Aug. 18th COVID-19 Update

New COVID-19-related updates for providers of long-term/post-acute care (LTPAC) and senior services continue to be shared on a regular basis by both state and federal authorities. The latest 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 Aug. 17^th, is available here. If you have questions that you would like answered during next week’s update or would like the access information, please contact Jeff Diamond.

Cross-Sector Updates

New York Updates Travel Advisory List

LeadingAge NY has been tracking the COVID-19 Travel Advisory requiring people to quarantine if traveling to New York from certain states, with certain conditional exceptions for essential workers. On Aug. 18^th, the Governor announced that Alaska and Delaware have been added, while no states have been removed. Click here for more information and an archived list of states as they have been added or removed.

Nursing Home and Adult Care Facility (ACF)/Assisted Living (AL) Updates

Emergency Regs Require Nursing Homes to Stockpile PPE

The Department of Health (DOH) published an emergency rule in the Aug. 12, 2020 State Register requiring nursing homes to acquire and maintain a 30-day supply of personal protective equipment (PPE) by Aug. 31, 2020 and a 60-day supply by Sept. 30, 2020. The latter deadline can be extended to Oct. 30^th based on extenuating circumstances. The emergency regulations became effective July 22, 2020. Meanwhile, LeadingAge NY and its members await DOH guidance on nursing home pandemic emergency plans, which must be prepared and made available to the public by Sept. 15^th pursuant to Chapter 114 of the Laws of 2020.

Under the emergency regulations, each nursing home “shall possess and maintain” a supply of all necessary items of PPE sufficient to protect facility personnel, consistent with federal Centers for Disease Control and Prevention (CDC) guidance, for at least 30 days at rate of usage equal to the average daily rate that PPE was used between April 19^th and April 27, 2020 by Aug. 31, 2020. By Sept. 30^th, the facility must have an inventory of at least 60 days of PPE at the same rate of usage. DOH may extend the Sept. 30^th deadline for a 60-day supply to Oct. 30^th upon request by a facility that demonstrates:

Its inability to meet this deadline is solely due to supply chain issues that are beyond the facility’s control, and purchasing PPE at market rates would facilitate price gouging by PPE vendors; or
The seven-day rolling average of new COVID-19 infections in New York State remains below 1.5 percent of the total seven-day rolling average of COVID-19 tests performed over the same period, and there are 10 or fewer states in the U.S. that have a seven-day rolling average of new COVID-19 infections exceeding 5,000 cases.

For purposes of the regulation, PPE includes masks, gloves, respirators, face shields, and gowns. Failure to comply may result in suspension or revocation of the facility’s operating certificate; however, facilities will be granted a 14-day grace period to come into compliance following a first violation. Under Chapter 114 of the Laws of 2020, nursing homes will be required as part of their pandemic emergency plans due by Sept. 15^th to “maintain or contract to have at least a two-month supply of personal protective equipment.” Compliance with these regulations (which require the facility to actually acquire and maintain the PPE) will also satisfy the requirement in law. DOH has yet to issue guidance on developing the required pandemic emergency plans.

New York Nursing Homes Selected by CMS to Receive Point-of-Care COVID-19 Tests

The Centers for Medicare and Medicaid Services (CMS) announced several weeks ago that it will be distributing COVID-19 point-of-care testing instruments and tests to nursing homes nationwide for testing of staff and residents. Facilities have been selected for the distribution based on data reported through the CDC’s National Healthcare Safety Network (NHSN) survey. An updated list of facilities that will receive tests was posted on Aug. 6^th and includes several dozen New York nursing homes. CMS has also posted Frequently Asked Questions (FAQs) about the distribution of the tests. Click here for more information.

FHA Extends Flexibilities for Existing Insured Mortgage Borrowers

While the Department of Housing and Urban Development (HUD) instituted a formal loan forbearance program for insured multifamily mortgage loans in April under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the Act does not include a similar forbearance option for health care mortgage loans. However, the Federal Housing Administration’s (FHA) Office of Healthcare Programs has updated its Questions and Answers for External Stakeholders as of Aug. 12, 2020, which provides eligible nursing home and assisted living facility borrowers with increased payment flexibility under the Section 232 and Section 242 mortgage insurance programs.

Even though HUD does not have statutory authority under the CARES Act to provide forbearance to all FHA-insured mortgagors, the FHA Lender and borrower can mutually agree to a forbearance and request HUD’s approval of the same. The Office of Residential Care Facilities (ORCF) will work with lenders on an expedited basis on these requests.

