April 28th COVID-19 Update
In recent days, public health authorities and government regulators have promulgated new COVID-19-related guidance and requirements for providers of long-term/post-acute care (LTPAC) and senior services. These and other developments are outlined below.
As a reminder, LeadingAge NY continues to convene weekly webinars on Mondays at 11 a.m. to address emerging questions on COVID-19. A recording of our most recent webinar, held on April 27th, is available here. In addition to updates from LeadingAge NY staff, this week’s webinar includes a presentation on COVID-19 recovery unit operationalization from David Mercugliano, senior vice president of business development at HealthPRO® Heritage. If you have questions for next week’s webinar, please send them to Ami Schnauber, and be sure to check your email for the access information, or contact Jeff Diamond.
Additionally, LeadingAge NY continues to encourage members to review our questions and answers (Q&As) on operational and regulatory issues related to COVID-19. The Q&As include information on numerous cross-sector issues, as well as issues specific to nursing homes, adult care facilities (ACFs)/assisted living, adult day health care (ADHC), home and community-based services (HCBS), and affordable housing/independent living. To access the Q&As, click here.
Guidance Provided on Economic Stimulus Checks
Millions of Americans have already received their Economic Impact Payments (EIPs) authorized under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). These payments are considered advance tax refunds/credits, so they do not count as income for purposes of government assistance programs including Medicaid, Supplemental Security Income (SSI), Department of Housing and Urban Development (HUD) rent subsidies, the Supplemental Nutrition Assistance Program (SNAP), and others.
On April 13th, the Internal Revenue Service (IRS) began distributing EIPs by direct deposit for those with bank account information on file, based on 2018 or 2019 tax returns. Eligible individuals are receiving $1,200; joint filers are receiving $2,400; and an additional $500 is being paid for each qualifying child claimed on the tax return being used to calculate payment.
People who have not given their direct deposit information to the IRS may have to wait several weeks for a paper check to be mailed out. Any individual can check on the status of his/her payment, including the amount and the anticipated distribution date, at this IRS webpage. Some eligible individuals may have to provide additional information to the IRS to get their payments. Social Security, SSI, and Social Security Disability Insurance recipients are automatically receiving EIPs, even if they did not file tax returns for the relevant years. These individuals will receive EIPs as they would normally receive their benefits, whether through direct deposit, Direct Express card, or paper check.
Under the Internal Revenue Code [26 U.S. Code §?6409], “Notwithstanding any other provision of law, any refund (or advance payment with respect to a refundable credit) made to any individual under this title shall not be taken into account as income, and shall not be taken into account as resources for a period of 12 months from receipt, for purposes of determining the eligibility of such individual (or any other individual) for benefits or assistance (or the amount or extent of benefits or assistance) under any Federal program or under any State or local program financed in whole or in part with Federal funds.” Based on this authority, the following clarifications have been issued relative to EIPs and government assistance programs:
- The Social Security Administration confirmed that “[it] will not consider economic impact payments as income for SSI recipients, and the payments are excluded from resources for 12 months.” This interpretation for SSI has implications for Medicaid, which does not use more restrictive eligibility rules than those of SSI.
- According to HUD, “household stimulus payments of up to $1,200 (which is technically an advance tax credit) and the temporary $600 per week federal enhancement to unemployment insurance provided by the CARES Act are not to be included in calculations of income.”
- The Department of Health (DOH) has issued General Information System (GIS) 20 MA/05 to local departments of social services (LDSSs) indicating that the EIPs are “not taxable income and therefore not countable in [Modified Adjusted Gross Income (MAGI)]-based eligibility determinations. For non-MAGI determinations, rebates are not countable as income and are an exempt resource for 12 months. After the 12-month period any portion of the stimulus payment remaining is a countable resource.” The memo goes on to clarify that these payments are not counted in determining the amount of income to be contributed toward the cost of care under post-eligibility rules.
