March 31st COVID-19 Update

Developments around the COVID-19 outbreak continue to rapidly evolve, with new guidance and requirements coming daily from both the state and federal government. The latest updates for providers of long-term/post-acute care (LTPAC) and senior services are delineated 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 March 30^th, can be accessed here. Please send any questions to Ami Schnauber, and check your email for the dial-in information, or contact Jeff Diamond. Additionally, LeadingAge NY is regularly updating its questions and answers (Q&As) for members 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.

Cross-Sector and Nursing Home Updates

CMS Approves Additional 1135 Waivers; Others Remain Under Review

On March 26^th, the Centers for Medicare and Medicaid Services (CMS) gave written approval to New York State on certain statutory and regulatory waivers that the Department of Health (DOH) had requested under Section 1135 of the Social Security Act in response to the COVID-19 pandemic. As of the writing of this article, 34 states, including New York, had received such approvals. Several LeadingAge NY waiver requests were reflected in New York’s request, and we are following up with DOH on additional Medicaid and Medicare 1135 flexibilities that could be helpful to our member facilities and programs, as well as questions and areas of potential concern with requested waivers.

CMS approved 1135 waivers in the following areas that New York had requested:

• Suspend Medicaid fee-for-service (FFS) prior authorization requirements;
• Extend pre-existing authorizations for which a beneficiary has previously received prior authorization through the end of the public health emergency;
• Suspend Pre-Admission Screening and Resident Review (PASRR) Level I and Level II Assessments for 30 days;
• Modify the federal timeframes associated with appeals and fair hearings through the end of the public health emergency;
• Temporarily enroll providers which may or may not already be enrolled in another state Medicaid program or Medicare; and
• Allow certain facilities, including nursing homes, to be reimbursed for services rendered to an unlicensed facility during an emergency evacuation or relocation where the placing facility continues to render services.

On March 30^th, CMS issued several national blanket waivers under its Section 1135 waiver authority. Some of these addressed additional waivers that New York had requested, as well as waivers that LeadingAge NY had been seeking. The most notable CMS blanket waivers including the following:

• Relieve nursing home timeframe requirements for Minimum Data Set (MDS) assessments and transmission. We are seeking greater clarity on this waiver;
• Suspend requirements on nursing homes for submitting staffing data through the Payroll-Based Journal (PBJ) system;
• Allow a non-skilled nursing facility (SNF) building to be temporarily certified and available for use by a SNF in the event there are needs for isolation processes for COVID-19 positive residents;
• Allow rooms in a nursing home not normally used as a resident’s room to be used to prevent the spread of COVID-19;
• Suspend certain requirements that a nursing home may not employ an individual for longer than four months as a certified nurse aide if they have not met the training and certification requirements. We are seeking greater clarity on this waiver;
• Suspend the requirement for physicians and non-physician practitioners to perform in-person visits for nursing home residents and allow visits to be conducted via telehealth;
• Waive resident roommate and grouping requirements to allow cohorting residents with respiratory illness symptoms and/or residents with a confirmed diagnosis of COVID-19, and separating them from residents who are asymptomatic or tested negative for COVID-19;
• Allow nursing homes to transfer or discharge residents to another nursing home for cohorting purposes;
• Allow Requests for Anticipated Payment (RAPs) for home health agencies (HHAs) to be extended past the auto-cancellation date during emergencies;
• Relax Outcome and Assessment Information Set (OASIS) requirements for HHAs by extending the five-day completion requirement for the comprehensive assessment to 30 days and waiving the 30-day OASIS submission requirement;
• Allow HHAs to perform Medicare-covered initial assessments and determine patients’ homebound status remotely or by record review;
• Suspend HHA aide supervision visits, which are required of nurses every two weeks in the patient’s home, although virtual supervision is encouraged;
• Suspend requirement for hospices to use volunteers for at least 5 percent of patient care hours;
• Require hospices to continue to complete required comprehensive assessments and updates, but extend the timeframes for updating the assessment from 15 to 21 days;
• Suspend requirement for hospices to provide certain non-core hospice services during the national emergency, including physical, occupational, and speech therapies; and
• Suspend hospice aide supervision visits, which are required of nurses every two weeks in the patient’s home.

CMS had previously issued blanket Medicare waivers for the 3-day prior hospital stay and benefit periods. We are providing further clarity on those provisions herein.

LeadingAge NY is carefully reviewing the blanket and New York-specific waivers and will be submitting recommendations to DOH for additional waiver requests to CMS, as well as waivers of state-only requirements. We are also preparing a comprehensive summary for members of all federal and state waivers granted, which will be updated as additional waivers are authorized.

Telehealth Resources During COVID-19

On March 31^st, DOH issued a Frequently Asked Questions (FAQ) document related to its recently issued Comprehensive Guidance Regarding Use of Telehealth including Telephonic Services During the COVID-19 State of Emergency. The Department plans to hold a webinar soon to review the new provisions. Additionally, CMS has made available a Long-Term Care Nursing Homes Telehealth and Telemedicine Tool Kit, available here.