Lenders are authorized to approve the following types of transactions for Section 232-insured facilities impacted by COVID-19 without the need for HUD review or approval:

Provided the Replacement Reserve is funded to at least $1,000 per unit, suspend monthly deposits into the reserve through Sept. 30, 2020, or longer if the authority is extended. At the conclusion of the suspension, the sum of the suspended payments must be paid into the reserves for replacement in equal monthly increments over the next 12 consecutive months;
Use Operating Deficit funds to meet debt service payments (including required escrow and Mortgage Insurance Premium (MIP) payments), subject to repayment provisions, if any, included in the escrow agreement;
Use Debt Service Reserves to meet debt service payments (including required escrow and MIP payments), subject to repayment provisions, if any, included in the escrow agreement; and
Use Replacement Reserve accounts to meet debt service payment requirements, provided the account balance does not fall below $1,000 per unit.

Borrowers/Operators must demonstrate, to the Lender’s satisfaction, that their request is for a bona fide need resulting from the impacts of COVID-19. The above payment flexibilities are now available through Sept. 30, 2020. Lenders are authorized to approve them without the need for HUD review, provided the subject property is not bound by either a Master Lease or any type of guarantee agreement or with ORCF’s Risk Mitigation Branch. If either circumstance is present, HUD approval is required. The LeadingAge NY COVID-19 Financial Assistance Opportunities for Not-for-Profit Providers guide provides the most updated information on this program and other financial assistance for members.

CMS Issues New Guidance on Survey Prioritization

On Aug. 17^th, CMS issued memorandum QSO-20-35-ALL revising previously issued guidelines allowing for the expansion of survey activities, clarifying the process of prior enforcement actions, and granting states the authority, in some circumstances, to determine compliance by desk review as opposed to an onsite revisit. Click here for more information.

COVID-19 Prevention Training for Nursing Home Management

The live CMS/CDC webinar training series on COVID-19 prevention in nursing homes will transition to a pre-recorded, self-paced format beginning on Aug. 20^th. The new CMS-CDC Fundamentals of COVID-19 Prevention for Nursing Home Management training series will include 13 topics and will be housed on QIOProgram.org for 24/7 access. Live trainings began in June and are archived for viewing here. New, pre-recorded trainings will be released every Thursday at 4 p.m. through September 2020. CMS and the CDC will have subject matter experts available on biweekly Question and Answer (Q&A) sessions through early January 2021 to answer questions about the trainings. More information, along with registration links for both training sessions and biweekly Q&A sessions, can be found here.

Communal Dining in Nursing Homes

The question of whether nursing home residents are allowed to eat in the dining room, as opposed to being required to eat in their rooms, has been raised on several of LeadingAge NY’s Monday update webinars with members. We had previously shared this CMS guidance but are providing it again, as the issue of communal dining is an important one for residents. The document contains a number of clarifications of previously issued CMS policy and guidance. With respect to communal dining (question #14), the guidance states the following:

Q: Communal Dining: Are all residents forced to eat in their room?

A: Residents are not forced to eat in their rooms. Residents may still eat in dining rooms, however, nursing homes should adhere to social distancing, such as being seated at separate tables at least six feet apart. We note that social distancing should be practiced at all times (not just while dining). We further note that eating in dining areas with appropriate social distancing only applies to residents without signs or symptoms of a respiratory infection, and without a confirmed diagnosis of COVID-19. Facilities should refer to CDC guidelines for managing residents with signs or symptoms of a respiratory illness.

Nursing Home Administrator Continuing Education Credits

The National Association of Long Term Care Administrator Boards (NAB) has noted that due to the COVID-19 pandemic, some states have notified NAB of changes in licensure requirements. While New York State has not modified licensure requirements at this time, the Board of Examiners of Nursing Home Administrators (BENHA) has confirmed that all continuing education credits may be obtained online.

Home and Community-Based Services (HCBS) Updates

HHA/PCA Virtual Training and Other Opportunities

On July 28^th, LeadingAge NY, along with the Home Care Association of New York State (HCA) and the New York State Association of Health Care Providers (HCP), jointly presented DOH with recommendations to institute virtual training programs for home health aides (HHAs) and personal care aides (PCAs). The proposal allows for HHA and PCA initial training to be accomplished through a hybrid approach of virtual instruction supplemented with in-person instruction with appropriate verification and in-person evaluation of skills.

LeadingAge NY and association colleagues are urging the Department’s adoption of this proposal, both now during the COVID-19 pandemic and permanently once the pandemic resolves, to alleviate long-standing recruitment and retention challenges experienced by the industry and those that have more acutely manifested as a result of the pandemic. We will keep members abreast of DOH’s development of guidelines in this regard.

In the meantime, the State Education Department (SED) has approved an HHA virtual training program developed jointly by the City University of New York (CUNY), the New York City Department of Small Business Services (SBS), and PHI, Inc. This program has received a significant number of applicants. At this time, they are operating to capacity and seeking Metropolitan Area Regional Office (MARO) region home care agencies willing to train HHA candidates. Please reach out to Meg Everett at meverett@leadingageny.org if you are interested in offering in-person training to these individuals, and we will put you in touch with this program.