CMS Announces Grace Period, Escalating Fine Structure for COVID-19 Reporting Rule

The federal government on Wednesday clarified that nursing home operators have a substantial grace period before they must begin submitting COVID-19 data required under a new interim final rule — while also laying out an escalating series of fines for failure to eventually report.

The rule, announced last week, now gives providers until next Sunday, May 17, to submit the first round of COVID-19 testing information to the Centers for Medicare & Medicaid Services (CMS) and Centers for Disease Control & Prevention (CDC).

The agencies will begin releasing those statistics — including the names of individual facilities, and the number of cases and deaths — by the end of the month on CMS’s dedicated data site.

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Operators must provide weekly updates to the two agencies through the CDC’s National Healthcare Safety Network (NHSN) platform, but CMS has implemented an extended grace period for the first two weeks, giving providers until May 31 before any kind of enforcement begins.

Providers that do not submit data by that date will receive a warning letter, with a one-day civil monetary penalty (CMP) of $1,000 for operators that fail to comply during the week ending June 7, according to a CMS memo released Wednesday. That fine increases by $500 for each subsequent week that operators do not provide the required data.

CMS did emphasize that the mere presence of COVID-19 cases in a nursing facility is not automatically grounds for corrective action; the agency will continue to rely on the infection control-focused surveys, announced early in the coronavirus crisis, to hand out violations.

“Surveyors will only cite noncompliance with federal requirements for infection control and prevention based on their investigations, and not based on the COVID-19 information reported through the NHSN system,” CMS asserted in the memo.

The agency additionally warned that any operator caught underreporting cases will put itself at risk.

“Accurate data is critical to directing public health action and ensuring critical resources and assistance are available to facilities that need them,” CMS directed. “If, upon further investigation, CMS identifies that a facility did not submit complete and accurate information, the facility would not be in compliance with the new reporting requirements and would be subject to enforcement actions.”

The joint CMS-CDC reporting requirement came after weeks of criticism from multiple corners of the post-acute and long-term care landscape, including lawmakers, resident advocates, and the industry itself.

The goal, according to the federal government, is to increase transparency and assist the CDC in its COVID-19 surveillance efforts; industry leaders have expressed hope that the data will help direct precious supplies of tests and personal protective equipment (PPE) to the facilities that need it most.

While the information cannot directly lead to any survey action, CMS in the memo additionally clarified that it will use the data to supplement its existing inspection strategies.

“CMS will use the information to ensure nursing homes are following all requirements for participation, specifically those focused on infection control,” the agency noted. “CMS may also use the information to determine survey prioritization.”

As part of the new initiative, CMS added multiple sections on federal COVID-19 reporting to its coronavirus-focused survey for both inspectors and families.

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