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June 23rd 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 June 22nd, 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

NYC Halts PPE Distribution; Emergency Requests Will Be Filled

The New York City Department of Health and Mental Hygiene (NYC DOHMH) announced last week that its final distribution of personal protective equipment (PPE) to nursing homes and adult care facilities (ACFs) would take place the week of June 15th, and its final distribution to home care agencies would be carried out the week of June 22nd. Providers are urged to bolster their supplies through commercial vendors. Nursing homes and ACFs in NYC that have an emergency need for PPE may submit an emergency request form here. Home care agencies in NYC may submit an emergency request through their association. LeadingAge NY home care members may contact Meg Everett for assistance.

On June 10th, DOHMH hosted a webinar on PPE purchasing and capacity building to assist providers in accessing supplies through conventional channels. A recording is available here, and the slides are here. LeadingAge NY members in need of PPE should consider Value First, our group purchasing organization, and may contact Denis Miciletto for more information. In addition, DOHMH has issued a list of potential suppliers and a PPE Conservation Strategies Guide.

DOHMH notes that N95 masks are still in short supply and urges providers to use conservation strategies for all PPE, especially N95 masks.

PPP Deadline Approaching

The Paycheck Protection Program (PPP) is a forgivable loan program administered by the Small Business Administration (SBA) through local financial institutions. It incentivizes small businesses (generally 500 employees or less), including not-for-profits (NFPs), to keep their workers on the payroll. PPP applications can be filed until June 30, 2020.

There was an initial run on PPP funding, but Congress allocated an additional $310 billion to the program. Since that time, demand has slowed considerably, and there is over $128 billion in funding authority available as of this writing.

Under the PPP, the SBA allows qualifying small businesses to borrow up to 250 percent of their average monthly payroll costs, up to $10 million. NFPs with less than 500 total workers (including part-time and occasional employees), including any of their affiliated entities, are eligible to apply. Loans are unsecured, and payments are deferred for six months. Forgiveness is based on the employer maintaining or quickly rehiring employees and maintaining their salary levels. For loans issued before June 5, 2020, the unforgiven portion has a maturity of two years; for those issued after that date, the term is five years. All loans have a very competitive interest rate of 1 percent.

The SBA and the Treasury Department recently released a revised loan forgiveness application implementing an extended “covered period” and a reduction in the proportion of costs that must be payroll from 75 percent to 60 percent to be eligible for loan forgiveness. A new “EZ” version of the loan forgiveness application and accompanying instructions were posted last week, and many LeadingAge NY members should be able to use the new EZ application.

PPP applications can be filed until June 30, 2020. Health care and related services has been the single most active industry segment in loans to date.

For more information, consult with the SBA’s PPP webpage, the LeadingAge NY guide on coronavirus funding opportunities for NFP providers, and a presentation on the PPP from LeadingAge NY associate member The Bonadio Group given at our June 12th Chief Financial Officers Council meeting.

LeadingAge NY Updates Guide on COVID-19 Funding Opportunities

LeadingAge NY has updated its guide, COVID-19 Grants, Loans & Advance Funding Opportunities for Not-for-Profit Providers, as of June 23rd to provide important updates to the PPP and Main Street Lending Program.

The PPP section update reflects issuance of a new EZ application form and instructions for loan forgiveness. PPP loan applications are due by June 30, 2020. In addition, the Federal Reserve released two proposed new term sheets for NFPs under the Main Street Lending Program.

The LeadingAge NY guide provides consolidated information on various grants, loans, tax benefits, and advance funding opportunities for NFP providers impacted by the COVID-19 pandemic in a single document. Along with a brief description of each program, the document provides links to further information and will be updated as revisions are made and additional opportunities become available. The guide includes a separate section on opportunities for affordable housing providers.

We urge members to review the programs that may be helpful to them, to let us know if they have questions, and to share their experiences when accessing these programs. Please note that COVID-19 resources are available on the dedicated section of our website here.

Nursing Home and ACF Updates

TOMORROW at 10 A.M.: DOH to Host Webinar Regarding Weekly Nursing Home and ACF Staff Testing Survey

Tomorrow, June 24th, at 10 a.m., the Department of Health (DOH) will host a 45-minute webinar for nursing homes and ACFs regarding the weekly staff testing survey related to measures taken by facilities to meet the terms of Executive Order (EO) 202.40 and specifically staff testing. Members may register for the webinar here and submit their questions to covidadultcareinfo@health.ny.gov or covidnursinghomeinfo@health.ny.gov.