Accordingly, the EIPs will not count as income in the month received or as assets for 12 months for SSI or Medicaid purposes. This means that nursing home residents’ Net Available Monthly Income (NAMI) will not change as a result of these payments, nor should ACF residents’ facility fee. Medicaid Assisted Living Program (ALP) rates and the amount of the spend-down for ALP residents will also not be affected. Provided the resident’s countable resources are spent down to the applicable resource limit within 12 months, the payment would not result in the resident having “excess resources” for purposes of Medicaid or SSI. Facilities should deposit these funds into any resident fund accounts that they manage and may consider providing advice to residents/families on spending these funds.
The CARES Act precludes offsetting amounts owed to the federal government such as income tax liabilities from the EIPs but includes no such prohibition on private creditors. Various states and interest groups have asked the federal government to clarify that EIPs be exempted from debt collections, but so far this has not occurred. On this basis, it may currently be possible for a nursing home or other provider to seek payment of resident liabilities (e.g., unpaid NAMI amounts) from EIP amounts. Members should consult with their counsel for more specific advice on this issue.
CARES Act Provider Relief Funding
The CARES Act allocates $100 billion for COVID-19-related health care provider relief. $50 billion of that is being distributed proportionately as “general relief” funding. This general relief does not require an application for most providers but does require recipients to agree to specified terms and conditions and to submit tax and COVID-19-related cost information to retain the funding.
$50 billion of CARES Act funding is dedicated for targeted relief. This includes impacted hospitals, rural providers, those serving the uninsured, and “some providers who will receive further, separate funding, including skilled nursing facilities, dentists, and providers that solely take Medicaid.” It appears that the Department of Health and Human Services (HHS) is still developing programs to distribute the targeted funding, although providers may begin applying for reimbursement for COVID-19 testing and treatment of uninsured patients (as described below).
The Paycheck Protection Program (PPP) and Health Care Enhancement Act signed into law on April 24th allocates an additional $75 billion for provider relief, but allocation of that funding is not yet clear.
- General Relief
Members who filed a 2018 Medicare cost report began receiving distributions from the second wave of federal CARES Act provider relief funding on Fri., April 24th. The funds should appear as a direct deposit into provider accounts via Optum Bank and should be identified as HHSPAYMENT or similar in the payment description. The second wave distributes $20 billion and is calibrated to ensure that the share of the total $50 billion that each provider receives (i.e., the $30 billion distributed initially plus the $20 billion of second wave funding starting today) is based on net patient revenue reported on 2018 Medicare cost reports. The sum of the two relief payments should approximate 2 percent of the net patient revenue for all payers that a provider reported on its 2018 Medicare cost report.
Recipients of the funds are required to agree to terms and conditions within 30 days and to also submit tax and COVID-19-related expense information into a new HHS portal available here. Recipients are required to agree to submit the following information:
- Program Service Revenue as submitted on federal income tax returns;
- Estimated revenue losses in March 2020 and April 2020 due to COVID-19;
- A copy of the provider’s most recently filed federal income tax return;
- A listing of the tax identification numbers (TINs) for any of the provider’s subsidiary organizations that have received relief funds but that DO NOT file separate tax returns.
Recipients will also eventually be required to submit documentation verifying that the funds were used for health care-related expenses or lost revenue attributable to coronavirus.
While the terminology used in the three resources is not always consistent, key information on the funding is provided in an HHS Frequently Asked Questions (FAQ) document here, as well as through an educational online guide available here. The HHS Provider Relief Fund website that describes the various allocations is available here. A set of helpful Provider Relief Fund FAQs that include key considerations for members that was developed by LeadingAge National is available here.
Please note that some of the information posted on the HHS site has been changing in recent days, and we will advise members if changes are made that impact the information above.
