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May 19th COVID-19 Update

New guidance and requirements pertaining to the COVID-19 emergency continue to be promulgated regularly by both the state and federal government. 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 May 18th, 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.

In addition, LeadingAge NY continues to encourage members to review our questions and answers (Q&As) on operational and regulatory issues related to COVID-19. The Q&As contain 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 Updates

HEROES Act Passes House

The fate of the $3 trillion Health and Economic Recovery Omnibus Emergency Solutions Act (HEROES Act), which would provide relief to state and local governments and add another $100 billion to the Provider Relief Fund, is far from certain. It passed the House of Representatives on May 15th, largely on a party-line vote, and has been called a non-starter by some Senate leaders. We will provide additional detail as warranted.

PPP Loan Forgiveness Application

On May 15th, the Small Business Administration (SBA) posted the Paycheck Protection Program (PPP) Loan Forgiveness Application here. The form comes with some clarifications of definitions and calculations important to applicants and allows organizations to calculate the forgivable amount. Once completed, the form needs to be submitted to the lender who issued the PPP loan.

Nursing Home and ACF Updates

TOMORROW: DOH to Host 9 A.M. Webinar Regarding HERDS Survey Update

Tomorrow, May 20th, at 9 a.m., the Department of Health (DOH) will host a 30-minute webinar for nursing homes and ACFs regarding forthcoming updates to the Health Emergency Response Data System (HERDS) survey. Specific changes will include reporting on numbers of individuals who worked in the facility, numbers of individuals tested, and test results.

Members should be sure to check their email for the webinar access information from DOH and submit any questions to covidadultcareinfo@health.ny.gov or covidnursinghomeinfo@health.ny.gov.

Staff Testing Mandate Off to a Rocky Start

Click here for the latest developments surrounding the twice-per-week testing mandate for nursing home and ACF personnel.

Certification of Compliance with EO 202.30

DOH reminded nursing homes and ACFs in a May 18th letter that they were required to submit a certification form indicating compliance with the Governor’s Executive Order (EO) 202.30 and all other applicable EOs and directives of the Commissioner of Health. While it is unclear how many facilities submitted these forms by the May 18th deadline, LeadingAge NY is continuing its efforts to obtain DOH/Administration approval of more reasonable revised wording given the potential facility liability involved.

According to DOH’s May 18th letter, if your facility: (1) failed to submit any type of certification of compliance by May 15th; (2) failed to submit a signed certification from both the operator and the administrator by May 15th; or (3) submitted a certification that did not contain the specific certification language required under EO 202.30 and requested in ACF Dear Administrator Letter (DAL) #20-14, NH-20-07 or included additional language that altered the certification, the facility was in violation of EO 202.30. This letter required that both the administrator and the operator sign the DOH compliance certification without alteration by 7 p.m. on May 18th.

The certification requires the administrator and operator to certify, under threat of criminal prosecution, that the facility is in compliance with EO 202.30 (the “employee testing EO”), as well as all other applicable EOs and DOH directives, including, but not limited to: (1) EO 202.1, on visitation restrictions; (2) EO 202.18, as amended by EO 202.19, on family notification requirements; and (3) DOH’s May 11th directive, “Hospital Discharges and Admissions to Nursing Homes and Adult Care Facilities.”

DOH has stated in writing that it considers “compliance with the EO 202.30 testing requirement to include the submission of a plan for employee testing.” “The actual implementation of staff testing required by EO 202.30 does not have to occur by the Certification due date.” However, the certification is not limited to submission of a testing plan, adhering to visitation restrictions, making required family notifications, and complying with admission limitations. It incorporates all other EOs and DOH directives, including DOH directives such as the nursing home requirements on cohorting of residents, requiring the use of personal protective equipment (PPE) for staff at all nursing homes and ACFs, work exclusion requirements, and the regulations that were temporarily waived and reinstated by EO 202.28 effective May 8th.

LeadingAge NY strongly recommended that member facilities consult with their own legal counsel prior to submitting the requested certification. In a May 18th email, we provided members with the following draft language slightly modifying DOH’s certification language that was shared with the administration (edits are highlighted and bolded):

Administrator/Operator Certification of Compliance

I hereby certify, under penalty of law, including but not limited to Section 210.45 of the Penal Code, that I am the Operator or Administrator of the facility identified below, and that such facility is in compliance with Executive Order No. 202.30, requiring the submission of a COVID-19 testing plan of all facility personnel, including all employees, contract staff, medical staff, administrators and operators, pursuant to the plan filed with the Department of Health, as well as and has, as of the date of this certification, made best efforts to comply with all other applicable Executive Orders and directives of the Commissioner of Health applicable during the declared state of emergency relating to the COVID-19 pandemic. This includes, as applicable, and without limitation:

  • EO 202.1, directing nursing homes to follow any guidance issued by the Department of Health relating to visitation restrictions;
  • EO 202.18, as amended by EO 202.19, requiring notification to family members or next of kin within 24 hours of a resident testing positive or suffering a COVID-19 related death.
  • The Directive of the Commissioner of Health issued May 11, 2020, titled “Hospital Discharges and Admissions to Nursing Homes and Adult Care Facilities.”

