Hospitals Ask HHS for Covid Data Guidance With Funding at Stake

Hospitals say they’re driving blind without guidelines to interpret a new rule from the Trump administration requiring them to report daily Covid-19 data to the federal government.

The interim final rule, which took effect Sept. 2, requires the nation’s 6,200 Medicare- and Medicaid-certified hospitals to provide daily updates to the Department of Health and Human Services on numerous Covid-related measures like infections, test results, ICU patient counts, and supplies of protective gear.

Hospitals risk being excluded from both federal health programs if they fail to comply with the new “conditions of participation.” “Hospitals will face possible termination of Medicare and Medicaid payment if unable to correct reporting deficiencies,” the Centers for Medicare & Medicaid Services warned.

In a recent letter to the CMS, the Federation of American Hospitals said the rule “undermines the ongoing collaboration and good will to which CMS committed itself at the beginning of the public health emergency.”

“Even the threat of Medicare decertification has untenable consequences for patient care. We urge you to reconsider,” the FAH wrote.

The American Hospital Association, which wants the rule rescinded, asked the CMS to quickly draft guidance that spells out hospitals’ rights and responsibilities under the rule. But nearly a month later, nothing has been issued and hospitals are getting antsy.

“It has certainly has raised some anxiety among hospitals,” said Nancy Foster, AHA vice president of quality and patient safety policy. “There is this delay in them knowing exactly what’s expected of them and of whom it’s expected.”

Most U.S. hospitals, including short-term acute care facilities; long-term care hospitals; and rehabilitation, cancer, children’s and critical access hospitals would be subject to the rule.

Psychiatric Hospitals

That includes psychiatric hospitals, which largely stopped caring for patients with Covid-19 early in the pandemic, Foster said. Instead, they usually transfer those patients to short-term acute care hospitals with psychiatrists on staff, Foster said.

“So psych hospitals thought they weren’t supposed to be reporting,” Foster said. “HHS had essentially said, ‘We get it. You’re not caring for these patients. We don’t need your data.’”

But the conditions of participation apply to them. “So now the question is what are they supposed to be reporting? And do they really have to go count all the gloves and so forth they have on hand when they’re really not the organizations caring for Covid patients?” she said. “We won’t know the answer to that question until the interpretive guidance comes out.”

The CMS didn’t respond to a request for comment. The interim rule said the hospital data will help both surveillance of Covid-19 and planning to stop its spread.

The information will also “greatly assist the White House Coronavirus Task Force in tracking the movement of the virus,” the rule said. The “completeness, accuracy, and timeliness of the data” will “inform task force decisions on capacity and resource needs to ensure a fully coordinated effort across the nation” the rule said.

Foster said hospitals also need new guidance to know what data is most valuable to the CMS and how a hospital can challenge a determination of non-compliance.

Hospitals rely on their states or private contractors to provide their Covid-19 data to the HHS, Foster said. And there are “missed steps along the way” that can keep the information from being filed, uploaded, and forwarded in a timely fashion, she said.

“How is CMS going to adjudicate that? What’s that look like? That’s the question we’re asking,” she said. “How are we going to make sure that there’s a meeting of minds about what actually happened and why the data didn’t get in and who should be accountable for that?”

The AHA and the Federation of American Hospitals both oppose the rule, which took effect only days after it was announced on Aug. 25. The groups don’t like that it was enacted without consultation and without feedback through the formal rulemaking process.

‘Heavy-Handed’ Rule

Any concerns about hospital data reporting would have been better handled cooperatively, rather than with a “heavy-handed” rule, Foster said. She said 94% of hospitals were already providing Covid data to the HHS and the AHA was working with the CMS to identify and assist hospitals that weren’t.

In the rule, the CMS noted that mandatory Covid reporting for nursing homes—and fines for violators—helped push compliance to 98%. Since the CMS can’t impose civil monetary penalties against hospitals, “we will continue to utilize all enforcement and payment authorities available to incentivize and promote compliance,” the rule said.

Foster said she expects the CMS will first notify noncompliant hospitals of their violations and seek a corrective action plan.

And even though outright ouster from Medicare and Medicaid is unlikely, “no hospital takes a condition of participation as a suggestion,” Foster said.

“If CMS gets serious enough about something to make it a condition of participation, they are sending a signal to the field ‘you must be in compliance with this.’ And hospitals want to be in compliance with federal regulations,” she said.