LeadingAge NY will provide members with additional guidance as it is issued, especially as it relates to the several waiver provisions recently announced that provide flexibility for numerous providers by allowing telehealth/telephonic services in lieu of in-person visits.

CMS Provides Medicare Quality Reporting Relief

On March 22^nd, CMS announced that it will grant exceptions from reporting requirements and extensions for clinicians and providers participating in Medicare quality reporting programs with respect to upcoming measure reporting and data submission for those programs. Click here to view the announcement.

Federal Funding Availability and Non-Clinical Reporting Flexibility

Recent federal legislation has provided some additional or accelerated funding for COVID-19-related costs and relaxed some non-clinical reporting requirements. Some key information on these provisions is provided below. We urge members to review CMS fact sheets and LeadingAge summaries for complete and additional information as details of the proposals are finalized.

Medicare Advance Payment

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) has authorized CMS to provide accelerated or advance payments during the period of the public health emergency to a Medicare provider or supplier who submits a request to the appropriate Medicare Administrative Contractor (MAC) and meets the required qualifications. Please note that this is a cash flow relief provision only and must be paid back beginning 120 days after the advance payment is issued.

What: The opportunity allows Medicare providers to request up to three months of Medicare payment in advance based on their historic Medicare FFS claims. This advance payment does not impede providers from continuing to receive payment on submitted claims.

Who: The program targets Part A or Part B Medicare providers who meet the required qualifications of having billed Medicare in the last 180 days, not being in bankruptcy, not being under active medical review or program integrity investigation, and having no delinquent Medicare overpayments.

When: Providers may apply now using the application posted on the National Government Services (NGS) Medicare website. The MAC will work to issue payment within seven days of receiving the request. Most providers must begin repaying the advance 120 days from the date payment is issued (which will be an automatic process that will intercept Medicare payments).

Additional Information: The CMS announcement, available here, contains step-by-step instructions for completing and submitting the application. The simple application form requires only Name, Address, Provider Number, National Provider Identifier (NPI), contact information, the amount being requested, and an authorized signature. Submission emails are listed on the form.

Although the NGS advance request form suggests that “providers are required to also submit, on their organization’s letterhead, a detailed explanation of the system issue they are experiencing; specifically, whether the issue is CMS related or due to the provider’s internal systems issue,” MAC staff have clarified that a brief letter or email statement indicating that the request is related to the COVID-19 emergency is sufficient. Those taking advantage of the opportunity should be aware that their regular Medicare payments will be automatically intercepted to repay the advance 120 days after receipt of the advance payment. We and LeadingAge staff have communicated to CMS that this approach may not be as helpful as other approaches, such as estimated payments, if providers are required to repay the advance at a time of continuing financial challenges.

FEMA Public Assistance Program

The Department of Homeland Security and Emergency Services (DHSES) has been holding several virtual Applicant Briefings to discuss the federal funding from the Federal Emergency Management Agency (FEMA) that may be available under the COVID-19 major disaster declaration. These briefings continue through April 2^nd. The announcement, available here, lists the entities that are eligible to apply for this funding and provides a full schedule of the briefings.

What: The FEMA Public Assistance Program provides funding to eligible applicants for certain costs incurred for response and recovery activities as a result of the declared emergency.

Who: Along with local governments, eligible applicants include critical private non-profits (e.g., nursing homes, clinics) and essential non-critical private non-profits (e.g., community centers, senior citizen centers).

When: The emergency declaration date is March 20^th, with the incident period starting Jan. 20^th. There is currently no deadline for the application, but presenters recommended that eligible organizations apply quickly.

Additional Information: Presenters indicated that information on the program, along with the webinar, would be posted on the DHSES website. The first step is to create a FEMA Grants Portal Account linked from the same site. FEMA is making an application template available. There are strict guidelines governing the activities that may be eligible for funding, and providers should become familiar with those and seek assistance from DHSES in answering questions that they may have. Eligible costs must be directly related to new activities performed to protect public health and safety; increases in operating costs to perform the customary mission of the organization alone are not sufficient.

PBJ and Cost Report Flexibility

The waivers recently issued by CMS include an easing of the requirement for nursing homes to file PBJ staffing data. The next quarterly PBJ due date is May 15^th. It is not clear at this point how this waiver will impact updates to the 5-star staffing domain. In addition, CMS will delay Medicare cost report due dates. For organizations with fiscal years ending Oct. 31^st or Nov. 30, 2019, reports will now be due June 30, 2020. The deadline for filing the Medicare cost report for organizations with calendar year fiscal years will be delayed from May 31^st to July 31, 2020.

Mother Cabrini Health Foundation Pledges $50 Million to Support New York Communities Impacted by COVID-19

The Mother Cabrini Health Foundation, a private, non-profit organization that seeks to improve the health and well-being of vulnerable New Yorkers, bolster the health outcomes of targeted communities, eliminate barriers to care, and bridge gaps in health services, announced on March 31^st that it will dedicate $50 million to provide funding for non-profit organizations addressing the health needs of New Yorkers as a direct result of COVID-19.