Nursing Home and ACF Visitation Update

The issue of resuming visitation in nursing homes and ACFs has been a topic of daily conversation with DOH and the Governor’s Office. The Governor permitted visitation to resume at Office for People With Developmental Disabilities (OPWDD)-certified group homes and residential facilities beginning June 19th. While this guidance does not directly relate to nursing home and ACF visitation, members may be interested in reviewing the approach that the State has taken to consider what visitation might look like in our settings. LeadingAge NY is pleased to report that many suggestions that we have been advocating for are evident in their approach. OPWDD is requiring that providers attest to meeting the standards outlined in the guidance in order to begin visitation.

Test Kit Delivery

On June 23rd, DOH sent a message to ACFs and nursing homes informing them that anyone who indicated a need for additional COVID-19 test kits for the purpose of testing staff at these facilities in last week's survey will receive a shipment on June 24th.

NYC Providers Transition to Once-a-Week Testing

DOH has confirmed that the NYC region begins Phase 2 of NY Forward starting Mon., June 22nd, thereby reducing the requirement to have staff tested for COVID-19 to once a week. The change occurs mid-cycle during the normal Wednesday-Tuesday staff testing and reporting timeline for facilities located in the region. DOH provided those facilities affected by this transition with the following guidance:

  1. For facilities located in NYC, entering Phase 2 of NY Forward on Mon., June 22ndFor the Week 6 staff testing reporting period (Wed., June 17th to Tues., June 23rd), facilities will only be required to test personnel once during the reporting period ending June 23rd. For facilities that had planned the second personnel test of the current reporting period for June 22nd or June 23rd, DOH encourages that such tests be conducted; however, they are not required.

Tests that take place either June 22nd or June 23rd are considered part of this week’s staff testing cycle and should not be counted for next week’s staff testing assessment cycle beginning on Wed., June 24th. Only personnel tests administered on or after June 24th will count for Week 7 nursing home/ACF weekly staff testing figures. All personnel should be tested at least once during the seven-day period beginning June 24th and each subsequent week thereafter. 

  1. For facilities previously in Phase 2 of NY Forward, outside of NYC: There is no change to testing and reporting. All personnel should be tested at least once during the seven-day period beginning Wed., June 24th and each subsequent week thereafter. 

Questions should be directed to DOH via the appropriate email: covidadultcareinfo@health.ny.gov or covidnursinghomeinfo@health.ny.gov.

Funding Advocacy for ACFs and Assisted Living Providers

LeadingAge NY has been advocating for funding to help address the increased costs of managing COVID-19 for all our members. We worked with our association colleagues on some targeted advocacy for ACFs and assisted living providers, given that the vast majority of those providers do not have access to funding that has been made available. Click here to view a letter sent to the Governor, Legislature, and other key staff advocating for financial assistance for ACFs and assisted living providers.

Nursing Home Liability Insurers Move to Exclude COVID-19 From Coverage

Member nursing homes are beginning to receive notifications from their General Liability/Professional Liability insurers indicating that their policies will be modified at the time of renewal to exclude liability related to COVID-19 and other communicable diseases. LeadingAge NY is asking the State Department of Financial Services (DFS) to intervene and disallow the use of these coverage exclusions in New York State, and we are working alongside other stakeholders, including LeadingAge National, on this issue.

This move is directly contrary to the State’s public policy of proactively protecting providers from liability that may arise in delivering health care services during the COVID-19 pandemic, and it could expose our member facilities to significant liability despite their good faith efforts to contain the spread of this deadly virus. These endorsements are very broad, and some could apply to any communicable disease, regardless of whether it is determined to be an epidemic or pandemic by any governmental body. This exclusion of coverage would apply even if the claims allege negligence or failures to conduct testing, contain spread, diagnose infection, and ensure availability of adequate PPE, among other grounds.

