidance soon. Therefore, nursing homes should frequently check the CMS and CDC website for any updates regarding the reporting requirements.

RESIDENT AND RESIDENT REPRESENTATIVE NOTIFICATION OF COVID-19

The new regulations also require nursing homes to notify its residents and their representatives of the conditions inside the facility.

At a minimum, nursing homes will be required to inform their residents and representatives within twelve (12) hours of either: (a) an occurrence of a confirmed case of COVID-19 at the facility; or (b) if three (3) or more residents or staff reporting new-onset respiratory symptoms within 72 hours of each other.

Additionally, facilities are required to include information regarding mitigating actions taken by the nursing home to reduce the risk of transmission of COVID-19 to other patients at the facility. This may include altering the normal operations in the nursing home. Note that reports must comply with applicable privacy regulations and statutes.

CMS’ memorandum provides that additional rulemaking will follow to specify precisely what the new notification requirements will entail for nursing homes. Failure to adhere to the upcoming notification rules could result in enforcement action by CMS against the nursing home. The HLP recommends that nursing homes begin implementing this measure prior to formal regulation issuance.

ONGOING PUBLIC HEALTH SURVEILLANCE

CMS’ memorandum also reminds nursing homes that pursuant to federal regulations, they are required to ensure appropriate public health entities have access to their facilities. This is to permit the CDC to perform on-site infectious disease surveillance, testing of healthcare personnel and residents, or other related activities. This access is essential to ensure that Federal, State and Local public health surveillance systems (as well as residents and their representatives) have the most complete and up-to-date information regarding COVID-19 in nursing homes. Such information is essential to effectively combat the COVID-19 pandemic in nursing homes.

Note that this is the latest action taken by the Trump Administration and CMS to address the spread of COVID-19 in nursing homes. We have discussed other actions taken by CMS regarding nursing homes in two previous blogs. The first blog discussed CMS guidance to mitigate the spread of COVID-19. The second blog discussed CMS increasing Medicare payments for certain COVID-19 tests.

For more information regarding the new regulatory requirements for nursing homes or any other guidance regarding nursing homes during the COVID-19 pandemic, please contact your regular HLP attorney, or Partners@thehlp.com, or call (248) 996-8510.