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Sept. 8th COVID-19 Update

New updates pertaining to the COVID-19 emergency continue to be announced by both the state and federal government on a regular basis. 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. Due to the holiday weekend, this week’s update will be held tomorrow, Wed., Sept. 9th. If you have any questions that you would like answered, please send them to Ami Schnauber, and be sure to check your email for the access information, or contact Jeff Diamond.

Cross-Sector Updates

Reminder to Apply for Provider Relief General Distributions

The deadline to apply for Provider Relief Phase 2 General Distribution funding (primarily aimed at Medicaid, Children’s Health Insurance Program (CHIP), and dental providers) is Sept. 13th. The Department of Health and Human Services (HHS) is also accepting applications for this funding from Medicare-certified providers that may not have applied previously or were not fully funded and, as announced last week, “private pay” assisted living facilities. Click here for more information.

New York Updates Travel Advisory List

LeadingAge NY has been tracking the COVID-19 Travel Advisory requiring people to quarantine if traveling to New York from certain states, with certain conditional exceptions for essential workers. On Sept. 8th, the Governor announced that Delaware, Maryland, Ohio, and West Virginia have been added, while the territories of Puerto Rico and the U.S. Virgin Islands have been removed. Click here for more information and an archived list of states as they have been added or removed.

EO Extension

On Sept. 4th, the Governor issued Executive Order (EO) 202.60 extending provisions under prior EO 202.55. The extension includes all COVID-19-related requirements for nursing homes and adult care facilities (ACFs), including the following: compliance with rules and regulations; penalties for non-compliance; suspension, revocation, and appointment of receiver for non-compliance; Health Emergency Response Data System (HERDS) reporting requirements; family notification; prohibition of the use of personnel refusing to test; and acceptance of hospital discharges to nursing homes only upon negative COVID-19 test and ability to provide proper care.

The EO also carries forth all other provider flexibilities, including home health care supervision as soon as practicable or via telehealth, Expanded In-home Services for the Elderly Program (EISEP) eligibility criteria and assessments, utilization of licensed health care providers from out of state or Canada, general telehealth flexibilities, ability of non-nursing staff to perform tasks under the supervision of a nurse, and professional licensing flexibilities for nurses.

The expiration date for EO 202.60 is Oct. 4th.

Among other provisions, EO 202.60 also provides for the following:

  • An employee who travels to a state on the travel advisory list is not eligible for paid sick leave benefits or any other paid benefits if the employee voluntarily traveled, and the employee did not begin travel to such state before the Department of Health (DOH) designated such state, and the travel was not taken as part of the employee’s employment or at the direction of the employee’s employer. Thus, it appears that employees who travel to a state before it appears on the travel advisory list are eligible for paid sick leave benefits if the state is subsequently added to the list on or before the date of the employee’s return to New York.
  • School districts must continue plans to ensure the availability of meals, and the availability of child care for health care and emergency response workers, for any school district that is conducting its operations remotely, and for any district which closes to in-person instruction, a contingency plan to immediately provide such services must be maintained. 
  • Whenever a coroner or medical examiner has a reasonable suspicion that COVID-19 or influenza was a cause of death, but no such tests were performed within 14 days prior to death in a nursing home or hospital, or by the hospice agency, the coroner or medical examiner shall administer both a COVID-19 and influenza test within 48 hours after death, whenever the body is received within 48 hours after death, in accordance with regulations promulgated by DOH. The coroner or medical examiner shall report the death to DOH immediately after and only upon receipt of both such test results through a means determined by DOH. DOH shall provide assistance for any requesting coroner or medical examiner.

ACF/Assisted Living Updates

Federal Funding Now Available to ACFs and Assisted Living Providers

LeadingAge NY is pleased to report that federal funding is now available to ACFs and assisted living providers. HHS has announced that “private pay” assisted living facilities have been added as eligible applicants for federal funding under the Provider Relief Fund Phase 2 General Distribution. Like other providers applying for Phase 2 funding, eligible assisted living providers will receive 2 percent of their annual revenue from patient/resident care. The deadline to apply for these funds is Sept. 13th. Click here for more information.

Nursing Home Updates

DOH Directs Confirmatory COVID-19, Flu Testing

On Aug. 31st, DOH issued a press release announcing new requirements for nursing homes, hospitals, funeral directors, and medical examiners to conduct confirmatory tests of patients/residents and decedents for COVID-19 and influenza. The emergency regulations became effective Sept. 1st, although DOH has yet to issue guidance on their implementation. However, a memorandum from LeadingAge NY general counsel Hinman Straub provides further details.

The DOH emergency regulations (specifically 10 NYCRR Section 415.33) require that:

  • Any nursing home patient/resident be tested for both COVID-19 and influenza whenever he/she is known to have been exposed to COVID-19 or influenza or has symptoms consistent with COVID-19 or influenza.
  • Any patient/resident who dies in the nursing home be tested for both COVID-19 and influenza within 48 hours after death if he/she is suspected of having died of either disease and had not been tested for COVID-19 and influenza in the 14 days prior to death. Deaths must be reported, immediately after receiving both test results, to DOH through the HERDS. However, these post-mortem tests are not required if the individual’s next of kin objects to the testing. Any facility that lacks the ability to perform rapid testing for COVID-19 or influenza can request that DOH perform these tests.

