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May 5th 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 described in detail 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 4th, 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

Coronavirus Financial Assistance Guide Updated

LeadingAge NY has updated its guide, COVID-19 Grants, Loans & Advance Funding Opportunities, which provides members with consolidated summary information on various grants, loans, tax benefits, advance funding opportunities, and other financial assistance available to not-for-profit providers impacted by the pandemic. The guide has been updated to reflect further information on the Main Street Lending Program and various forms of financial relief being offered to Housing and Urban Development (HUD) multifamily housing borrowers. We will keep members posted on new funding opportunities and revisions to existing programs through updates to the financial assistance guide as needed.

LeadingAge NY Resource Provides Nursing Home-Specific and General COVID-19 Guidance by Subject Area

LeadingAge NY has developed a compendium of federal and state COVID-19 guidance specific to nursing homes or of a general nature, arrayed by topic in reverse chronological order. It encompasses guidance from the Centers for Disease Control and Prevention (CDC), the Centers for Medicare and Medicaid Services (CMS), New York State Executive Orders (EO), and the New York State Department of Health (DOH). This compendium will be updated as further guidance is made available by these agencies.

Governor Announces Plan for Re-opening New York

On April 28th, Governor Cuomo announced guidelines for a phased plan to re-open New York. The phased, regional plan, called New York Forward, is intended to inform decisions made as the state’s progress on the pandemic evolves. For this purpose, the state is divided into the following regions: Capital Region, Central New York, Finger Lakes, Mid-Hudson Valley, Mohawk Valley, New York City (NYC), North Country, Long Island, Southern Tier, and Western New York.

The guidelines for the plan are:

  1. Do No Harm. Continue controlling the rate of infection. This includes extending the New York Pause order until May 15th and implementing additional measures to reduce the rate of infection, including requiring masks in public when social distancing is not possible.
  2. Harden the Health Care System. Continue the surge and flex strategy to ensure that anyone who needs medical attention gets it, building out the strategic stockpile of personal protective equipment (PPE) and other medical equipment and sharing resources among states and localities.
  3. Develop Testing and Contact Tracing Protocol. The best data to inform decisions and calibrate the progress of any phased re-opening of the economy will come via diagnostic and antibody testing. The State is working with federal partners to rapidly scale up testing. A new state-of-the-art contact tracing program was launched by New York State in partnership with former NYC Mayor Mike Bloomberg, Bloomberg Philanthropies, and Johns Hopkins University.
  4. The ‘Un-Pause NY’ Approach is Designed to Open Businesses in Phases of Priority. Businesses that are considered “more essential” and have inherently low risk of infection in the workplace and to customers will be prioritized, followed by businesses that are considered “less essential” or that present a higher risk of infection spread. As the infection rate declines, the pace of re-opening businesses will be increased.

The Governor has also outlined 12 requirements that each region of the state will need to meet to “un-pause” and begin the re-opening process.

  1. CDC Guidelines: Based on CDC recommendations, once a region experiences a 14-day decline in the hospitalization rate, it may begin a phased re-opening.
  2. Priority Industries for Re-opening: Businesses in each region will re-open in phases. Phase one will include restarting construction, manufacturing, and select retail functions with low risk. Phase two will open professional services, finance and insurance, retail, administrative support, and real estate and rental leasing. Phase three includes restaurants and food service and hotels and accommodations, while phase four includes arts, entertainment and recreation, and education.
  3. Business Precautions: Each business and industry must have a plan to protect employees and consumers, make the physical workspace safer, and implement processes that lower the risk of infection in the business.
  4. Building Health Care Capacity: To maintain the phased re-opening plan, each region must have at least 30 percent of hospital beds and intensive care unit (ICU) beds available after elective surgeries resume. Hospitals must have at least 90 days of PPE stockpiled.
  5. Testing Regimen: Regions must implement a testing regimen that prioritizes symptomatic persons and individuals who came into contact with a symptomatic person and must conduct frequent tests of frontline and essential workers. Each region must have the capacity to conduct 30 diagnostic tests for every 1,000 residents per month and maintain an appropriate number of testing sites to accommodate its population and fully advertise where and how people can get tested. The region must also use the data collected to track and trace the spread of the virus.
  6. Tracing System: There must be at least 30 contact tracers for every 100,000 people. The region must also monitor the regional infection rate throughout the re-opening plan.
  7. Isolation Facilities: Regions must present plans to have rooms available for people who test positive for COVID-19 and who cannot self-isolate.
  8. Regional Coordination: Regions must coordinate the re-opening of schools, transportation systems, testing, and tracing with other surrounding regions.
  9. Re-imagining Telemedicine: No further details as of yet.
  10. Re-imagining Tele-education: No further details as of yet.
  11. Regional Control Rooms: Each region must monitor businesses and regional indicators during the phased re-opening, including hospital capacity, rate of infection, and PPE burn rate.
  12. Protect and Respect Essential Workers: Regions must continue to ensure that protections are in place for essential workers.

