The federal Centers for Medicare and Medicaid Services (CMS) issued a press release yesterday (August 25, 2020) about its proposed interim final rule to require all nursing homes to conduct COVID-19 testing of staff (including volunteers and those “under arrangements” such a hospice workers who have physical contact with residents) and residents. The Secretary of Health and Human Services is to issue parameters for this testing, including frequency, the criteria for testing asymptomatic persons (based on the positivity rate for the county in which the facility is located), response times for tests and other factors as determined by the Secretary. The new requirements, once actually in place, will be added to the infection control requirements in 42 CFR 483.80 applicable to nursing homes that participate in Medicare and Medicaid. In this proposed rule, CMS is seeking comments on the parameters that are to be set by the HHS Secretary for the testing protocols.
As New York requires nursing homes to conduct testing of its staff at least once a week, these testing requirements are not likely to have much practical effect on New York facilities. The proposed rule now requires that nursing homes report each week on their testing results and includes new civil money penalties (CMP) for failure to do so in a timely manner. The minimum CMP will be $1,000 for the first time a facility fails to comply, with a $500 incremental increase for each subsequent failure. So, for example, a facility that fails to report in week 1 will be assessed $1,000. If it fails to report again in week 2, it will be assessed $1,500. If it reports as required in week 3, but then again fails to report in week 4, the CMP will be $2,000, and so on, up to the maximum per occurrence of $6,500. Each failure to timely report will also be deemed a level “F” deficiency. These new reporting requirements are in addition to, and do not override existing New York State reporting requirements or penalties.
Because of the public health emergency declared by the President, CMS is putting the new weekly reporting requirements and the CMP into effect immediately upon its publication in the Federal Register. There is no announced date for this publication, but it is expected soon.
For additional information about the issues discussed above, or if you have any other Health Care Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Helen Zamboni, the author of this piece, here or at (585) 258-2844.