By May 15, 2020, all ACF certifications must be emailed to covidadultcareinfo@health.ny.gov and all nursing home certifications must be emailed to covidnursinghomeinfo@health.ny.gov.

While we do not yet know whether DOH will accept this modification, we are advocating for them to do so.

DOH Issues FAQ on “Cohorting” of Residents

On May 13th, DOH issued guidance clarifying its requirements for nursing homes to separate residents into cohorts based on their COVID-19 status and staff those cohorts appropriately. This guidance followed up on the Department’s April 29th DAL, which reiterated a series of previously required safety measures to control the spread of COVID-19 and, for the first time, required:

“Having protocols to separate residents into cohorts of positive, negative, and unknown as well as separate staffing teams to deal with COVID-positive residents and nonpositive residents. In order to effectuate this policy, nursing home facilities should transfer residents within a facility, to another long-term care facility, or to another noncertified location if they are unable to successful separate out patients in individual facilities.”

LeadingAge NY and its members raised several questions on how this policy would be implemented. DOH’s May 13th Frequently Asked Questions (FAQ) on Nursing Home Cohorting document addresses situations involving small numbers of COVID-19-positive residents and small facilities with limited clinical staffing; defines the terms “positive,” “negative,” and “unknown” in relation to residents; and discusses protocols for COVID-19-negative roommates of residents who test positive for COVID-19. These clarifications are somewhat helpful and provide needed flexibility in certain situations. Nursing home members should review and operationalize this guidance.

DOH Hosts Webinar on COVID-19-Related Pediatric Multi-System Inflammatory Syndrome

On May 14th, DOH hosted a webinar regarding COVID-19-related Pediatric Multi-System Inflammatory Syndrome featuring several prominent pediatric physicians based in New York City hospitals. The webinar focused on clinical aspects of the syndrome. A recording can be accessed here.

Further Clarity on Residents’ Economic Stimulus Checks

As indicated in LeadingAge NY’s April 28th COVID-19 Update, the Internal Revenue Service (IRS) began distributing Economic Impact Payments (EIPs) authorized under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) on April 13th through direct deposit for those with bank account information on file. Questions remain on ownership of these funds and on what to do if EIPs are sent to deceased individuals.

On May 15th, the Federal Trade Commission (FTC) published a blog post warning nursing homes and ACFs that they cannot require residents on Medicaid to turn over their EIPs to the facility. This is consistent with our April 28th COVID-19 Update, which clarified that since these payments are considered advance tax refunds/credits, they do not count as income for purposes of government assistance programs including Medicaid, Supplemental Security Income (SSI), Department of Housing and Urban Development (HUD) rent subsidies, the Supplemental Nutrition Assistance Program (SNAP), and others.

Another issue that member facilities have raised is that deceased residents are receiving stimulus payments. The IRS recently clarified that a person who died before receipt of the payment is not entitled to it, and that the payment should be returned to the IRS using the instructions provided in the response to Question #41 of the IRS guidance. The entire payment should be returned unless it was made to joint filers and one spouse had not died before receipt of the payment, in which case only the portion of the payment made on account of the decedent needs to be returned.

Facilities that manage fund accounts for residents for whom these payments have been received may consider providing advice to residents/families on spending these funds but should not expressly require residents to use the EIP funds to satisfy unpaid bills. Residents have up to 12 months to spend these payments, at which point they are countable as assets for Medicaid and SSI eligibility purposes.

CMS Issues Nursing Home Reopening Recommendations

Click here for information on the Centers for Medicare and Medicaid Services’ (CMS) newly issued recommendations for the reopening of nursing homes.

CMS Updates Blanket Regulatory Waivers for Nursing Homes

On May 11th, CMS issued new and updated Section 1135 blanket waivers in relation to the COVID-19 emergency. These waivers cover a broad range of CMS-certified providers, including nursing homes, and are in effect retroactively to March 1, 2020 through the end of the emergency declaration. The CMS fact sheet on waivers has been updated and can be accessed here, and a CMS fact sheet specific to waivers for long term care facilities is also available.