Per the Foundation’s announcement, the $50 million will be distributed “across New York State via Coronavirus Emergency Support Grants to community-based emergency response funds, hospital systems, Catholic Charities affiliates serving all faiths, and other organizational efforts. Grants will address both the health and economic impact of those most affected by this pandemic, including elderly individuals and those with preexisting medical conditions.” At this time, the Foundation will distribute grants by invitation, in order to expedite the process.

HCBS Updates

Home Health and Hospice Daily Surveys

Certified home health agencies (CHHAs) and hospices are filling out daily Health Emergency Response Data System (HERDS) surveys regarding regular caseload, the number of COVID-19 cases per agency, and supply of PPE. DOH has asked that CHHAs report the PPE of their own agencies, as well as the needs of the licensed home care services agencies (LHCSAs) with which they contract. We know that this and recent amendments to the survey are cumbersome. Please let us know if you have concerns regarding the survey.

New Guidance

• Return to Work Guidance: This guidance, which includes home care providers, provides requirements for return to work of symptomatic and asymptomatic employees who have been exposed to COVID-19 and staff who have COVID-19 infection.
• Private Duty Nursing: This guidance, issued March 28^th, allows private duty nurses (PDNs) to work more than 16 hours with nursing notes to reflect the state of emergency. Regulation still prohibits 24-hour continued nursing.
• Durable Medical Equipment, Prosthetics, Orthotics, and Supplies Policy: This guidance, issued March 28^th, waives in-person signatures of members or caregivers for durable medical equipment (DME) and allows certain therapies to be ordered and monitored via telehealth.
• Health Homes Serving Children, C-YES, HCBS Providers, and MMCO/HIV SNP Surrounding the 1915(c) HCBS Children’s Waiver: This guidance, issued March 29^th, relates to the screening process of participants for face-to-face visits and telehealth flexibility for determining eligibility, plan of care, and delivery of services.

CARES ACT and Home Health and Hospice

The $2 trillion CARES Act was passed by Congress and signed into law by the President late last week. Among the bill’s highlights is the ability for nurse practitioners (NPs), physician assistants (PAs), and clinical nurse specialists (CNSs) to certify eligibility for home health. This is a major change to former requirements which only allowed physicians to certify home health eligibility for a patient. It is unclear when this change will occur; we will let you know the details ASAP.

Other CARES Act provisions include:

• Allowing for the Use of Telehealth During the Hospice Care Recertification Process in Medicare: Under previous law, hospice physicians and NPs could not conduct recertification encounters using telehealth. This section allows, during the COVID-19 emergency period, qualified providers to use telehealth technologies in order to fulfill the hospice face-to-face recertification requirement.
• Encouraging the Use of Telecommunications Systems for Home Health Services in Medicare: This section requires the Department of Health and Human Services (HHS) to issue clarifying guidance encouraging the use of telecommunications systems, including remote patient monitoring, to furnish home health services consistent with the beneficiary care plan during the COVID-19 emergency period. Many of the HIPAA rules regarding telehealth implementation have been relaxed during the emergency. Please refer to this guidance from HHS.
• Nutrition Services: This section waives nutrition requirements for Older Americans Act (OAA) meal programs during the COVID-19 emergency to ensure that seniors can get meals in case certain food options are not available.

Deadline Extended for Medicare Home Health Cost Report Submission

CMS recently announced that the deadline to submit the Medicare Home Health Cost Report has been extended due to the COVID-19 emergency. For HHAs with fiscal years ending Oct. 31^st or Nov. 30, 2019, the deadline is now June 30, 2020. For those with fiscal years ending Dec. 31, 2019, the deadline is now July 31, 2020.

Housing Updates

What’s in the CARES Act for Affordable Senior Housing Providers, and What Comes Next?

The CARES Act is the third bill to address the COVID-19 pandemic. It unanimously passed the U.S. Senate on March 26^th and the House on March 27^th and was immediately signed into law. For Housing and Urban Development (HUD) affordable senior housing providers, the bill provides both regulatory and monetary relief. Notably, it includes a 120-day moratorium on all evictions from federally assisted housing, including in all HUD, U.S. Department of Agriculture (USDA) Rural Housing, and Low-Income Housing Tax Credit programs, and further stipulates that no late fees, charges, or penalties can be imposed on residents for nonpayment of rent or other fees.

The CARES Act also contains funding allocations for many housing programs, including the Section 202 Housing for the Elderly program, Project-Based Rental Assistance, Housing Choice Vouchers, and the Section 811 Housing for Persons with Disabilities program. For the Section 202 program, the bill provides $50 million that is meant to make up for any reductions of resident rent payments that occur as a result of COVID-19, maintain housing stability, and help communities pay for costs associated with COVID-19. The bill also allows up to $10 million of the $50 million allocated for Section 202 housing to be used for Service Coordinators. It is not yet clear how these funds will be distributed. Further information about the additional allocations and other provisions of the CARES Act may be found here.

To further supplement the CARES Act, LeadingAge continues to advocate for further relief and support for low-income seniors in federally assisted housing. A list of LeadingAge’s regulatory requests may be found here, and a list of the budgetary requests may be found here.