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Dec. 22nd COVID-19 Update

New updates pertaining to the COVID-19 emergency continue to be announced by both the state and federal government on a regular basis. The latest developments for providers of long-term/post-acute care (LTPAC) and senior services 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 Dec. 21st, is available here. If you have questions for next week’s update, please send them to Ami Schnauber, and be sure to check your email for the access information, or contact Jeff Diamond.

Cross-Sector Updates

Vaccine Updates: CDC Webinar, Clarification on Consent Process, New Guidance on Extra Pfizer Doses, and More

For information regarding a recent Centers for Disease Control and Prevention (CDC) webinar on the Pfizer and Moderna COVID-19 vaccines, clarification received by LeadingAge NY on the various options permitted for the consent process for the federal Pharmacy Partnership for Long Term Care, newly issued Department of Health (DOH) guidance on extra doses available in the Pfizer vaccine vials, and other vaccine-related items, click here.

Provider Relief Fund Phase 3 General Distribution

The Department of Health and Human Services (HHS) has begun distributing Coronavirus Aid, Relief, and Economic Security Act (CARES Act) Provider Relief Funds (PRF) to over 70,000 providers as part of Phase 3 of the PRF General Distribution. This distribution is aimed at ensuring that all providers receive at least 2 percent of their annual patient revenue in PRF funding and adds previously excluded recipients, such as behavioral health providers. The distribution also provides add-on payments to many applicants for COVID-19-related losses or expenses not yet otherwise reimbursed. HHS will distribute a total of $24.5 billion as part of this funding cycle. The first set of payments began on Dec. 16th, but the distribution is expected to take until the end of January to complete. Of the initial $10.9 billion issued, $892 million (8 percent) is going to 4,941 providers in New York State. The HHS press release is available here.

New EO Reinstates Recordkeeping Relief for Health Care Providers

Executive Order (EO) 202.83, issued on Dec. 18th, reinstates recordkeeping relief for health care providers permitted earlier in the COVID-19 emergency. It relieves providers of certain recordkeeping to focus on tasks related to responding to the pandemic and offers them immunity from liability for failure to comply with such requirements:

Notwithstanding any law or regulation to the contrary, health care providers are relieved of recordkeeping requirements to the extent necessary for health care providers to perform tasks as may be necessary to respond to the COVID-19 outbreak, including, but not limited to requirements to maintain medical records that accurately reflect the evaluation and treatment of patients, or requirement to assign diagnostic codes or to create or maintain other records for billing purposes. Any person acting reasonably and in good faith under this provision shall be afforded absolute immunity from liability for any failure to comply with any recordkeeping requirement. In order to protect from liability any person acting reasonably and in good faith under this provision, requirements to maintain medical records;

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

Local Positivity Rates

A file showing the most recent 14-day test positivity rates for each county in New York State based on both federal and state figures is available here. The rates based on federal figures exceed 10 percent in 11 counties for the 14-day period ending Dec. 16th.

Under the federal Centers for Medicare and Medicaid Services (CMS) nursing home testing guidance, when a county reaches a test positivity rate in excess of 10 percent and is designated a red zone by CMS, nursing homes must test staff twice weekly. However, CMS Frequently Asked Questions (FAQs) allow facilities to use state positivity data instead of the federal data to determine whether the twice-weekly testing requirement has been triggered, provided that the state data are available at the same frequency and use a similar methodology to the CDC. New York State uses a similar, but not identical, positivity rate calculation methodology to the CDC. It includes antigen test results in its data, so the denominator is greater and positivity rates are lower.

Providers who opt to use the New York State rates should document the source, date, and rate used to determine the frequency of staff testing based on CMS guidance. You should also continue to use the same source for determining testing (i.e., do not switch sources from week to week). LeadingAge NY posts a weekly file showing the CMS-calculated county positivity rates. Starting this week, we have added county positivity rates calculated using DOH data for the same time period as used in the CMS calculation. If the positivity rate in your county reaches a level in excess of 10 percent (based on the data source you selected), the twice-weekly CMS staff testing requirement is effective “as soon as the criteria for the higher activity are met.” It continues until the county positivity rate has remained at the lower activity level for at least two weeks.

Under the state micro-cluster guidance, you are also required to test twice weekly if your facility is in a red, orange, or yellow micro-cluster zone, even if the federal requirement is not triggered. Unlike the CMS zones, the micro-cluster zones are not countywide – they may be ZIP codes or census tracts. Notably, if you are not required by state micro-cluster guidance to test staff twice weekly (i.e., your facility is not in a micro-cluster zone), but you are in a federal red zone, you do not need to test staff who have previously tested positive in the last 90 days twice weekly. These recovered staff do not need to be tested under the federal guidance but must continue to be tested once weekly under the state guidance.

Current daily county-level data for New York State are here, and ZIP code-level data for New York City showing infection rates during the most recent four weeks are available here. Metrics related to the State’s micro-cluster initiative are available here, and links to cluster maps and the address look-up tool are here.

LeadingAge NY Advocates for More Reasonable Enforcement Approach

On Dec. 21st, LeadingAge NY sent New York State Health Commissioner Dr. Howard Zucker this letter outlining concerns about the citations members are receiving regarding late Health Emergency Response Data System (HERDS) survey submissions and nursing home personal protective equipment (PPE) stockpile requirements. The letter highlights how this approach is counterproductive and inconsistent with our mutual goal of promoting the highest quality resident care. Click here for more information.

Weekly Staff Testing Survey Due Dec. 23rd at 5 P.M. Due to Holiday

DOH reminds ACFs and nursing homes that the weekly staff testing survey will open today, Dec. 22nd, and close on Wed., Dec. 23rd at 5 p.m. This week's survey can be found here.

No extensions can be granted. Please note that if you submit your survey and do not receive a confirmation email, the system did not log your submission. Members are advised to print their submission for their records.

Affordable Housing/Independent Living Updates

Rental Assistance, Eviction Moratorium Extension, and Minimum 4 Percent Housing Credit Floor Included in New COVID-19 Relief Bill

The COVID-19 relief package passed by the House and Senate on Dec. 21st includes important housing-related provisions. The package includes $25 billion in Coronavirus Relief Fund Payments for Rental Assistance and extends the nationwide eviction moratorium for nonpayment of rent, set to expire on Dec. 31st, until Jan. 31, 2021. The bill also includes a minimum 4 percent Low-Income Housing Tax Credit (LIHTC) floor for buildings placed in service after Jan. 20, 2020. None of the bill’s housing-related COVID-19 relief is provided to Housing and Urban Development (HUD) or HUD programs. Click here for more information from LeadingAge National.