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June 30th 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 described 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 29th, is available here. In addition to updates from LeadingAge NY staff, this week’s webinar includes a presentation on nursing home liability insurance COVID-19 exclusions from John Snow, senior vice president at Cool Insuring Agency. 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

State Expands COVID-19 Paid Leave Benefits for Health Care Employees with Repeat Quarantines

On June 25th, the Department of Health (DOH) and Department of Labor (DOL) issued guidance to expand the paid sick leave available to health care employees who complete a period of quarantine or isolation and continue to test positive for COVID-19. Under the new guidance, health care employers are required to provide paid leave for up to three quarantine or isolation periods. The new guidance supplements earlier guidance issued jointly by the agencies on COVID-19 leave for health care employees.

New York law provides employees who are subject to a mandatory or precautionary order of quarantine or isolation for COVID-19, or whose minor dependent child is under such an order, with job protection, paid and unpaid sick leave, and access to expanded paid family leave and temporary disability. The extent of paid sick leave depends on the size of the employer and its net annual income. Generally, employers with under 100 employees must provide at least five days of paid sick leave, and those with 100 or more employees and all public employers must provide at least 14 days of paid leave. Small businesses with 10 or fewer employees and a net annual income of less than $1 million last year must provide employees with job protection.

Under the new guidance, health care employers are required to provide employees who complete a period of mandatory quarantine or isolation and who continue to test positive for COVID-19 with paid sick leave, whether or not the health care employee already has received sick leave for the first period of quarantine or isolation. To qualify, the health care employee must submit documentation from a licensed medical provider or testing facility of a positive test result for COVID-19. The health care employee does not need to submit documentation of a positive result if the employee’s employer gave the employee the test for COVID-19 that showed the positive result. The employee is deemed to be subject to a mandatory order of isolation from DOH and must not report to work.

A “health care employee” is defined as a person employed by a health care provider, including, among others, a long term care facility, nursing home, end stage renal disease facility, assisted living residence, adult care facility (ACF), residence for people with developmental disabilities, or home health provider.

More information about New York’s COVID-19 sick leave requirements is available here.

Governor Announces Quarantine Requirements for People Entering New York State

On June 24th, Governor Cuomo issued Executive Order (EO) 205 requiring all individuals traveling from states with “significant community-wide spread” of COVID-19 to quarantine for a 14-day period from the time of last contact within the identified state. The quarantine requirement took effect June 25th. DOH has issued interim guidance, which appears to indicate that this requirement includes not only visitors, but also New York State residents returning from the affected states. There are exceptions for essential workers, which are described below. The guidance is not entirely clear, and the following is our understanding of the information available at this time. We will update members as more information becomes available.

Significant community-wide spread exists in states with a positive test rate higher than 10 per 100,000 residents, or higher than a 10 percent test positivity rate, over a seven-day rolling average. The impacted states are published on the DOH website. The quarantine restrictions currently apply to anyone traveling from Alabama, Arizona, Arkansas, California, Florida, Georgia, Idaho, Iowa, Louisiana, Mississippi, Nevada, North Carolina, South Carolina, Tennessee, Texas, and Utah. The quarantine requirements do not apply to any individual passing through designated states for a limited duration (i.e., less than 24 hours) through the course of travel (e.g., layovers, rest area stops, etc.). Any violation of a quarantine or isolation order may be subject to a civil penalty of up to $10,000.

Essential workers are exempt from travel-related quarantine but are subject to certain requirements. Essential workers appear to include nursing home, ACF, home care, hospice, and other health care and elder care workers, based on references in the travel guidance to prior guidance issued by Empire State Development and the COVID-19 testing protocol. The Empire State Development guidance includes among “essential health care operations” nursing homes, home care aides, and senior/elder care. Likewise, the protocol for COVID-19 testing includes individuals “employed as a health care worker, first responder, employee of a nursing home, long-term care facility, or other congregate care facility, or other essential employee who directly interacts with the public while working.”

For LeadingAge NY members with employees or contract staff returning from travel in high-spread states, the exemption from quarantine for “Long-Term” essential workers “fulfilling extended employment obligations” appears to apply, although the guidance mentions workers staying “several days.” The following provisions apply to essential workers anticipating Long-Term stays after travel to affected states:

  • Essential workers should seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours) to ensure that they are not positive.
  • Essential workers should monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distancing, and clean and disinfect workspaces for a minimum of 14 days.
  • Essential workers, to the extent possible, are required to avoid extended periods in public, contact with strangers, and large congregate settings for a period of, at least, seven days.

Notably, in referring to previously issued return-to-work guidance, the travel-related quarantine guidance provides, as an example, that “for a nursing home worker, a negative test PCR test will be required before return to work.” We have sought clarification from the Department regarding whether this is in fact required. Under the guidance, all essential workers and their employers are directed to comply with previously issued DOH guidance regarding return to work after a suspected or confirmed case of COVID-19 or after the employee had close or proximate contact with a person with COVID-19. LeadingAge NY members should follow the return-to-work guidance applicable to their licensure or industry sector.