Paid Feeding Assistant Training

CMS is modifying requirements at §483.60(h)(1)(i) and §483.160(a) on the minimum hours of training for paid feeding assistants. Minimum timeframes for state-approved training courses are reduced from eight hours to one hour. Training courses must still cover the topics outlined at 42 CFR §483.160(a), which include (1) feeding techniques; (2) assistance with feeding and hydration; (3) communication and interpersonal skills; (4) appropriate responses to resident behavior; (5) safety and emergency procedures, including the Heimlich maneuver; (6) infection control; (7) resident rights; and (8) recognizing changes in residents that are inconsistent with their normal behavior and the importance of reporting those changes to the supervisory nurse.

Paid feeding assistants must also continue to work under the supervision of a registered nurse (RN) or licensed practical nurse (LPN). While CMS has granted authorization for reduced training hours, a state may choose not to adopt this reduced timeframe for its training program. LeadingAge NY is seeking DOH agreement to conform its training requirements with the federal waiver.

Life Safety Code: Alcohol-Based Hand Rub Dispensers

CMS is waiving prescriptive requirements on where alcohol-based hand rub (ABHR) dispensers are placed in a facility. Requirements of the 2012 Life Safety Code (LSC), sections 18/, address the placement of ABHR dispensers, including spacing between dispensers, maximum dispenser capacity, and maximum aggregates of ABHR per single smoke compartment. CMS is relaxing some of these requirements due to the increased demand for ABHR during this pandemic. Nursing homes must continue measures to prevent accidental ingestion by residents and to store quantities of ABHR greater than five gallons in a protected hazardous materials area.

Life Safety Code: Fire Drills

CMS is waiving the requirement for a quarterly fire drill due to safety concerns around massing and movement of staff during these drills. In place of the quarterly fire drill, CMS will allow a documented orientation training program on the current fire plan. The current fire plan may have changed as the facility’s physical environment and operations were revised in response to COVID-19. Your facility’s fire plan and training should address these changes. Staff should be instructed on current duties, life safety procedures, and fire protection devices in their assigned area. Information on fire drill requirements can be found at 2012 LSC, sections 18/

Life Safety Code: Temporary Construction

CMS is waiving LSC requirements that would otherwise prohibit temporary walls and barriers between patients. The code section referenced by CMS, 2012 LSC, sections 18/, appears to relate to interior finish. Note that temporary barriers may be in use as engineering controls or physical environment modifications in response to COVID-19 and in accordance with Centers for Disease Control and Prevention (CDC) guidance and previous CMS waivers around physical environment. Any temporary construction must be safely maintained.

CDC Issues Guidance for Memory Care Units

Click here for information on the CDC’s newly issued guidance related to infection control in units where there are residents with cognitive impairments.

CMS Nursing Home Stakeholder Call Held May 13th

During a May 13th Nursing Home Stakeholder call, CMS staff shared findings and observations made during the Focused Infection Control Survey. This particular survey accounts for most surveillance activities at this time as Health Surveys, LSC Surveys, and survey revisits are on hold due to the COVID-19 pandemic. The call discussed compliance issues around hand hygiene, cohorting of residents, and the donning of PPE, which constituted the major findings during the infection control surveys. LeadingAge NY has strongly encouraged members to utilize the Focused Infection Control Survey Tool to minimize risk to residents and to ensure compliance with COVID-19-related requirements.

Nursing Home Stakeholder calls are held on Wednesdays from 4:30 to 5 p.m. To participate, dial 833-614-0820 and enter passcode 4879622, or register via the webcast link.

A preliminary transcript and recording of the May 13th call are available here and here.

CMS Issues Toolkit on State Actions to Mitigate COVID-19

CMS has developed a toolkit outlining state resources in 15 different pandemic-related dimensions. Included are such areas as testing, workforce and staffing, cohorting, and communications, with information from Quality Improvement Organizations (QIOs), CMS contractors, state governments, and state associations. Some of the information may no longer be current. Additionally, it does not include all the comprehensive approaches that may have been issued by various states, agencies, and organizations. The document is provided for information only and should not be considered guidance.

LeadingAge National Offers Nurse Aide Skill Competency Course

LeadingAge National has made available a free skill competency course to address staffing issues that some members may currently be experiencing.

In response to COVID-19, CMS issued blanket waivers expanding the Nursing Assistant four-month rule, and several states lifted training and competency requirements for staff in skilled nursing or similar settings. Expedited training is a critical tool to be able to take advantage of these waivers.

The resources provided can maximize the workforce and maintain quality standards. LeadingAge National’s new Basic Care Aide Skill Competency Training Tool is a free, nine-hour training course designed to help redeploy current staff and train displaced workers and others new to the field.

Developed by EduCare©, this new program is designed specifically for the Basic Care Aide role and provides a foundation of skills for a variety of settings. The curriculum provides information on how to perform tasks, with the goal of ensuring that staff are well prepared to deliver person-centered care.