LeadingAge NY is also concerned that these exclusion endorsements could retroactively eliminate or limit COVID-19 liability coverage for nursing homes. While General Liability/Professional Liability insurers intend to incorporate these exclusions in their policies at renewal, the coverage exclusion could take effect retroactively for alleged injuries that took place during the height of the pandemic if the policy is written on a claims-made basis rather than on an occurrence basis. Cool Insuring, our endorsed member vendor, advises us that most nursing home liability policies have been written on a claims-made basis and that facility operators may discover months after an alleged injury that they have no coverage for legal defense costs or the underlying liability claims.

This is part of a larger battle that LeadingAge NY is waging on nursing home liability concerns. As members are aware, the Legislature is considering measures that could undo statutory protections from liability for providers and caregivers during the pandemic. Most notably, A.10427 (Kim, Rules)/S.8497 (Biaggi) would repeal the Emergency or Disaster Treatment Protection Act, which provides nursing homes and other health care providers and professionals with reasonable immunity from liability during the COVID-19 emergency. Please take action as requested in our June 12th Legislative Bulletin to urge your state lawmakers to oppose this legislation. LeadingAge NY is also carefully tracking and considering active involvement in a potentially precedent-setting court case involving Public Health Law § 2801-d, which provides a private statutory cause of action for nursing home residents injured as a result of any deprivation of certain resident’s rights.

John Snow, senior vice president at Cool Insuring, will be discussing the nursing home liability insurance exclusion issue during the next LeadingAge NY COVID-19 Weekly Update on June 29th at 11 a.m. Please contact us in the meantime if you have any questions.

Nursing Home Annual Pandemic Emergency Plan Bill Signed Into Law

On June 17th, Governor Cuomo signed a bill requiring nursing homes to submit an annual pandemic emergency plan to the Commissioner of Health. The legislation, A.10394-A (Lentol)/S.8289-B (Salazar), takes effect immediately and requires nursing homes to submit their emergency plan within 90 days of the bill’s effective date. The annual pandemic emergency plan must include a family communication plan regarding resident status, as well as a method to provide all residents with daily access to remote videoconferencing; plans to protect staff, residents, and families against infection; and plans to preserve a resident’s place at the facility if he or she is hospitalized. Importantly, the legislation also requires nursing homes to maintain or have access to at least a two-month supply of PPE.

Going forward, facility emergency plans will be submitted annually and displayed on the facility website. The Commissioner is required to review each facility for compliance with their plans and applicable regulations. Facilities are required to submit a plan of correction after receiving a notice of noncompliance within 30 days. If a facility fails to prepare its plan or comply with its plan, the facility will be subject to civil penalties.

Before its passage, LeadingAge NY advocated on this legislation and was successful in getting some amendments included, particularly around the new PPE requirement. Now that the bill has been signed by the Governor, we are awaiting guidance from DOH regarding the process for creating and submitting annual pandemic emergency plans. In the meantime, we recommend that members begin to formulate a plan that would meet these requirements, including setting up a plan for ensuring access to a two-month supply of PPE. LeadingAge NY will continue to keep members updated on this new requirement and forthcoming guidance.

Home and Community-Based Services (HCBS) Updates

Clarification on New HCBS Guidance from DOH

On June 18th, DOH issued new guidance for HCBS providers. The document states that it is an update to the Department’s March 16th Interim Guidance for Home Care Services and can be accessed here.

On Monday’s LeadingAge NY COVID-19 Weekly Update, we reviewed this guidance and assumed that it pertained to home care agencies. However, we received word later that day from DOH that the document only relates to HCBS providers, not Article 36 or 40 agencies. DOH communicated that it is intended for Expanded In-home Services for the Elderly (EISEP) and home visiting programs, including the Lead Education and Inspection program and any other “home visiting” like Family Nurse Partnership programs.

DOH directs home care agencies to consult its COVID-19-related guidance issued on March 14, 2020 and updated on March 22, 2020. With respect to return to work for the intended HCBS programs, the new guidance requires adherence to May 31st guidance regarding public and private employees (the link is in the guidance). All home care agencies and hospices should follow the March 31st return to work guidance.

In general, this new HCBS guidance does not pose any significant changes from ongoing practices except its reference to a different return to work policy. The more important guidance that we have been awaiting regarding home care and hospice testing has still not been issued. HCBS members should see other sections of the COVID-19 Update to learn more about nursing home/ACF (including visiting home care and hospice) testing requirements moving to once a week as all regions are in Phase 2 or greater.