On October 6, 2020, CMS announced new enforcement measures to ensure hospitals report daily COVID-19 data, with the exception of psychiatric and rehabilitation hospitals that must report weekly, to the federal government during the COVID-19 public health emergency. Any hospitals that are in non-compliance will receive a series of escalating notification and enforcement letters over the next 14 weeks that may lead to termination from the Medicare and Medicaid programs. CMS also announced that it will be adding data fields for influenza to the reporting requirements, which will be optional for hospitals to report beginning October 19, 2020, but CMS expects to make influenza reporting mandatory within the coming weeks.

The new guidance was announced by the CMS Quality Safety & Oversight Group and follows the September 2, 2020 interim final rule, which made compliance with the daily reporting requirements a condition of participation in Medicare. The new guidance states that hospitals that fail to report the specified data elements on a daily basis will receive the following notification and enforcement letters over the next 14 weeks:

• Between October 7 and November 18, 2020, hospitals that do not meet the reporting requirements completely on a daily basis will receive an initial notification from CMS reminding the hospitals of the reporting requirements. Three weeks after receiving this initial notification of noncompliance, those providers that continue to not submit the specific information daily and completely will receive a second reminder notification.

• Providers that continually fail to meet the reporting requirements after the initial six-week period will receive the first in a series of enforcement notification letters. This is the beginning of the enforcement action and providers will have one calendar week to demonstrate compliance. Providers failing to meet the reporting requirements within one calendar week will receive a second enforcement letter, and then a third if the provider remains non-compliant the following week. The third letter will inform the provider that it has one additional week to demonstrate compliance with the reporting requirements, otherwise the provider will receive a fourth and final enforcement letter. The fourth letter will include a notice of termination of the Medicare provider agreement to become effective within 30 days of the date of the notification unless the provider demonstrates compliance with the daily reporting requirements during the 30-day period.

• For any non-compliance identified after November 18, 2020, the series of enforcement letters will begin immediately, without any of the reminder notifications. Providers that are terminated from Medicare for failure to comply with the regulatory reporting requirements will have a right to appeal.

CMS also announced on October 6, 2020 that influenza fields will be added to the online portal for optional daily reporting beginning October 19, 2020, and CMS expects to make these influenza fields mandatory for daily hospital reporting within the coming weeks. The new fields will be added to the end of the existing templates, and the current templates will continue to work until states and hospitals adopt the new fields.

CMS uses the data that hospitals report daily during the COVID-19 public health emergency to make decisions regarding the allocation of supplies, treatments and other resources. Hospitals’ daily reporting to CMS is the only mechanism used for the distribution calculations for Remdesivir and other treatments and supplies. If a hospital does not have the ability to report on weekends or holidays, the data can be submitted on the next business day.

The CMS Quality & Safety Oversight memorandum that sets forth the new enforcement measures can be found here. The interim final rule making daily reporting of COVID-19 data a condition of participation can be found here. The updated FAQ on the new CMS enforcement measures can be found here.