The program features an online training curriculum, with an additional two hours competency-based testing in the following content areas:

  • Resident Rights, Abuse Prevention, and the Health Insurance Portability and Accountability Act (HIPAA)
  • Emergency Procedures/Site and Natural Hazards
  • Emergency Preparedness/Human Hazards
  • Infection Control Techniques
  • COVID-19
  • Personal Cares
  • Exercise and Ambulation
  • Lifting and Safe Transfers
  • Bedmaking and Positioning
  • Temperature and Treatment
  • Skin Care and Pressure Ulcer Prevention
  • Dining, Nutrition, and Food Safety
  • Dementia Management and Abuse Prevention
  • Behavioral Health

The training tool is free to members and is available now on the Learning Hub.

HCBS Updates

New FAQ Issued for Social Adult Day Care COVID-19 Guidance

On May 16th, DOH issued an FAQ document clarifying issues surrounding social adult day care (SADC) services provided during COVID-19 after closure of on-site SADC programs.

The FAQ confirms that Managed Long Term Care (MLTC) and Medicaid Advantage Plus (MAP) plans must cover telehealth/telephonic delivery of all benefits under MLTC that are appropriate for telehealth/telephonic delivery. It clarifies that it is up to the enrollee to elect or decline to receive SADC telehealth services. It also allows for SADC delivery of meals if an MLTC plan arranges and contracts for this service through the SADC. The FAQ requires SADC providers and MLTC plans to arrange for reimbursement per a negotiated rate. It also suggests use of the Medicaid telehealth guidance as a guide to billing and coding (though the guidance only pertains to fee-for-service (FFS) providers.)

HCBS-Related Executive Order Provisions Expired as of May 7th

EO 202.28, issued by Governor Cuomo on May 7th, allows several HCBS-related provisions to expire, including the following:

  • Recordkeeping and ImmunityEO 202.10, issued March 23rd, temporarily relieved health care providers of recordkeeping requirements to allow them to respond to the COVID-19 outbreak, including maintaining medical records accurately reflecting the evaluation and treatment of patients, or requirements to assign diagnostic codes or to create or maintain other records for billing purposes. Any person acting reasonably and in good faith is given absolute immunity from liability for any failure to comply with any recordkeeping requirement.
  • Immunity from Professional LiabilityEO 202.10, issued March 23rd, temporarily relieved all physicians, physician assistants, specialist assistants, nurse practitioners, RNs, and LPNs from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak, unless the injury or death was caused by the gross negligence of the medical professional.
  • Home Care Worker Registry Submissions: EO 202.5, issued March 18th, extended the time in which home care agencies must submit information to the Home Care Worker Registry.

CMS Issues More Home Health 1135 Waivers 

A full listing of 1135 waivers for home health can be found here, with the following waiver new as of May 15th:

**Allow Occupational Therapists (OTs), Physical Therapists (PTs), and Speech Language Pathologists (SLPs) to Perform Initial and Comprehensive Assessment for all Patients. CMS is waiving the requirements in 42 CFR § 484.55(a)(2) and § 484.55(b)(3) that rehabilitation skilled professionals may only perform the initial and comprehensive assessment when only therapy services are ordered. This temporary blanket modification allows any rehabilitation professional (OT, PT, or SLP) to perform the initial and comprehensive assessment for all patients receiving therapy services as part of the plan of care, to the extent permitted under state law, regardless of whether or not the service establishes eligibility for the patient to be receiving home care. The existing regulations at § 484.55(a) and (b)(2) would continue to apply; rehabilitation skilled professionals would not be permitted to perform assessments in nursing only cases. We would continue to expect HHAs to match the appropriate discipline that performs the assessment to the needs of the patient to the greatest extent possible. Therapists must act within their state scope of practice laws when performing initial and comprehensive assessments, and access a registered nurse or other professional to complete sections of the assessment that are beyond their scope of practice. Expanding the category of therapists who may perform initial and comprehensive assessments provides HHAs with additional flexibility that may decrease patient wait times for the initiation of home health services.

CHHA and Hospice Surveys Include New PPE Questions 

Beginning Sat., May 16th, certified home health agencies (CHHAs) and hospices should have noticed additional questions added to their daily HERDS surveys. These questions will enable the Department to make more precise assessments of PPE and address needs when supplies need to be sourced. The questions are modeled after the nursing home and ACF surveys. The survey also asks for the name of the individual responsible for the data and a contact person who can be reached after hours. DOH reminds providers to please update their 24/7 contacts in the Health Commerce System (HCS), if that has not yet been done.

Inquiries related to COVID-19 and the HERDS surveys may be submitted to hcstatrpts@health.ny.gov.