HHS Clarifies CARES Act Medicaid Funding

As LeadingAge NY previously reported, the Department of Health and Human Services (HHS) will be distributing $15 billion of Provider Relief Funding under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to Medicaid and Children’s Health Insurance Program (CHIP) providers. Applications are due July 20th, and the HHS portal for applying is active. HHS has also updated its guidance on the program and is offering a webinar on July 8th.

This $15 billion installment of Provider Relief Funding is targeted at existing Medicaid/CHIP providers that did not receive Provider Relief Funding from the previous $50 billion General Distribution. HHS indicates that assisted living facilities, home and community-based services (HCBS) providers, nursing facilities, clinics, and hospices are eligible to apply if they meet certain requirements. Most notably, they cannot have received payment from the $50 billion Provider Relief General Distribution (determined based on the tax identification number (TIN) of the provider) and must have directly billed Medicaid (either through fee-for-service (FFS) or Medicaid managed care plans) for health care-related services between Jan. 1, 2018 and Dec. 31, 2019. Each qualifying provider that successfully applies will receive a grant of at least 2 percent of its reported gross revenue from patient care.

HHS updated its Provider Relief Fund Frequently Asked Questions (FAQ) document on June 26th to add several FAQs generally applicable to Provider Relief Funding, as well as specific to the Medicaid/CHIP Targeted Distribution. Key clarifications include the following:

  • If providers have leftover Provider Relief Fund money at the end of the pandemic that they cannot spend on allowable expenses or losses, they are expected to return the money to HHS (page 9).
  • Providers of self-directed HCBS are eligible to receive Medicaid/CHIP funding. If a fiscal intermediary is the filing TIN entity, it will need to apply on behalf of the self-directed providers and distribute the funds as appropriate to the providers (page 32).
  • If a provider applies and is not on the state’s curated list of Medicaid/CHIP providers, HHS will flag them but verify with the state within 15 business days whether the provider should be on the list (page 32).
  • Providers can receive Medicaid/CHIP Distribution funds even if they received funding through the Paycheck Protection Program (PPP) or from the Federal Emergency Management Agency (FEMA) (page 33).
  • A provider cannot edit or resubmit its Medicaid Distribution application once it has been submitted in the Enhanced Provider Relief Fund Payment Portal. Providers are urged to gather all needed information and documentation prior to submission (page 34).
  • Medicaid HCBS provider applicants should categorize personal care services in Field 5 of the application as “Other,” code OT (page 35).
  • All providers (not just facility-based providers) must submit full-time equivalent (FTE) information through the application but only for their employees (page 35).
  • If assisted living and memory care communities also offer independent living (IL) units in their communities, and the IL residents benefit from services offered by the community, the revenue from IL units can be reported as patient care revenue (page 36).

A webinar, “Getting started with the Provider Relief Fund for Medicaid and CHIP Distribution,” is being held on Wed., July 8th from 4 to 5 p.m. A one-hour introductory webinar on the Medicaid/CHIP Distribution recorded on June 25th is available on demand here; simply enter your name and email address to view it.

The deadline to apply for the Medicaid Targeted Distribution is Mon., July 20th. Since changes may not be made to applications once they are submitted, be sure to carefully review your organization’s data using the FAQs, application instructions, Excel workbook, and PDF application before submission. If you have questions, please review the FAQ document, call the CARES Act Fund Hotline at 866-569-3522 (for TTY, dial 711), or contact LeadingAge NY.

LeadingAge NY has updated its guide, COVID-19 Grants, Loans & Advance Funding Opportunities for Not-for-Profit Providers, to reflect this information and will do so for any further updates.

Providers Reminded to Submit Needed Information for Prior Provider Relief Funding Distributions

Providers that have already received funding from the Provider Relief Fund are reminded that they should agree to the specified terms and conditions through the CARES Act Provider Relief Fund Payment Attestation Portal within 90 days of receipt of the funding. For example, for providers that received the first tranche of General Relief funding on the earliest possible date of April 10th, the attestation deadline is July 9th.

In addition, providers that received General Relief funding prior to April 24th must also be sure that they have uploaded the requested tax and COVID-19 financial impact information through the General Distribution Portal. The submission of tax forms/financial statements to this portal will also serve as an application for additional funding. All providers submitting their financial information will be considered for additional funding from the General Distribution.

Revised FAQs for COVID-19 Medicare FFS Billing 

On June 19th, the Centers for Medicare and Medicaid Services (CMS) issued a revision to its COVID-19 FAQs on Medicare FFS Billing. The document can be accessed here.

COVID-19 Prevalence Among Medicare Beneficiaries

This week, CMS issued a Medicare COVID-19 Data Snapshot that provides insight on the pandemic from a Medicare claims perspective. The issuance is covered in today’s LeadingAge NY DataPoint, available here.

NYC Resources for Heat Events in COVID-19 Conditions

LeadingAge NY has been participating in conversations with New York City (NYC) regarding planning and resources for people during the summer months in the context of the COVID-19 pandemic. Click here for more information.