Very similar regulatory requirements apply to hospitals. Funeral directors, coroners, and medical examiners are also required to administer both COVID-19 and influenza tests to individuals within 48 hours of their death in other settings (e.g., in a hospice, ACF, or any another setting where a positive diagnosis was not made) if there is a clinical suspicion that COVID-19 or influenza was a cause of death. This requirement applies if these tests have not already been performed within 14 days prior to death in a nursing home or hospital or by a hospice agency, coroner, or medical examiner. Next of kin have a right to refuse the administration of confirmatory tests in these instances as well.

DOH notes in the emergency regulation publication that EO 202.59 directed the Commissioner of Health “…to develop, by emergency regulations, comprehensive statewide protocols for the timely testing and reporting of all COVID-19 and Influenza cases to continue to ensure, as flu season approaches, that the State has the most accurate data to evaluate the number of positive cases and to best ensure timely contact tracing efforts are implemented in all regions.”

The emergency regulation publication indicates that DOH will issue guidance documents to covered parties to clarify these testing requirements. In the meantime, LeadingAge NY has advanced several questions and concerns to the State on how these regulations are to be operationalized and their impact on providers. We will keep members posted as we learn more.

CMS Issues New Testing Regulations and Guidance

The Centers for Medicare and Medicaid Services (CMS) has published new COVID-19 testing regulations and guidance memos, QSO-20-38-NH and QSO-20-37-CLIA,NH, for nursing homes that took effect on Sept. 2nd. Members are advised that to the extent New York State testing requirements are more stringent, the State requirements continue to apply. Members should take note of federal testing requirements applicable to an "outbreak," defined as a single confirmed case among staff or a single nursing home-onset confirmed case among residents. Click here for more information.

Nursing Home Performance-Based Provider Relief

HHS has provided some additional detail on how $2 billion in Coronavirus Aid, Relief, and Economic Security Act (CARES Act) Provider Relief Funding targeted at nursing homes will be distributed. In addition to the August distribution of $2.5 billion for infection control activities to all nursing homes based on their number of certified beds, HHS will be distributing $2 billion through an incentive payment program that will be divided into four month-long performance periods (September, October, November, December), with $500 million available to nursing homes for each period. In order to qualify for payments under the incentive program, a facility must have an active state certification; must receive Medicare and/or Medicaid reimbursement; and must report to at least one of the following data sources: Certification and Survey Provider Enhanced Reports (CASPER), Nursing Home Compare (NHC), and Provider of Services (POS).

Funding will reward homes that have low COVID-19 infection and mortality rates measured against a baseline level of infection rates in the community in which the nursing home is located. The data source of the community infection rates will be Centers for Disease Control and Prevention (CDC) Community Profile Reports that contain county-level information on total confirmed and/or suspected COVID-19 infections per capita, as well as information on COVID-19 test positivity. Nursing home infection and mortality rates will be calculated using a month’s worth of data submitted through the COVID-19 Module to the National Healthcare Safety Network (NHSN). At this time, HHS has not defined what constitutes “low rates” or clarified whether or what type of risk adjustment may be included in the calculations. No application is required; HHS will automatically evaluate each home for eligibility. The HHS announcement, which also indicates that NHSN data will be subject to scrutiny and audit prior to payments, is here.

Please note that the Terms and Conditions associated with both the $2.5 billion distribution and the forthcoming performance-based distributions restrict the use of these funds to infection control activities. These include costs associated with administering COVID-19 testing for both staff and residents; reporting COVID-19 test results to local, state, or federal governments; hiring staff to provide patient care or administrative support; incurring expenses to improve infection control, including activities such as implementing infection control “mentorship” programs with subject matter experts, or changes made to physical facilities; and providing additional services to residents, such as technology that permits residents to connect with their families if the families are not able to visit in person.

NHSN Reporting

Accurate and timely nursing home COVID-19 Module reporting through the NHSN remains critical for nursing homes. Not only does this reporting provide a standardized, national data set that can help track and combat the pandemic, but failure to report can lead to fines and loss of additional Provider Relief Funding (see above). Members can find detailed instructions for reporting in each of the four pathways here. Note that the instructions document for the “Resident Impact and Facility Capacity” pathway was updated in late August to reflect new testing questions added to the required reporting. Providers may correct their data in the NHSN COVID-19 Module at any time by accessing the applicable calendar day and then replacing the incorrect data with correct data. You must then choose Save before exiting the screen to retain your changes. The document with these instructions, as well as suggestions for verifying reported data, is available here. A longer set of Frequently Asked Questions (FAQs) on COVID-19 Module reporting is here.

Affordable Housing Updates

HUD Announces CARES Act Funding for Grant-Funded Service Coordinators

The Department of Housing and Urban Development (HUD) has announced the availability of CARES Act awards for grant-funded Service Coordinators. Funds will be provided to Service Coordinators in Multifamily Housing (SCMF) and the Congregate Housing Services Program (CHSP) that experienced or expect to experience increased expenditures between March 27, 2020 and Dec. 31, 2020. Click here for more information.

CDC Issues Federal Eviction Moratorium Through End of Year

On Sept. 1st, the CDC announced a temporary eviction moratorium to prevent the further spread of COVID-19. Under the order, landlords and property owners are prohibited from evicting certain tenants impacted by COVID-19 at the risk of facing high monetary fines. Click here for more information from LeadingAge National.