Each region of the state must follow these guidelines as part of the re-opening plan. A map of the 10 regions of the state and a list of counties within each region is available here. The Governor had previously announced the creation of the New York Forward Re-Opening Advisory Board to help guide the State's re-opening strategy. The Advisory Board is chaired by former Secretaries to the Governor Steve Cohen and Bill Mulrow and includes over 100 business, community, and civic leaders from industries across the state.

Nursing Home Updates

Nursing Homes Required to Report to CDC and Comply with Federal Family Notification Requirements Starting May 8th

In memorandum QSO-20-26, issued on April 19th, CMS previewed the requirements for nursing homes to report data related to COVID-19 to the National Healthcare Safety Network (NHSN) at the CDC and to inform residents and their representatives of COVID-19 cases among residents and staff. Currently, data on suspected or confirmed COVID-19 is reported to state or local health departments, but beginning May 8th, coinciding with the publication of the proposed rule, data will need to be reported to the CDC. According to CMS, the required collection of this information will be used to support surveillance of COVID-19 locally and nationally, monitor trends in infection rates, and inform public health policies and actions. This information may be retained and publicly reported in accordance with law.

The reporting to the CDC will be done through the COVID-19 Module on the NHSN. To be able to access the reporting module, providers first need to be enrolled in the NHSN. The CDC has developed and presented webinars both on enrollment into the NHSN and on the reporting process. While the complete webinars will be posted eventually, the presentation slides are available now: the first containing instructions on how to enroll into the network, the second providing an overview of the reporting module. Members who are not yet enrolled in the NHSN may want to do so quickly to ensure that they have the necessary access prior to the May 8th date when the reporting requirement becomes effective.

The federal family and resident notification requirements are similar, but not identical to State notification requirements. New York currently requires nursing homes (as well as ACFs) to notify families of all residents if any resident tests positive for COVID-19, or if any resident suffers a COVID-19-related death, within 24 hours of such positive test result or death. The federal rule goes further by requiring notification of residents and legal representatives, as well as family members. It also requires notification not only of confirmed COVID-19 cases among residents, but also of clusters of residents and/or staff with new-onset respiratory symptoms. The federal rule specifies that notification must be conducted by 5 p.m. the next calendar day following a single confirmed COVID-19 infection or respiratory symptom cluster and that facilities must provide weekly cumulative updates. The notification must include information on actions taken to prevent or reduce the risk of transmission and on alterations in normal operations of the facility. The preamble to the rule indicates that nursing homes may utilize a variety of communication methods to carry out these notifications, including paper notification, listservs, website postings, or recorded telephone messages.

The proposed rule contains the following provisions:

§ 483.80 Infection control.

*         *         *         *         *

(g) COVID-19 reporting. The facility must--

(1) Electronically report information about COVID-19 in a standardized format specified by the Secretary. This report must include but is not limited to—

(i) Suspected and confirmed COVID-19 infections among residents and staff, including residents previously treated for COVID-19;
(ii) Total deaths and COVID-19 deaths among residents and staff;
(iii) Personal protective equipment and hand hygiene supplies in the facility;
(iv) Ventilator capacity and supplies in the facility;
(v) Resident beds and census;
(vi) Access to COVID-19 testing while the resident is in the facility;
(vii) Staffing shortages; and
(viii) Other information specified by the Secretary. 

(2) Provide the information specified in paragraph (g)(1) of this section at a frequency specified by the Secretary, but no less than weekly to the Centers for Disease Control and Prevention’s National Healthcare Safety Network. This information will be posted publicly by CMS to support protecting the health and safety of residents, personnel, and the general public.

(3) Inform residents, their representatives, and families of those residing in facilities by 5 p.m. the next calendar day following the occurrence of either a single confirmed infection of COVID-19, or three or more residents or staff with new-onset of respiratory symptoms occurring within 72 hours of each other. This information must—

(i) Not include personally identifiable information;
(ii) Include information on mitigating actions implemented to prevent or reduce the risk
of transmission, including if normal operations of the facility will be altered; and
(iii) Include any cumulative updates for residents, their representatives, and families at
least weekly or by 5 p.m. the next calendar day following the subsequent occurrence of either:
each time a confirmed infection of COVID-19 is identified, or whenever three or more residents
or staff with new onset of respiratory symptoms occur within 72 hours of each other.

