New DOH Guidance Released on Hospital Discharges and Staff Testing; Questions Remain on Other Guidance
Last week, the Department of Health (DOH) issued updated guidance on nursing home staff and resident testing and testing prior to hospital discharge, addressing some of the questions that arose with the rescission of the state's public health emergency (PHE). The following are some key highlights of the new guidance and outstanding issues:
Staff and Resident Testing
Released on July 1st, although dated June 25, 2021, the staff and resident testing guidance explicitly adopts guidance issued by the Centers for Medicare and Medicaid Services (CMS). It requires all nursing homes to test, or arrange for the routine COVID-19 testing of, all personnel who have not been fully vaccinated once per month consistent with county positivity rates. The monthly testing frequency applies in any county with a positivity rate of less than 5 percent; all counties in New York currently have rates below 5 percent. County positivity rates are posted here and updated weekly. Facilities are required to report positive test results to the Department by 1 p.m. of the day following receipt of such test results. In addition, facilities that operate limited service laboratories and perform point-of-care tests must continue to follow Electronic Clinical Laboratory Reporting System (ECLRS) reporting requirements. DOH will continue to distribute Abbott BinaxNOW COVID-19 antigen tests to nursing homes for this purpose. Facilities must continue to "screen all staff, residents (daily) and all persons entering the facility, such as vendors, volunteers, and visitors, for signs and symptoms of COVID-19."
Under the CMS guidance, facility staff includes "employees, consultants, contractors, volunteers, and caregivers who provide care and services to residents on behalf of the facility, and students in the facility’s nurse aide training programs or from affiliated academic institutions." The CMS guidance also notes that the facility may have a provision under its arrangement with a vendor or volunteer that requires them to be tested from another source (e.g., their employer or on their own). However, the facility is still required to obtain documentation that the required testing was completed during the timeframe that corresponds to the facility’s [required] testing frequency." CMS testing Frequently Asked Questions (FAQs) are available here.
In addition to monthly routine testing of unvaccinated staff, the DOH guidance requires facilities to test any resident or staff with signs or symptoms of COVID-19, regardless of vaccination status, along with any other medically appropriate testing (e.g., viral respiratory pathogens). Staff must be restricted from the facility pending the results of COVID-19 testing. Notably, the DOH guidance provides that if COVID-19 is confirmed, facilities and staff must follow Centers for Disease Control and Prevention (CDC) return to work requirements for facility staff working in nursing homes. Generally, the CDC recommends a symptom-based strategy for determining when staff may return to work after a COVID-19 diagnosis, rather than a test-based strategy. The duration of the furlough varies based on the level of illness and whether or not the staff member is severely immunocompromised. When a staff member is asymptomatic or has mild to moderate illness, the CDC recommends a 10-day exclusion period. DOH's reference to the CDC guidance indicates that it is no longer imposing a blanket requirement of a negative test prior to a staff member's return to work, although it has not stated this explicitly. A negative test may be advisable in certain cases under the CDC guidance, such as when a staff member is severely immunocompromised.
Likewise, when an outbreak is identified, all staff and residents must be tested immediately for COVID-19, regardless of vaccination status. The DOH guidance refers facilities to CDC testing guidance for nursing homes updated in January 2021. However, CMS updated its testing guidance for nursing homes in April 2021 and also includes outbreak testing requirements that facilities must follow.
When a staff member or resident is exposed to COVID-19, the DOH guidance directs facilities to follow the CDC guidance on testing in response to exposures. The CDC recommends that asymptomatic health care personnel who have a higher-risk exposure and residents with prolonged close contact with someone with COVID-19, regardless of vaccination status, have a series of two viral tests for SARS-CoV-2 infection. In these situations, testing is recommended immediately and five to seven days after exposure. Under the CDC guidance, people who have had COVID-19 in the last 90 days do not need to be tested if they remain asymptomatic, including those with a known contact.
Testing Prior to Hospital Discharge to Nursing Home or ACF
On July 2nd, DOH issued guidance rescinding the requirement for hospitals to test patients for COVID-19 prior to discharge to a nursing home or adult care facility (ACF). The guidance states that facilities must accept only those residents "for whom they are capable of providing appropriate and necessary care." Further, DOH "strongly encourages hospitals that, as a condition of safe discharge pursuant to existing regulatory obligations [of hospitals] under 10 NYCRR 405.9(h)(1), they test patients for COVID-19 prior to discharge to any congregate care setting, including but not limited to nursing homes and adult care facilities and sharing such results with the accepting facility." In light of this new guidance, nursing homes and ACFs may accept residents who test positive for COVID-19 if the facility has the staffing and personal protective equipment (PPE) necessary to care for the resident and the requisite space to isolate the resident until they meet the requirements for discontinuing transmission-based precautions.
