Staff Testing Mandate Off to a Rocky Start
Mandated testing of nursing home and adult care facility (ACF) staff has been plagued by inadequate access to testing supplies and lab capacity, as well as confusion surrounding the Department of Health’s (DOH) distribution of test kits and assignment of labs. On May 11th, DOH issued a Dear Administrator Letter (DAL) to nursing homes and ACFs requiring them to conduct COVID-19 testing of all staff twice weekly and submit certifications of compliance to all DOH directives and Executive Orders (EOs), including the testing requirement. The DAL reflected the mandates set forth in EO 202.30 issued on May 10th. More information about the DAL is available here.
Subsequent to the issuance of the May 11th DAL, DOH issued two rounds of Frequently Asked Questions (FAQs) about the staff testing mandate. The first round is available here, and the second is available here. It is not clear whether the second round, entitled "FAQ Update," replaces the first round in its entirety or whether answers in the first round remain in effect to the extent they are not inconsistent with the second round.
The FAQ Update specifies that:
All employees, contract staff, per diem staff, medical staff, operators, administrators, and volunteers must be tested. Staff who are working from home, on leave, or otherwise not at the same site as residents, do not need to be tested so long as they remain offsite.
Staff who work at a facility for three days per week or less only need to be tested one time per week. The FAQs further specify that personnel who work at multiple facilities need to be tested only twice per week and that their test results may be used by any facility, as long as documentation of the test result is provided to each facility. Each facility must maintain documentation of the test results. The FAQ Update omits an exemption from testing for home care and hospice staff that had been included in the first round; it is unclear whether that exemption remains in effect.
The FAQs and prior EOs provide certain flexibility concerning the professionals who may order tests, how orders may be issued, and who may collect specimens. Of particular interest to nursing homes and ACFs are the following:
- Nurses employed by an ACF are permitted to collect swab specimens from ACF staff and residents. Additionally, other clinical staff who have received appropriate training regarding specimen collection may collect such specimens. (FAQs)
- Unlicensed individuals (including in a nursing home or ACF), upon completion of training deemed adequate by the Commissioner of Health, may collect throat or nasopharyngeal swab specimens from individuals suspected of being infected by COVID-19. (EO 202)
According to guidance issued by DOH, specimen collection by unlicensed individuals should occur only under the direction of a licensed health care professional who is authorized to order a COVID-19 test. These professionals include physicians, nurse practitioners, physician assistants, pharmacists, and nurses. The licensed health care professional is responsible for ensuring delivery of the DOH Training for Sample Collection Procedure for SARS-CoV-2 Testing and providing general supervision to the unlicensed individuals conducting specimen collection. DOH has issued a slide set for training unlicensed individuals in specimen collection, available here.
Prior EOs also offer flexibility in relation to the ordering of COVID-19 tests. Based on the second round of FAQs, it is not clear whether non-physician professionals are authorized to order non-patient-specific regimens or to order individual COVID-19 tests. The EOs in question are:
- Physicians and certified nurse practitioners may issue a non-patient-specific regimen to nurses or any other persons authorized to collect throat or nasopharyngeal swab specimens. (EO 202)
- Registered nurses (RNs) may order the collection of throat or nasopharyngeal swab specimens from individuals suspected of being infected by COVID-19, for purposes of testing. (EO 202.10)
- Licensed pharmacists may order COVID-19 tests, subject to completion of appropriate training developed by DOH. (EO 202.24)
LeadingAge NY is seeking clarification of the applicability of these EOs to nursing home and ACF staff testing and answers to many other questions concerning the FAQs and testing mandate.
In response to serious concerns raised by LeadingAge NY and others regarding the lack of laboratory capacity for the staff tests, the State has reserved capacity at several laboratories. The laboratories were selected only to facilitate access, and facilities are not required to use their assigned lab. DOH noted that it is the facility’s responsibility to connect with the laboratory to discuss its needs and make billing arrangements. In addition to reserving capacity at labs, the Department arranged for the delivery of test kits to nursing homes and ACFs. However, LeadingAge NY is aware that the test kits are arriving without instructions. We also understand that the test kits are not acceptable to the labs assigned to many of our members and that they were not provided in sufficient numbers to meet even one week’s needs.
Facilities that are collecting and shipping specimens should be careful to seal and package the specimens properly in accordance with the lab’s instructions. Prior to shipping specimens to a lab, facilities should establish an account with the lab, or the lab may not accept their specimens for processing. The following contact information was provided for the labs:
Boston Heart Diagnostics
Office: 800-229-5227 ext. 7427
Office: 718-232-1515 ext. 111
Alissa S. Farrier
LeadingAge NY has also pushed back against the State’s initial indication that nursing homes and ACFs would have to bear the cost of the staff testing mandate. We are urging the State to use federal funding for these costs. The FAQ Update provides that facilities may submit claims for insurance coverage per the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), but must pay if insurance denies coverage. DOH and the Department of Financial Services (DFS) just issued new directives supporting the medical necessity of twice-weekly testing, in order to discourage health plan coverage denials.
According to the May 11th DAL, the penalties for failing to comply with EOs or any of the DOH directives include suspension or revocation of the operating certificate of the facility and appointment of a receiver to continue the operations on 24 hours’ notice to the current operator. In addition, the Department may impose a fine of up to $2,000 per violation per day, as set forth in section 12 of the Public Health Law (PHL), and a fine of up to $10,000 for a willful violation of section 12-b of the PHL.
LeadingAge NY welcomes your questions and information concerning the challenges you are experiencing as you strive to implement the testing mandate. Your experiences inform our work and make us stronger advocates. Facilities with questions or concerns about testing may also contact DOH's nursing home and ACF testing group here or the Nursing Home Assistance and Coordination Center at 518-474-6512.
Contact: Karen Lipson, firstname.lastname@example.org, 518-867-8838