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May 6, 2020

NYS Nursing Homes Must Comply with New Federal, State Requirements for Reporting COVID-19 Cases

The nationwide rise in COVID-19 nursing home deaths has prompted both the NYS and federal government to take swift action. New regulations impose strict requirements on nursing and adult-care facilities to be more transparent about the COVID-19 status of their residents. On April 16, Governor Cuomo issued an executive order requiring nursing and adult-care homes to report COVID-19 cases to family members and next of kin. This was followed by a second executive order the next day providing for penalties for a facility’s failure to provide the required notifications. On April 30, the federal government imposed new reporting obligations on nursing homes.

On the state level, the governor imposed new notification requirements on skilled nursing and adult-care facilities. In pertinent part, New York Executive Order 202.18 states:

“Any skilled nursing facility, nursing home, or adult care facility licensed and regulated by the Commissioner of Health shall notify family members or next of kin if any resident tests positive for COVID-19 or if any resident suffers a COVID-19-related death within 24 hours of such positive test result or death.”

The next day, the governor issued Executive Order 202.19, providing for penalties for violating the notice requirements:

“The directive contained in Executive Order 202.18 requiring any skilled nursing facility, nursing home, or adult care facility licensed and regulated by the Commissioner of Health to notify a family member or next of kin if any resident tests positive for COVID-19 or suffers a COVID-19-related death within 24 hours is hereby modified solely to provide a penalty for non-compliance of $2,000 per violation per day as if it were a violation of section 12 of the public health law, and any subsequent violation shall be punishable as if it is a violation of section 12-b of the public health law.”

While a civil penalty of $2,000 per day for a notification failure is substantial, the order significantly escalates the penalties for “subsequent” violations. A continuing violation may be deemed “willful” and can be prosecuted as a misdemeanor, punishable by a fine or imprisonment, or both. These directives remain in effect through May 17 unless further modified or extended by the governor.

Federal Notification Requirements

On April 30, the US Department of Health and Human Services (HHS) issued new rules governing facilities and imposed new notification requirements amending 42 CFR 483.80(g). Because of the urgency caused by the COVID-19 pandemic, the usual rulemaking process (consisting of notice and a comment period under the Administrative Procedure Act) was waived so the rules can be implemented as soon as possible. These rules are scheduled to take effect on May 8.

Pursuant to the new federal regulations, nursing homes are now required to inform residents, their representatives, and families of those residing in facilities of confirmed or suspected COVID-19 cases in the facility among residents and staff.

Facilities must also:

  • Inform residents, their representatives, and families by 5:00 p.m. the next calendar day following the occurrence of either a single confirmed infection of COVID-19 or three or more residents or staff with a new onset of respiratory symptoms that occur within 72 hours of each other
  • Provide cumulative updates to residents, their representatives, and families by at least 5:00 p.m. the next calendar day following each time a confirmed infection of COVID-19 is identified or whenever three or more residents or staff with a new onset of respiratory symptoms occur within 72 hours of each other
  • Include information on mitigating actions implemented to prevent or reduce the risk of transmission, including whether normal operations in the nursing home will be altered, such as restrictions or limitations to visitation or group activities.

State vs. Federal Notification Requirements

The state and federal notification requirements are not the same, which poses a challenge for facilities. The federal requirements are designed to ensure that residents, families, and representatives receive general information about conditions within a facility. By contrast, New York State requires that families and next of kin be told if their loved one tests positive or dies from COVID-19. The differences between the state and federal requirements are highlighted below:

  • The NYS notification requirements apply to nursing homes, nursing facilities, and adult-care facilities. The federal requirement only applies to nursing facilities.
  • New York State requires actual notice to the family member or next of kin if a resident tests positive for COVID-19 or dies of COVID-19. The federal regulations requires a facility to notify families, representatives, and residents if anyone in the facility tests positive for COVID-19.
  • Notice is required under federal regulation if three or more residents or staff have a new onset of respiratory symptoms (whether or not it is confirmed as COVID-19) occurring within 72 hours of each other. The NYS executive order does not require notification of staff conditions, nor does it have a three-resident threshold.
  • Federal regulations require information to be given regarding actions to mitigate the spread of illness. New York State does not require that this information be included.      
  • Facilities are given 24 hours from the time of a positive test or death to report to families in New York State. Federal law requires notice by 5:00 p.m. the next calendar day (which could fall on a weekend) of conditions within a facility.

Guidance for Nursing Homes and Adult-Care Facilities

The federal regulations impose a general notice requirement stating that any notification must comply with existing privacy regulations and must not include any protected health information (PHI). Therefore, facilities are prohibited from identifying COVID-19 residents when informing families of COVID-19 cases or a new onset of respiratory illnesses. HHS guidance released on February 3 reminded all covered entities that, under the HIPAA Privacy Rule, a covered entity may share PHI with a resident’s family members, relatives, friends, or other individuals identified by the resident as involved in the resident’s care as long as:

  • The covered entity obtains verbal permission from the resident or is otherwise able to reasonably infer that the resident does not object, when possible
  • If the resident is incapacitated or not available, covered entities may share information if, in their professional judgment, doing so is in the resident’s best interest.

The NYS notice requirement is specific to the resident and their family members or next of kin. The executive order did not address the privacy implications in notifying family members or next of kin of a resident’s COVID-19 status. Therefore, facilities should proceed carefully in order to comply with the executive order, HIPAA, and state privacy laws.

Nursing homes and adult-care facilities should review their admission documents and identify the resident’s health care agent and other family members who are allowed to obtain the health care information. The executive order does not define the term “families and next of kin” who are entitled to notice if a resident tests positive for COVID-19. It is recommended that the individuals previously authorized by the resident be contacted by the facility if the resident tests positive for COVID-19. The resident may also give permission for other family members to be contacted, and, in that event, the resident’s authorization should be fully documented in the resident’s medical record.

For residents who lack the capacity to give consent and who did not previously appoint a health care agent or designate an individual to receive information, facilities should determine if the resident has any surrogates listed in the Family Health Care Decisions Act (New York Public Health Law Article 29-CC). The FHCDA sets forth a list of surrogates in order of priority who may make decisions for incapacitated patients. These individuals, in the order listed, would be the appropriate contacts to notify.

If, however, the resident lacks capacity and has no surrogates as listed in the FHCA, there is no family or next of kin to notify. This should be clearly and specifically documented. This information should also be conveyed to public health authorities when the facility reports the case.

Because the federal requirements only require notice of the conditions within a facility and not information regarding a specific resident’s status, facilities are not expected to make individual telephone calls. To comply with federal law, facilities can utilize various communication methods to make the information generally available, including paper notifications, list servs, website postings, or recorded telephone messages. However, because New York State requires actual notice to a family member within 24 hours, facilities must do everything they can to make personal contact with a family member, next of kin, or surrogate in the event a resident tests positive or dies of COVID-19. Facility staff should telephone family members, and it is critically important that staff fully document all efforts to provide the required notice. Telephone attempts, voicemail messages, and conversations must be documented. Verbal notifications should be immediately followed up with a written communication, such as a letter or email, that can then be placed in the resident’s record as evidence that notification was given. At this time, it would be prudent for facilities to verify that all family member and next-of-kin contact information is up to date.

If you have any questions regarding the content of this alert, please contact Fran Ciardullo, special counsel, at fciardullo@barclaydamon.com or another member of the firm’s Health Care & Human Services Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. You can reach our COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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