Hospital and nursing home leaders didn’t hold back in their blunt criticism of CMS’ new requirements around COVID-19 testing and data reporting, characterizing them as overly burdensome.
CMS received almost 170 comments by yesterday’s deadline on its interim final rule, which requires nursing homes to routinely test staff and residents for COVID-19. The rule also requires hospitals to report COVID-19 data daily or face losing their Medicare reimbursement, a penalty the industry said is unnecessarily harsh.
“Threatening our nation’s frontline hospitals and health systems with termination of their Medicare participation as a penalty for noncompliance is at once heavy-handed, unnecessary, and irrational,” Cathleen Bennett, CEO of the New Jersey Hospital Association, wrote in a Sept. 2 letter. The head of Missouri’s hospital trade group called the rule “unexpected and jarring.”
A CMS spokesperson wrote in an email Tuesday that the agency looks forward to a careful review of submitted comments before addressing next steps.
Under the rule, which took effect Sept. 2, 2020, hospitals must report their number of confirmed or suspected COVID-positive patients, ICU beds occupied and the availability of supplies and equipment like ventilators and personal protective equipment.
Tom Nickels, executive vice president of the powerful hospital lobbying group the American Hospital Association, urged CMS in an Nov. 2 letter to withdraw the new condition of participation clause, among other changes. Nickels argued that CMS’ action “erodes and demeans” the value of its Medicare conditions of participation, establishing the “disturbing precedent of relying on CoP-level enforcement to meet any demand the agency seeks to impose upon hospitals and health systems.”
In its own Nov. 2 letter, the Children’s Hospital Association called the termination threat “excessive and unnecessary,” citing HHS’ own statistic that show 94% of hospitals are reporting COVID data to the federal government.
St. Louis-based Ascension’s Chief Advocacy Officer, Peter Leibold, wrote in an Nov. 2 letter that by making COVID-19 data reporting a condition of participating in Medicare, CMS is threatening a financial lifeline for hospitals. Leibold strongly encouraged the agency to find an alternative approach, arguing the harm inflicted on hospitals would far exceed that caused by the violation.
Many of the comments were from nursing home operators and the trade groups that represent them. The interim rule requires nursing homes in areas with high COVID-19 positivity rates to test all of their staff twice weekly. Facilities in areas with slightly lower rates will have to test once per week, or once a month if the county’s positivity rate is less than 5%.
Facilities that don’t comply could face fines of $400 per day or more than $8,000 for a case of noncompliance. They could also be denied future payment.
The American Health Care Association—a trade group that represents more than 14,000 nursing homes, assisted living facilities and other facilities—wrote in an Oct. 29 letter that it agrees staff testing should be based on the rate of community infection, but asked the agency to reconsider its twice weekly test requirement for some areas.
Testing all nursing home employees nationwide for COVID just once would cost an estimated $160 million, and testing all residents would cost $130 million, the AHCA estimated. The group noted doesn’t include indirect costs of testing or other direct costs.
Tammy Pettijohn, the administrator of Sunporch of Smith County, a long-term care facility in rural Kansas, wrote in her comment that her community positivity rate is 0% and she does not have the staff to pull someone from their regular work to perform testing on asymptomatic staff.
“This is an unfunded mandate that is impossible to meet,” Pettijohn wrote.
CMS said it has helped nursing homes comply by sending out 15,000 rapid point-of-care testing devices. While Pettijohn wrote that her facility’s machine is an “awesome gift,” they probably won’t have enough supplies left to use it to test residents after they’ve tested all staff members.
“What a precious waste and an injustice for the elders we serve in Kansas,” she said.
Other nursing home leaders made similar comments, arguing the testing requirement will further exacerbate their staffing strains, taking employees away from residents suffering the effects of isolation.