by Carol J. Bova
The Centers for Medicare and Medicaid (CMS) published an interim final rule with comment period (IFC) on May 8 that provided more flexibility for health care providers “to respond effectively to the serious health threats posed by the spread of COVID-19.” The rule amended Medicare policies on an interim basis to allow any healthcare professional authorized under state law to order COVID-19 serological and antibody testing to do so and pay new collection fees during the public health emergency.
The IFC added a number of other adjustments and changes. Perhaps the most watched is the one that established “explicit reporting requirements for long-term care (LTC) facilities for information related to COVID-19 cases and deaths among facility residents and staff,” including deaths of hospitalized residents.
CMS sent a Memorandum Summary to State Survey Agency Directors about the IFC and described the requirements for nursing homes to report COVID-19 facility data to the Centers for Disease Control and Prevention (CDC), residents, their representatives, and families of residents in facilities. CMS said it would post the data for viewing by facilities, stakeholders, or the general public at https://data.cms.gov.
Facilities which fail to submit complete and accurate information will receive a deficiency citation and be subject to a fine. Unfortunately, the fines are unlikely to ensure compliance. Those who fail to report after a two-week grace period will receive a one-day civil money penalty (CMP) of $1,000, which will increase by $500 for each subsequent week.
Errors and Omissions
When the CMS report came out June 6, the Virginia Mercury called out errors and omissions. Bedford County Nursing Home showed an entry for 90 deaths the week of May 24, but the institution said it had no deaths and did not report that number. The most likely explanation is the number of beds is next to the deaths column, and Bedford has 90 beds. It’s very easy to inadvertently drag a number from one column to the next, and CMS will have to address and correct input errors such as this.
It is true that 29 Virginia nursing homes ignored the requirement to report both for the week ending May 24 and the week ending May 31. Five more failed to report on May 31, but 255 did report at least some of the information.
The Loophole
Although there should be more data than in prior months, a major loophole allows nursing homes to hide their true COVID-19 history. The system is capable of recording information back to January 2020, and facilities were encouraged to do so, but they were not required to submit information prior to May 1.
Canterbury Rehabilitation in Richmond had 32 COVID-19 deaths by April 7, reported the Richmond Times Dispatch, and 45 deaths by April 14, according to the New York Times. The Times called the outbreak “the deadliest linked so far to a U.S. long-term care facility.”
Under the new regulation, Canterbury Rehabilitation reported only 2 deaths as of May 31. The facility could legally do that because it has experienced only two deaths since the May 1 reporting cut-off.
VDH Could Supply the Missing Data
The Virginia Department of Health (VDH) knows the actual numbers of deaths at each facility and has reported them to the CDC. By ignoring definitions in the Code of Virginia, VDH has refused to release data to the public about specific nursing home COVID-19 cases and deaths unless a facility chooses to disclose them.
Writing about the Virginia May 1 press conference, the Richmond Times Dispatch, “State Health Commissioner Norman Oliver resisted calls to begin identifying cases and deaths by facility, as Maryland and North Carolina now do, because he said state law defines a facility as ‘a person’ and protects the data as personal medical information.”
Va Code § 32.1-127.1:03 B. Health Records Privacy, says: “Individual” means a patient who is receiving or has received health services from a health care entity. So while nursing homes are “persons” in the law, they are not patients or individuals.
This leaves another unanswered question of why Attorney General Mark Herring and Health Commissioner Norman Oliver chose to “adjust” the Code’s definitions to favor nursing homes who hide their history over providing the transparency of the data as CMS intended.
Carol J. Bova is a writer who lives in Mathews County.
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