Nursing Home Updates

CMS Updates Guidance on Nursing Home Waiver Provisions

CMS has updated the Medicare Learning Network (MLN) Matters article on Medicare FFS billing to provide further clarification on the appropriate use of the skilled nursing facility (SNF) benefit period waiver flexibilities. The article reiterates that unlike the waiver of the 3-day inpatient qualifying hospital stay (QHS), which does not require separate determination that the individual’s circumstances are impacted by the COVID-19 Public Health Emergency (PHE) to be applicable, the benefit period flexibility is applied in a more restrictive way. To qualify for the benefit period waiver (which in certain cases allows an individual to qualify for skilled nursing even if they have not yet completed the customarily required break in service), it must be demonstrated that a beneficiary’s continued receipt of skilled care in the SNF is in some way related to the PHE. In making such determinations, a SNF resident’s ongoing skilled care is considered to be emergency-related unless it is altogether unaffected by the PHE itself (that is, the beneficiary is receiving the very same course of treatment as if the emergency had never occurred).

CMS urges providers to make sure that they use the criteria provided in the article in determining when to document on a Medicare claim that the patient meets the requirement for the waiver and asks providers to work with the Medicare Administrative Contractor (MAC) to provide any documentation needed to establish that the benefit waiver applies. The guidance appears on page 11 of the updated article, which was originally published in March and is available here.

Free Webinar on Resident and Family Notification

CMS and the Quality Improvement Organization (QIO) Program, a national network of Quality Innovation Network (QIN)-QIOs, will be offering a one-hour live webinar every Thursday through July 2020. The webinars will feature experts on different aspects of infection prevention in nursing home settings. The planned sessions are as follows:

  • Clinical Care: Managing COVID-Positive Residents – Thurs., June 18, 2020, 4 p.m. EDT (recording available)
  • PPE Strategies for COVID Care – Thurs., June 25, 2020, 4 p.m. EDT (recording available)
  • Transparency: Resident and Family Notification – Thurs., July 2, 2020, 4 p.m. EDT
  • Managing Staffing Challenges – Thurs., July 9, 2020, 4 p.m. EDT
  • Reopening Considerations – Thurs., July 16, 2020, 4 p.m. EDT

Register here for any of the sessions.

This week's webinar will review the latest federal guidance regarding the importance of transparency during the COVID-19 public health emergency, as well as best practices to implement a comprehensive communication plan and strategies to improve transparency and provide compassionate care during challenging times.

ACF Updates

Fire Drills in ACFs During COVID-19 Pandemic

Given the potential risks associated with conducting fire drills during the COVID-19 pandemic, DOH has elected to exercise enforcement discretion when surveilling ACFs’ compliance with the requirements set forth in 18 NYCRR §§487.12(f),(g) and 488.12(g). This enforcement discretion will be exercised for the duration of the COVID-19 public health emergency, as declared under EO 202. For the Department to exercise such discretion, however, certain safeguards and training must be in place and documented. Click here to learn more.

Program of All-Inclusive Care for the Elderly (PACE)/Managed Long Term Care (MLTC) Updates

Medicare Coverage for COVID-19 Testing in Nursing Homes

CMS has instructed MACs (see MLN Matters article SE20011, page 9) and notified Medicare Advantage plans that they are to cover COVID-19 laboratory tests for nursing home residents and patients.

This instruction follows the Centers for Disease Control and Prevention’s (CDC) recent update of COVID-19 testing guidelines for nursing homes that provides recommendations for testing of nursing home residents and patients with symptoms consistent with COVID-19, as well as for asymptomatic residents and patients who have been exposed to COVID-19, such as in an outbreak. Original Medicare and Medicare Advantage plans will cover COVID-19 lab tests consistent with CDC guidance.

Starting on July 6, 2020, and through the duration of the COVID-19 emergency, consistent with the aforementioned CDC guidelines, original Medicare and Medicare Advantage plans will cover diagnostic COVID-19 lab tests as follows:

  • Viral testing of residents for SARS-CoV-2;
  • Initial viral testing in response to an outbreak;
  • Recommended testing to determine resolution of infection with SARS-CoV-2; and
  • Public health surveillance for SARS-CoV-2.

Tests that are considered non-diagnostic are not covered.

Medicare Advantage plans must continue not to charge cost sharing (including deductibles, copayments, and coinsurance) or apply prior authorization or other utilization management requirements for COVID-19 tests and testing-related services.

More information about Medicare coverage of COVID-19 tests is available on the Medicare.gov website.

Affordable Housing Updates

HUD to Distribute CARES Act Funds to Housing Providers in July

This week, the Department of Housing and Urban Development (HUD) confirmed that it will be providing a supplement to Section 202 providers to cover COVID-19-related costs starting in July. According to LeadingAge National, HUD officials have described various issues that have slowed the release of the $50 million in CARES Act funding for the Section 202 program and have stated that the agency is readying to move these funds to providers. Click here for more information.