Kennedy Chiglo

Associate Editor

Loyola University Chicago School of Law, JD 2022

The Centers for Medicare & Medicaid Services (“CMS”) released new guidance for skilled nursing facilities (“SNFs”) as  part of a larger rule making agenda for healthcare institutions in the throes of the current public health emergency with COVID-19. CMS has also detailed the fines for non-compliance with the new COVID-19 requirements for SNFs and other healthcare institutions such as hospitals and laboratories.

What are the data reporting requirements and repercussions?

Americans with long-term care needs have been disproportionately impacted throughout the pandemic with the highest death rates among older adults in nursing homes from COVID-19. CMS has reiterated the importance that all SNFs must provide testing for COVID-19 if there is a suspected outbreak. SNFs must also test any resident that exhibits signs or symptoms of the virus. Any testing data that a facility can reasonably record must be submitted daily to the State the facility is located or to the Department of Health and Human Services (“HHS”). “Reporting of test results and other data are vitally important tools for controlling the spread of the virus and give providers on the front lines what they need to fight it,” CMS administrator Seema Verma said in a statement made when the new requirements were announced.

These new data reporting rules follow a previous CMS call to Governors to create testing plans for nursing facilities in their states in April 2020. CMS has also increased the reimbursement rate for certain tests and provided new payment methodologies for the collection of lab samples from long-term care residents. In July, President Trump announced that rapid, point-of-care diagnostic devices would be sent to SNFs across the country who are certified to perform the appropriate COVID-19 tests. CMS reiterated its commitment to the vulnerable populations living in nursing homes and believed a renewed effort for data collection will allow for better policymaking to protect residents.

Surveyors will be deployed throughout the country to inspect nursing homes for adherence to the new testing requirements. SNFs could face civil monetary penalties exceeding $400 per day or over $8,000 for an instance of noncompliance with test reporting measures that are outlined by the updated CARES Act legislation.

New regulations will impose mandatory staff testing with increased funding

The latest round of CMS rule making has stipulated that SNF staff testing is a condition for participation in the Medicare and Medicaid programs. Under the Social Security Act, CMS has the express authority to adequately protect residents’ health, safety, welfare, and rights. Therefore, CMS plans to issue further guidance in the coming weeks about the required frequency of staff testing and the risk level of the transmission of COVID-19 in each community.

On July 22, 2020, President Trump announced an additional $5 billion in funding that will be made available to assist nursing homes in combatting the spread of the COVID-19. This $5 billion comes after a $4.9 billion allocation to nursing homes in May. The funds will be provided to SNFs through the Provider Relief Fund and are intended to offset the cost of increased testing, hiring of additional staff, purchasing of technologies to aid residents in connecting with their families, and other critical needs.

How will CMS implement a National Training Program in response to COVID-19?

In conjunction with CMS, HHS has also announced an unprecedented national training program for all 15,400 certified nursing homes across the country in an effort to slow the spread of the pandemic sweeping through many long-term care facilities. The new training is titled, “COVID-19 Training for Frontline Nursing Home Staff & Management” and has been made available now online within the CMS Quality, Safety, & Education Portal. The training contains five specific programs for clinical staff with patient interaction and ten modules for the effective management of nursing homes during a pandemic. These national trainings have been designed by findings from federal nursing home task force strike teams alongside experts from the Center for Disease Control and Prevention (“CDC”) that were sent to virus-hot-spot facilities across the country. Their data has been used to create policies that address the health and safety of residents, frontline staff, and guidance on how to best stop the spread of COVID-19 in their communities.

Additionally, CMS has partnered with the CDC who has agreed to provide pandemic prevention subject matter experts who will host bi-weekly webinars until January 7, 2021, to offer best practices and also field questions from participants.

These new requirements from CMS will impose a significant compliance burden on SNFs and other healthcare facilities. This unprecedented public health emergency has put considerable financial restraint on healthcare institutions who are concerned with providing quality access to patients while also receiving the appropriate reimbursements for care. SNFs will need to regularly look to CMS in the coming weeks and months for further guidance on reporting, testing, and training requirements to avoid civil monetary penalties and ensure their participation in the Medicaid and Medicare programs. However, there are a plethora of resources from CMS, HHS, and the CDC that have been made available to SNF staff members or administrators with compliance questions and should be utilized in times of doubt.