Open Issues: Testing Exemptions for Standing Orders and Unlicensed Personnel
The lifting of the state PHE eliminated regulatory flexibilities that allowed physicians and nurse practitioners to issue standing orders for COVID-19 testing and vaccinations and authorized unlicensed personnel to collect specimens for COVID-19 testing. At this time, it appears that a patient-specific order is required for COVID-19 tests and vaccines. It also appears that only licensed professionals may collect COVID-19 specimens. However, the State Education Department (SED) has indicated on its website that it will exercise enforcement discretion:
Please be advised that the COVID-19 Disaster Emergency declared by the Governor, pursuant to Executive Order 202 issued on March 7, 2020, and each successor Executive Order to Executive Order 202 have expired as of June 25, 2021. While the several exceptions and authorizations relevant to the Title VIII statutes and regulations contained within these Executive Orders have now expired, the Department understands the concern regarding the short notice of the expiration of the COVID-19 Disaster Emergency and will take that into consideration in the event of any potential inquiries involving activity that had previously been authorized by Executive Order 202 and its successor Executive Orders at this time. However, Title VIII professionals should exercise due diligence and good faith efforts to return to compliance with all Title VIII statutory and regulatory requirements without delay. Please be advised that The Declarations of the Secretary of the United States Department of Health and Human Services issued pursuant to the federal Public Readiness and Emergency Preparedness (PREP) Act remain in effect and continue to provide certain authorizations and exemptions for many professions and activities related to the ongoing COVID-19 emergency response including, allowing an expanded list of professionals to administer vaccine or to administer COVD-19 testing. Information about the PREP Act can be found on our website. The Department is working closely with other New York State agencies and the Governor’s Office to clarify issues relating to the expiration of the Disaster Emergency and the reinstatement of laws and regulations that have been previously modified or suspended during the COVID 19 Disaster Emergency. Please continue to monitor the Department’s website for updated guidance.
Open Issues: Visitation and Travel
With the rescission of the state PHE, the continued effectiveness of the State's visitation guidance for nursing homes and the travel-related quarantine requirements remain in question. The State's travel advisory has been replaced with the following message: "As of June 25, 2021, the New York State Travel Advisory is no longer in effect. As such, travelers arriving in New York are no longer required to submit traveler health forms. All travelers, domestic and international, should continue to follow all CDC travel requirements." A summary of the CDC guidance is available here. We understand that the CDC guidance referenced by the State's website does not provide an exemption from quarantine for unvaccinated people who travel to and from contiguous states. Since the State's prior, more restrictive guidance allowed for unlimited travel between contiguous states, we assume that this is still permitted and are seeking confirmation from DOH.
The rescission of the state PHE has also called into question the effectiveness of the State's nursing home visitation guidance. While the State's guidance is generally consistent with the CMS visitation guidance for nursing homes, there are a few differences between the two guidance documents with respect to social distancing and unmasking for vaccinated residents, staff, and visitors. In addition, while the wording of the two guidance documents concerning visitation during outbreaks is generally the same, we understand that DOH staff have been interpreting the CMS guidance to suspend outdoor visitation during outbreaks, when this is not CMS's intent. We received the following clarification from the CMS Division of Nursing Homes Triage Team via email:
- Outdoor visitation is not suspended during the first round of outbreak testing; only indoor visitation is suspended.
- During a single unit/area outbreak, the facility should suspend indoor visitation for residents on the affected unit until the facility meets the criteria to discontinue outbreak testing. Outdoor visits are still permitted.
- If outbreak testing reveals one or more additional COVID-19 cases in other areas/units of the facility (e.g., new cases in two or more units), then facilities should suspend indoor visitation for all residents (vaccinated and unvaccinated), until the facility meets the criteria to discontinue outbreak testing. Outdoor visits are still permitted.
We have been informed that DOH will be issuing new visitation guidance shortly and will notify members as soon as we receive it.
Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8838