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COVID-19 Alters the Landscape on Nursing Home Enforcement Activities

This Bulletin is brought to you by AHLA’s Post-Acute and Long Term Services Practice Group.
  • May 03, 2020
  • Mark A. Yost, Jr. , Lewis Brisbois Bisgaard & Smith LLP

Nursing facilities are quickly becoming the target of public attention during the COVID-19 pandemic due to a large number of adverse outcomes associated with the coronavirus. While COVID-19 was novel and unpredictable, providers should still expect additional regulatory enforcement activities, which may compound an already difficult operating environment.

Independent Commission to Recommend Additional Regulations

In comments at the White House on Thursday April 30, 2020, the President announced the formation of the Coronavirus Commission for Safety and Quality in Nursing Homes. The Commission, which will be convened by a Center for Medicare & Medicaid Services (CMS) contractor,[1] will look at how nursing homes have responded to the pandemic and recommend improvements to be implemented.

CMS has said that the independent commission will include industry leaders, family members, clinicians, residents, patient advocates, medical ethicists, administrators, academics, infection control experts, and state and local authorities.[2] Convening in late May, the Commission is going to develop actionable recommendations on three tasks:

  1. Putting nursing home residents first by ensuring they are protected from COVID-19 and improving the responsiveness of care delivery to maximize the quality of life for residents.
  2. Strengthening efforts to enable rapid and effective identification and mitigation of COVID-19 transmission (and other infectious disease) in nursing homes; and
  3. Enhancing strategies to improve compliance with infection control policies in response to COVID-19.

Additionally, the Commission is tasked with coordinating with state survey agencies on targeted surveys. While the American Health Care Association applauded the formation of the commission in a statement,[3] others like Leading Age were not as quick to jump on-board, stating “Today’s announcement fell far short of what’s needed to protect the most vulnerable Americans from the coronavirus,” and calling for more testing and Personal Protective Equipment (PPE).[4]

More information on Commission membership and meeting is expected in the next week as well as quick regulatory recommendations and enactments.

Additional Nursing Home Surveys Expected

This announcement coincided with an announcement of $81 million in additional funding for state survey agencies to conduct focused infection control surveys of nursing homes by July 2020 and an increase in complaint surveys based on COVID-19 trend data reported to the Centers for Disease Control and Prevention (CDC )under new reporting requirements[5] announced last week. These initiatives expand on the 2019 directives by CMS Administrator Seema Verma which laid out five areas of focus for CMS’ ongoing regulatory oversight: Strengthen Oversight, Enhance Enforcement, Increase Transparency, Improve Quality, and Put Patients Over Paperwork.[6]

All nursing homes should prepare for these surveys as it is unclear from the guidance as issued how CMS or State Survey Agencies will determine which facilities receive these increased surveys. What is clear, however, is how these surveys will be conducted and their focus. Facilities should use the published survey tool to do their own self-assessment to prepare for these additional surveys. (This tool should also be saved for use in defending the nursing home’s actions in potential litigation surrounding the COVID-19 response).

Despite the survey tool, what is unclear and may be left to local discretion is what standards will be used to evaluate nursing homes and their responses to the novel coronavirus. Undoubtedly the standards of care are a constantly evolving target as more is known about the treatment and prevention of COVID-19. It is essential that nursing home operators and attorneys who advise them stay abreast of the latest recommendations from CMS, the CDC, and local health authorities. Documenting the actions taken to implement recommendations as they are available will help facilities show that they were using the most up-to-date information available rather than having surveyors apply a backwards-looking review of standards that were not in place at the time of the action.

Reporting Requirements on COVID-19

On April 19, 2020, CMS announced that it plans to issue “a new requirement for [nursing] facilities to notify residents and their representatives to keep them up to date on the conditions inside the facility, such as when new cases of COVID-19 occur.”[7] On April 30, 2020, CMS codified these requirements at 42 C.F.R. §483.80(g).[8] Reports will be at least weekly to the CDC’s National Healthcare Safety Network (NHSN).[9] The reports will include, but are not limited to:

  • Confirmed and suspected COVID-19 infections among both residents and staff, including residents treated and recovered from COVID-19
  • Total deaths in the facility related and unrelated to COVID-19 among the residents and staff
  • Personal Protective Equipment (PPE) and hand hygiene supplies on stock in the facility
  • Ventilator capacity and supplies available in the facility
  • Resident census and total beds
  • Access to COVID-19 testing for residents and staff of the facility
  • Staffing shortages
  • Other information requested by CMS on the form

Additionally, nursing facilities will be required to inform residents and families by 5pm the next calendar day of either: (1) any confirmed COVID-19 infection; or (2) three or more residents or staff with new-onset of respiratory symptoms that occur within 72 hours of each other. CMS has warned that failure to comply with these additional notification requirements could result in CMS enforcement actions like Civil Money Penalties against the nursing facility. (Note that these reports to residents and families must be reported in accordance with existing privacy regulations including the Health Insurance Portability and Accountability Act, and must not include any personal health information). Importantly, this reporting can be made through mass communication methods, including email, listservs, or website postings.

The information reported to the CDC will be publicly available and will be subject to FOIA requests. As attorneys, we can expect that this information, especially regarding equipment and staffing, will be a treasure trove of information to be used against facilities in plaintiff’s litigation. Facilities are cautioned to follow the reporting guidelines but be sure to report accurately and only the information requested.

Conclusion

This difficult regulatory environment is expected to continue in the months ahead as COVID-19 continues to spread and until the pandemic is under control. The work of the Coronavirus Commission for Safety and Quality in Nursing Homes will need to be closely monitored. Additionally, it will be essential for attorneys representing nursing facilities to ensure that the actions of those facilities are judged on the standards present and known at the time, rather than what we now know or may know in the future. Attorneys should also understand and mitigate the risks associated with the publishing of the information reported to the CDC.

 
[1] The name of the contractor was not released by CMS and calls to CMS were unanswered at the time of publishing.
[9] Nursing Homes can sign up for the reporting site at: https://www.cdc.gov/nhsn/ltc/covid19/index.html.