- Targeted Relief
HHS will provide claims reimbursement to health care providers generally at Medicare rates for testing uninsured individuals for COVID-19 and treating uninsured individuals with a COVID-19 diagnosis. Providers are able to register for that program beginning April 27th for testing and treatment provided on or after Feb. 4, 2020. The program is being administered by the Health Resources and Services Administration (HRSA). More information is available here.
After being suspended due to depletion of funds, both the PPP and Economic Injury Disaster Loan (EIDL) program are expected to resume accepting applications thanks to additional appropriations contained in the PPP and Health Care Enhancement Act, which was signed into law on April 24th. Unfortunately, while more funding was added, the eligibility criteria appear unchanged: applicants must have 500 or fewer workers (full-time, part-time, casual), including affiliated entities (defined here).
The Small Business Administration (SBA) resumed accepting applications for PPP forgivable loans on April 27th. The SBA’s dedicated PPP page is available here, and a PPP Borrower Fact Sheet is here. Borrowers access the program through their local bank.
Information on the EIDL program, which includes a potentially forgivable $10,000 advance, is available here. Please note that as of this writing, the SBA has not yet indicated when it will begin accepting additional EIDL applications; it has only indicated that it “will resume processing EIDL Loan and Advance applications that are already in the queue on a first come, first-served basis” and “will provide further information on the availability of the EIDL portal to receive new applications as soon as possible.”
Due to the popularity of the programs, we urge members who are interested in the opportunity to act as quickly as possible. For a quick overview of both programs, please see our COVID-19 financial relief document available here. We remind members that this document provides information on other programs as well and has recently been updated to reflect the latest developments.
New Guidance Regarding Voluntary Plan of Care Changes
On April 23rd, DOH issued new guidance regarding voluntary plans of care to all Medicaid Managed Care Plans (MMCPs), including Managed Long Term Care (MLTC) plans, Programs of All-Inclusive Care for the Elderly (PACE), HIV Special Needs Plans (SNPs), Health and Recovery Plans (HARPs), and LDSSs.
The guidance serves as a reminder that Medicaid consumers, including those receiving personal care through a licensed home care services agency (LHCSA) or the Consumer Directed Personal Assistance Program (CDPAP), may voluntarily and temporarily request a modification of their approved care plan. It gives examples of reduced hours of service, changed days of service, or changed times of day of services. This is reflective of what is already happening on the ground with many members/consumers refusing care in the home to prevent potential exposure to COVID-19.
To facilitate a voluntary care plan, plans and LDSSs must:
- Document the consumer’s request for a schedule change in the voluntary care plan and the date of this request;
- Ensure that the voluntary care plan will allow the consumer to remain safely in the community;
- Upon the consumer’s request, send by mail or secure electronic transmission to the consumer a copy of the voluntary care plan for the consumer’s signature and return to the MMCP or LDSS;
- Implement the voluntary care plan only upon receipt of the copy of the voluntary care plan signed by the consumer;
- Implement a process to contact the consumer, including by telephone, email, or text, to monitor that the voluntary care plan is in place and to identify the need for any other Medicaid-covered services, including but not limited to medical supplies, durable medical equipment, and medication;
- Using the above process, reconfirm the consumer’s continued agreement with the voluntary care plan at least every 90 days;
- Terminate the voluntary care plan upon request of the consumer, including a telephonic request, and reinstate the services included in the authorized care plan as soon as possible, but no later than 72 hours of receiving such request; and
- Confirm in writing to the consumer and the LHCSA that the voluntary care plan has been terminated and that the authorized care plan in place prior to the modifications is in effect.
Plans and LDSSs are authorized to reach out to consumers they identify as appropriate for a voluntary care plan. They may consider the level of care of the consumer, whether care has been refused or cancelled, and potential access to informal care and other services. The guidance prohibits MMCPs and LDSSs from requiring a consumer to consent to a voluntary care plan.
LeadingAge NY recognizes that the documentation process required for a voluntary care plan is impractical for many consumers, agencies, and plans and will be advocating for a more streamlined approach to voluntary care plans initiated by members/consumers.
