In guidance released Sunday evening, April 19, 2020, the Centers for Medicare & Medicaid Services (CMS) announced that in two sets of future rulemaking, it will require nursing facilities to report information about suspected and confirmed cases of coronavirus to the Centers for Disease Control and Prevention (CDC) and to residents and their representatives. Although CMS claims to be “reinforcing an existing requirement that nursing homes must report communicable diseases, healthcare-associated infections, and potential outbreaks to State and Local health departments,” the federal infection control regulations cited by CMS (42 C.F.R. §483.80) do not impose such a requirement on facilities. The rules require facilities “to know when and to whom possible incidents of communicable disease or infections should be reported.” Some states require the submission of such information as a matter of state law.
CMS acknowledges that CMS, CDC, and the Federal Emergency Management Agency (FEMA) do not collect data on “residents or staff with suspected or confirmed COVID-19, residents with severe respiratory infections resulting in hospitalization or death, or ≥ 3 residents or staff with new-onset respiratory symptoms within 72 hours of each other,” and that nursing facilities provide this information “optionally.” CMS says that the information that it will require facilities to submit to the CDC “will be used to support surveillance of COVID-19 locally and nationally, monitor trends in infection rates, and inform public health policies and actions.” It also says that the information “may be retained and publicly reported in accordance with law.” In other words, CDC will apparently communicate information about coronavirus to local officials, but there is no commitment to publicly report such information.
Separate rulemaking will require facilities to:
- Inform residents and their representatives within 12 hours of
- A single occurrence of confirmed COVID-19 or
- When three or more residents or staff “with new-onset of respiratory symptoms that occur within 72 hours”
- Update residents and their representatives
- Whenever a confirmed infection of COVID-19 is identified
- When three or more residents or staff “with new-onset of respiratory symptoms occurs within 72 hours”
According to McKnight’s Long-Term Care News, Marsha Greenfield, vice president for health legislation at LeadingAge, the trade association of not-for-profit providers, describes the duplicative reporting announced by CMS as a “‘disaster’” and indicates that LeadingAge will be requesting that CMS rescind the rule.
A Better Proposal
The Center for Medicare Advocacy proposes that CMS require facilities to report information about coronavirus to state health departments/survey agencies on a daily basis. The Center also urges CMS to require states to collect the COVID-19 information from facilities, make the information public on a daily or weekly basis, and use the information both to monitor facilities with problems (remotely and through on-site visits) and to target additional resources where they are most needed.
With accurate information about which facilities have residents and staff with suspected or confirmed COVID-19, states would be able more effectively to target tests, personal protective equipment, and additional staff (some states have strike teams) to facilities with the greatest need.
 CMS, “Upcoming Requirements for Notification of Confirmed COVID-19 9or COVID-19 Persons under Investigation) Among Residents and Staff in Nursing Homes,” QSO-20-26-NH (Apr. 19, 2020), https://www.cms.gov/files/document/qso-20-26-nh.pdf.
 Danielle Brown, “New COVID-19 requirement could be a ‘disaster,’” McKnight’s Long-Term Care News (Apr. 22, 2020), https://www.mcknights.com/news/new-covid-19-requirements-could-be-a-disaster/,