DOH Issues New Directives on COVID-19 Return to Work and Cohorting of Residents

On April 29th, DOH issued two letters to nursing home administrators extending the period of COVID-19-related exclusion from work for nursing home staff and requiring cohorting of residents with COVID-19. The work exclusion guidance requires nursing homes to exclude from work employees who test positive for COVID-19, but are asymptomatic, for 14 days from the "first positive test date." The guidance also requires exclusion from work of symptomatic employees until 14 days after symptom onset, provided that three days (72 hours) elapse since the resolution of fever without fever-reducing medications and respiratory symptoms are improving. The guidance acknowledges that these restrictions exceed the 10-day exclusion period set forth in the CDC’s symptom-based and time-based return to work strategies. The DOH guidance does not reference the CDC's test-based strategy for determining eligibility for returning to work. According to DOH staff, the State’s extended exclusion period applies only to nursing home staff and not other health care facility or home care agency staff.

The work exclusion letter further directs nursing homes to the State’s health care workforce recruitment portal at Covidstaffingportal@exec.ny.gov. Nursing homes that request assistance through this portal will receive login credentials to access the database of recruits, along with a user manual and video. Facilities will have to screen and interview candidates and negotiate a compensation arrangement. Other workforce resources for LeadingAge NY members are available here.

The second of the two DOH letters to nursing home administrators includes a series of reminders of existing infection control requirements and adds a requirement to cohort residents into COVID-19-positive, negative, and unknown groups, with dedicated staff for the positive and "non-positive" residents. The letter instructs nursing homes to transfer residents within a facility, to another facility, or to a non-certified location if they are unable to successfully “separate out residents.” Nursing homes that are unable to find a transfer destination for residents are directed to call 518-474-2020. The letter further notes that facilities that are unable to meet infection control standards must suspend admissions. According to the letter, a failure to adhere to these requirements will result in civil monetary penalties and/or a license revocation.

In a related call on April 30th, DOH staff noted that nursing homes should accept and retain only residents whom they are able to care for in accordance with regulations. DOH staff stated that facilities should ensure that they have adequate PPE. Although DOH staff noted that facilities should make the PPE "accessible in common areas," this is contrary to CDC guidance on PPE conservation which recommends that "[a]ll facemasks...be placed in a secure and monitored site." In addition, DOH staff reminded facilities that focused infection control surveys of nursing homes are ongoing. These surveys will be expanded to include ACFs. Facilities are reminded to refer to the CMS COVID-19 focused survey tool and DOH checklist to evaluate their infection control processes. More information on the focused surveys is available here.

LeadingAge NY Calls for Comprehensive and Collaborative Approach to Combating COVID-19 in Nursing Homes

Responding to the aforementioned letters from DOH to nursing homes, LeadingAge NY called on the Commissioner of Health to initiate a collaborative, multi-pronged effort to contain COVID-19 in nursing homes. That effort must include on-site testing and re-testing of all residents and staff, sufficient PPE consistent with sound infection control practices, and financial assistance and other supports to enable adequate staffing. In the absence of these critical resources, the association noted in a letter to the Commissioner, the directives are likely to have little effect on the spread of COVID-19 in nursing homes and may actually do more harm than good. "With the lives of vulnerable individuals at stake, health policy must be based on real world, practical conditions, formulated through collaboration not vilification, and implemented with appropriate planning and resources," the letter stated.

In its letter, LeadingAge NY pointed out that the DOH directives are likely to be infeasible and ineffective. COVID-19 testing is not readily available to nursing home residents or workers and certainly not on a regular basis. Absent a point prevalence survey of all residents and staff in a nursing home and regular re-testing, “unknown” asymptomatic residents and staff will continue to transmit the virus, and cohorting is likely to be ineffective. LeadingAge NY also noted that access to PPE remains inadequate and inconsistent, and that many facilities face staffing challenges that will interfere with assigning separate staff to COVID-19-positive residents. These challenges are only exacerbated by the extension of the work exclusion period. Furthermore, the requirement that nursing homes transfer residents, when the facilities are unable to cohort or assign separate staff, appears to apply regardless of the preferences of residents and does not offer any guidance regarding resident refusals.

LeadingAge NY will continue working with DOH to ensure that policies are informed by facts on the ground and supported by the necessary resources.

COVID-19 Infection Control Surveys

On March 23rd, CMS announced a new, targeted inspection plan designed to help keep nursing home residents safe in the face of the COVID-19 pandemic. The plan calls for focused inspections on urgent patient safety threats (called “immediate jeopardy”) and infection control. These targeted inspections allow CMS to focus inspections on the most urgent situations. During the pandemic, normal survey activities have been put on hold, including re-visit surveys.

LeadingAge NY had previously provided the Focused COVID-19 Survey Checklist but has heard from several members who had recently experienced this type of survey and thought it was important to re-emphasize the need to be familiar with the potential compliance elements in this area. Utilizing the checklist should help nursing homes to identify areas that need to be strengthened to reduce the risk of infection to residents and staff.