PCORI Presents Webinar on Transitions of Care from Hospitals to Nursing Homes and Home Care Agencies
On April 28th, the Patient-Centered Outcomes Research Institute (PCORI) hosted a webinar focused on transitions of care from hospitals to nursing homes and home care agencies. LeadingAge NY members Marie Rosenthal of ArchCare and David Rosales and Susan Northover of Visiting Nurse Service of NY were featured panelists. They spoke of the challenges their organizations are facing and strategies they have adopted surrounding the admission, care, and discharge of COVID-19 patients. A recording is available here.
Nursing Home Updates
CDC Clarifies Reporting Requirements for Nursing Homes
The Centers for Disease Control and Prevention (CDC) has provided additional information regarding the COVID-19-related reporting requirements for nursing homes that were previewed in a memo to state survey agencies on April 19th. As described in the memo, nursing homes will be required to report to the CDC suspected or confirmed cases of COVID-19 among residents or staff, residents with severe respiratory infection resulting in hospitalization or death, and clusters of three or more residents or staff with new-onset respiratory symptoms. The Centers for Medicare and Medicaid Services (CMS) and CDC will soon provide nursing homes with specific direction on standard formatting and frequency for reporting this information through the CDC’s National Healthcare Safety Network (NHSN) system. LeadingAge National has obtained additional information about the CDC reporting and has posted Q&As on its website. Nursing homes will have to enroll in the CDC’s NHSN in order to comply with the requirement. The CDC is in the process of creating an expedited enrollment process that offers more limited access to the site. Notably, the CDC reporting requirements will not take effect until regulations are promulgated.
LeadingAge NY members are also well aware that, as previously reported, both the federal and state governments have issued memoranda and directives over the past 10 days aimed at notifying family members about COVID-19 cases in facilities. The State is requiring both nursing homes and ACFs to notify family members of all residents, within 24 hours, when any resident tests positive for COVID-19, or when any resident suffers a COVID-19-related death. This requirement is not limited to family members of affected residents. While the state directives are currently in effect, the federal notification requirements, like the CDC reporting requirements, will not take effect until regulations are adopted. In addition, it is worth noting that the state directives apply to both nursing homes and ACFs, while the federal requirements will apply only to nursing homes.
NextStep Provides Free Temporary CNA Training
NextStep, a startup that trains and places workers into high-demand health care roles, has launched a National Temporary Nurse Aide Certification course for employers who want to re-skill incumbent workers (e.g., housekeeping, dietary) for direct care. Enrollment is free through May 8th with code HERO2020.
Affordable Housing/Independent Living Updates
Construction as an Essential Service in Retirement Communities
As the COVID-19 pandemic continues, independent living providers such as standalone retirement communities may seek to prepare units, such as with painting or other renovations, to be rented to new individuals. Questions have arisen as to whether this is an essential service and therefore exempt from the construction limitations found in Executive Order 202.6. Residential landlords have been advised that they may undertake such activities to ready units for a new tenant during this time under the “building cleaning and maintenance” definition of essential business activity, and to the extent any construction is required, they must follow the single worker on the jobsite guidance rule – this is currently being interpreted as one tradesperson on site at a time.
This differs slightly from the continuing care retirement community (CCRC) analysis, which would permit construction to be done without the limitation of the single worker rule, as the CCRC already meets the requirement for allowed construction as an essential business. (A CCRC’s "essential business" designation stems from the exemption within the Executive Order that includes senior/elder care, nursing homes, residential health care facilities, or congregate care facilities as essential businesses.) For independent living outside of the CCRC, construction is permitted only if they follow the single worker rule.
For construction work within a CCRC, however, it is recommended that the CCRC follow the single worker on the jobsite guidance, so if a contractor were having different people paint and perform renovations, they would want to stagger the time that they are working.
Further guidance regarding exemptions from Executive Order 202.6 may be found here.