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The Centers for Medicare and Medicaid Services (CMS) recently published a memorandum announcing new regulatory requirements for skilled nursing facilities to report any COVID-19 cases directly to the Centers for Disease Control and Prevention (CDC). When discussing the new measures at the White House Task Force press conference, CMS Administrator Seema Verma stated, “as we reopen the United States, our surveillance effort around the COVID virus will also begin in nursing homes." Administrator Verma added, "this will support CDC's efforts to have surveillance around the country and to support efforts around contact tracing so that we can mitigate the spread of the virus in those communities that show spread starting in nursing homes.” Prior to this announcement, CMS mandated that appropriate local, state and federal health departments could continue conducting limited infection control surveys, under the requirements of 42 CFR § 483.10(f)(4)(i)(A)-(B) to maintain surveillance of long term care providers.

Currently, 42 CFR § 483.80 and CDC guidance require nursing homes to notify state or local health departments about residents or staff with suspected or confirmed COVID-19. 42 CFR § 483.80, which falls under the chapter titled, “Requirements for States and Long Term Care Facilities” directs facilities to develop an infection prevention and control program with the following elements:       

  1. A system for preventing, identifying, reporting, investigating, and controlling infections and communicable diseases for all residents, staff, volunteers, visitors, and other individuals providing services under a contractual arrangement based upon the facility assessment conducted according to §483.70(e) and following accepted national standards.
  2. Written standards, policies, and procedures for the program, which must include, but are not limited to:
    1. A system of surveillance designed to identify possible communicable diseases or infections before they can spread to other persons in the facility.
    2. When and to whom possible incidents of communicable disease or infections should be reported.
    3. Standard and transmission-based precautions to be followed to prevent spread of infections. 
    4. When and how isolation should be used for a resident; including but not limited to:
      1. The type and duration of the isolation, depending upon the infectious agent or organism involved.
      2. A requirement that the isolation should be the least restrictive possible for the resident under the circumstances.
    5. The circumstances under which the facility must prohibit employees with a communicable disease or infected skin lesions from direct contact with residents or their food, if direct contact will transmit the disease.
    6. The hand hygiene procedures to be followed by staff involved in direct resident contact. 42 CFR § 483.80.

In a rulemaking that will follow, CMS will reinforce the Infection Control rule to require nursing homes to also report this data to the CDC in a standardized format and at a frequency determined by CMS and CDC. The data will be reported through the National Health Safety Network (NHSN) system. The new rule will also require facilities to notify their “residents and their representatives within 12 hours of the occurrence of a single confirmed COVID-19 infection, or three or more residents or staff with new-onset of respiratory systems that occur within 72 hours.” These updates must occur weekly or each time a subsequent infection of COVID-19 is confirmed. Failure to report resident or staff incidences of infection, including both confirmed COVID-19 and persons under investigation for COVID-19, or failure to provide timely notification to residents and their representatives of these incidences could result in enforcement action against the nursing home by CMS.

The proposed rule is expected to be published soon, which will provide more details on the national reporting of COVID-19 cases in long term care facilities. CDC and CMS will be providing a standardized form for facilities to use, information on the National Health Safety Network system, and more overall guidance in the coming days. 

For more cutting-edge perspectives on the legal and business implications of COVID-19, visit our COVID-19 resource center.