Nursing homes are different in terms of many factors, including staffing, resources, and configuration. Therefore, meeting infection control challenges may be unique for different facilities. Members having questions or seeking specific guidance in the development and implementation of infection control measures in their facility should reach out to Dawn Carter, ProCare Consultant, at dcarter@leadingageny.org. Dawn has guided LeadingAge NY members in infection control programs and has been a resource to members during the COVID-19 pandemic.

NYC OCME Memo on Decedents’ Remains

The NYC Office of Chief Medical Examiner (OCME) issued a memo regarding decedents’ remains on May 1st that should be used as guidance for all NYC nursing homes moving forward. Updated guidance with more detailed instructions will be distributed later this week.

HCBS Updates

DOH Webinar on Medicaid Telehealth Guidance

Last week, DOH issued updated guidance for Medicaid providers regarding the use of telehealth, including telephonic, services during the COVID-19 State of Emergency. The accompanying Frequently Asked Questions (FAQ) document has also been updated. The intent of this guidance is to provide broad expansion for the ability of all Medicaid providers in all situations to use a wide variety of communication methods to deliver services remotely during the COVID-19 State of Emergency, to the extent it is appropriate for the care of the member.

Updated changes to the policy include the following:

  • Clarification regarding payment parity for telehealth and telephonic services
  • Additional details regarding billing and coding instructions, including Place of Service (POS) codes and modifiers to use in each of the telephonic billing lanes
  • Clarification regarding definitions of telehealth, telemedicine, and telephonic services
  • Clarification regarding billing rules for Article 28 services with a Professional Component
  • Clarification of requirements for Medicaid Managed Care (MMC) plans
  • Additional links to other resources

On May 5th, DOH hosted a webinar to provide an overview of the newly updated guidance. DOH emphasized that the new COVID-19 telehealth flexibilities for providers include the ability to provide services via telephone, if telehealth or audiovisual technology are unavailable, as long as it is clinically appropriate for the member to be evaluated and managed by telephone.

DOH reviewed the Telephonic Reimbursement Overview chart at the beginning of the guidance which identifies six payment pathways utilizing the usual provider billing structure, which includes billing lanes, telephonic service, applicable providers, fee/rate, historical setting, rate code or procedure, POS code, modifier, and clarifying notes. The Department reviewed the lanes and several examples of services appropriate to the various billing lanes.

Lanes 5 and 6 will be the most commonly used by HCBS, home care, and day program providers. New POS codes are indicated, which should reflect the service location where the service historically would have been provided. Lane 5 encapsulates the bulk of HCBS services, including home care aide supervision and orientation, medication adherence, and patient check-ins. Lane 6 covers those not included in Lane 5 and includes licensed home care services agency (LHCSA) and certified home health agency (CHHA) assessments and evaluations and registered nurse (RN) visits. Specific providers must adhere to various minimum guidelines and standards to bill in Lane 6. DOH indicated that more guidance would be issued regarding this particular lane.

Telehealth services will be reimbursed at parity with existing off-site visit payments (clinics) or face-to-face visits (i.e., 100 percent of Medicaid payment rates). MMC plans are required to cover, at a minimum, services that are covered by Medicaid fee-for-service (FFS) and also included in the MMC benefit package, when determined medically necessary, and must provide telehealth coverage as described in this guidance. MMC plans may establish claiming requirements (e.g., specialized coding) that vary from FFS billing instructions in this guidance.

Absent existing State-mandated rates or negotiated rates for telehealth/telephonic services, MMC plans must reimburse network providers at the same rate that would be reimbursed for providing the same service via a face-to-face encounter. They may not limit member access to telehealth/telephonic services to solely the plan's telehealth vendors and must cover appropriate telehealth/telephonic services provided by other network providers. 

It is unclear what will happen with the new telehealth guidance flexibilities as COVID-19 social distancing restrictions are lifted. DOH indicated that they do not have an answer to this question at this time but will keep us informed. Attendees inquired about claims already submitted that do not reflect the updated billing and coding changes issued by DOH; the Department stated that changes do not need to be made to those claims.

The webinar was recorded and will be posted, and all questions, including those unanswered, will be added to the recently issued FAQs. DOH indicated that they may be providing specific webinars for certain provider groups. LeadingAge NY will keep members updated on additional guidance, FAQs, and webinars as they are issued.

Additional Home Health and Hospice 1135 Waivers

Last week, CMS issued additional 1135 blanket waivers providing regulatory relief for home health and hospice providers. Summaries from LeadingAge National are available here and here.

The waivers include flexibilities related to the following:

  • Home health and hospice aide in-service training requirements;
  • Information sharing at discharge planning;
  • Clinical record sharing;
  • Quality Assurance and Performance Improvement (QAPI);
  • Aide training and assessment; and
  • Expansion of the types of health care professionals that can furnish telehealth services to include all those who are eligible to bill Medicare for their professional services. Specifically, this allows physical therapists, occupational therapists, speech language pathologists, and others to receive payment for Medicare telehealth services.