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CMS Enhances COVID-19 Reporting and Surveillance Obligations for Long Term Care Facilities

The Centers for Medicare and Medicaid Services (CMS) issued a Quality, Safety and Oversight Group (QSO) memorandum (QSO-20-26-NH) informing long term care facilities, including nursing homes, about new reporting and surveillance requirements issued as result of the Coronavirus (COVID-19) pandemic. CMS considers these efforts to be crucial elements in the federal plan to incrementally reopen the economy and will promulgate rules to implement these requirements imminently, which are expected soon.


On April 19, 2020, the Centers for Medicare and Medicaid Services (CMS) issued a Quality, Safety and Oversight Group (QSO) memorandum (QSO-20-26-NH) informing long term care facilities, including nursing homes, about certain upcoming regulatory changes as a result of COVID-19, the disease caused by the 2019 novel coronavirus. Specifically, long term care facilities were notified about certain changes regarding (i) reporting of COVID-19 cases to the Centers for Disease Control and Prevention (CDC), (ii) reporting cases of COVID-19 to facility residents and family members and (iii) requiring long term care facilities to cooperate with CDC regarding surveillance efforts. CMS considers these reporting and surveillance efforts as crucial elements in President Trump’s Opening Up America plans, which seek in part to incrementally scale back on business and social restrictions as testing increases and infection and mortality rates decrease.

Reporting Cases to the CDC

Existing long term care facility Medicare and Medicaid requirements (42 CFR 483.80(a)(2)) and guidance from the CDC obligate long term care facilities to notify state and local health departments about reportable diseases, including suspected or confirmed COVID-19 among residents, any instances of residents with severe respiratory infection resulting in hospitalization or death, or three or more residents or staff experiencing new respiratory symptoms within 72 hours of each other.

However, to date, federal agencies had not been collecting and analyzing the data contained in these reports. Whereas long term care facilities had the option of sharing reporting data with CDC in the past, new rules will require reporting to support CDC’s COVID-19 surveillance efforts. CMS and CDC plan to provide instructions to long term care facilities regarding standard formatting and frequency with which to report COVID-19 data to the CDC National Healthcare Safety Network. Details regarding these reports are anticipated as part of rulemaking efforts outlined in QSO 20-26-NH.

Reporting Cases to Residents and Family Members

CMS has also announced intentions to promulgate rules requiring long term care facilities to notify residents and their representatives about facility-level conditions. CMS anticipates that these rules will require long term care facilities to share information with residents and their representatives in at least four scenarios:

  • Within 12 hours of the occurrence of a single confirmed infection of COVID-19
  • When three or more residents and/or staff experience new respiratory symptoms within 72 hours of each other
  • Weekly updates to residents and representatives, regarding conditions in the facility, in addition to the more frequent reports when new infections or pockets of respiratory symptoms arise
  • Frequent reports regarding the facility’s endeavors to mitigate, prevent or reduce the risk of COVID-19 transmission, including whether normal operations at the facility will be altered

While CMS has not provided a timeline for rulemaking or identified whether stakeholders will be provided with an opportunity to comment on the proposed rules through the typical notice and comment processes, it has forecasted that a facility’s non-adherence with COVID-19 reporting requirements could result in an enforcement action.

Cooperation with Public Health Surveillance

QSO 20-26-NH further reminds long term care facilities of the requirement to cooperate with public health entities (42 CFR 483.10(f)(4)(i)(A) and (B)). To that end, long term care facilities must provide state public health authorities or a representative of the Secretary of Health and Human Services with access to residents upon request. CMS anticipates that access may be necessary for on-site surveillance activities, testing of healthcare personnel and residents, or other related activities as permitted by applicable law.

While state and local health department reporting requirements are currently in effect, the new requirements to report to the CDC, patients and their representatives will be effective as set forth in the upcoming rules. 

© 2023 McDermott Will & EmeryNational Law Review, Volume X, Number 113

About this Author

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