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Long-term care facility and nursing home guidance by CMS during the COVID-19 pandemic

Centers for Medicare & Medicaid Services (CMS) has taken recent action in response to the COVID-19 pandemic to address health and safety concerns for long-term care (LTC) facilities and nursing homes. As the CMS releases information, we will continue to update this article. If you have questions about the information, contact Baker Tilly’s senior living specialists.

Aug. 23, 2021: CMS and CDC to collaborate in developing an emergency regulation requiring nursing home staff to be vaccinated against COVID-19

The Centers for Medicare & Medicaid Services (CMS) in collaboration with the Centers for Disease Control and Prevention (CDC) is developing an emergency regulation that requires nursing home staff to receive COVID-19 vaccinations. The president announced this emergency regulation on Aug. 18, 2021, which will apply to the more than 15,000 nursing homes who participate in the Medicare and Medicaid reimbursement programs. The statement precluded what is expected to come in regulation format requiring that all staff working in the nations nursing homes are vaccinated against the COVID-19 virus or the nursing homes risks losing Medicare and Medicaid reimbursement funding. The announcement did not provide detail related to deadlines for the completion of the vaccinations for nursing home staff, whether the requirement was for the first dose or both doses, how the government would track the nursing home staff vaccination compliance and when the enforcement action would take place.

July 22, 2021: Public Health Emergency determination extended

On Monday, July 19, 2021, the Secretary of Health and Human Services (HHS), Xavier Becerra, renewed the Public Health Emergency (PHE) that had been previously and initially declared by former Secretary Alex Azar II. The Secretary believed it was necessary to renew the PHE based on the result of the continued consequences of the Coronavirus virus. The renewal of the PHE is effective on July 20, 2021 and is extended for another 90 days. This renewal of the PHE also includes renewal of all waivers that have been implemented during the time of the PHE. Providers must note that some waivers have been terminated prior to this renewal but all others are extended with this renewal.  

Jan. 11, 2021: HSS announces extension of COVID-19 PHE

On Friday, Jan. 8, 2021, the United States Department of Health and Human Services (HHS) announced the extension of the COVID-19 Public Health Emergency (PHE) until April 2021. The extension of the PHE also includes the extension of the waivers that were initiated related to the PHE. These include:

  • Section 1135 National, Blanket Waiver which includes the telehealth and staffing waivers remains in effect.  
  • Section 1812(f) Waiver which includes the waiver of the 3-Day Stay qualifying hospital stay requirement and the waiver for the 60 day Spell of Illness requirement also remains in effect.
  • The CARES Act has a statutory link to the PHE, the Medicaid increased FMAP continues until the end of the quarter in which the PHE ends. Therefore, the extension of the PHE provides for the increased FMAP to the states until June 2021.

Dec. 26, 2020: COVID -19 vaccine toolkits available from CMS

A set of resources were recently released by the Centers for Medicare and Medicaid Services (CMS) in the form of a toolkit to aid in preparing the health care system to swiftly administer the COVID-19 vaccine(s) as they become available. The toolkit contain resources for healthcare providers, states and insurers that are designed to do three things:

  1. Increase the number of providers that can administer the vaccine(s);
  2. Ensure reimbursement for administering the vaccine(s) to Medicare recipients; and
  3. Reiterate the responsibility for private insurers and Medicaid programs to cover the vaccine(s) at no cost to beneficiaries.

The CMS is also taking action to increase reimbursement for any new COVID treatments approved by the Food and Drug Administration (FDA). The health care community will play a vital role in the planning, distribution and administration of COVID-19 vaccines as and when they are approved for use, and CMS is committed to providing the necessary tools to respond to this public health emergency. CMS is committed to helping health care providers prepare to administer vaccines now and in the future.

The toolkit currently focuses primarily on coverage of vaccine administration as the initial supply of both likely COVID-19 vaccines will be federally purchased. Vaccine doses purchased with U.S. taxpayer dollars will be made available to the American people at no cost. Health insurance shall not be a barrier to any American wanting to receive the vaccine. Under this mandate, “Providers that participate in the CDC COVID-19 Vaccination Program contractually agree to administer a COVID-19 vaccine regardless of an individual’s ability to pay and regardless of their coverage status, and also may not seek any reimbursement, including through balance billing, from a vaccine recipient.”

Providers can seek reimbursement through the Provider Relief Fund when administering the vaccine(s) for people without insurance or whose insurance dos not provide coverage of the vaccine. Questions regarding billing or reimbursement of costs for vaccines administered to patients covered by private insurance or Medicaid should be directed to the relevant health plan or state Medicaid agency.

This toolkit includes information to describe:

  • How health care providers can enroll in Medicare to bill for administering COVID-19 vaccines when available
  • The COVID-19 Vaccine Medicare coding structure
  • The Medicare reimbursement strategy for COVID-19 vaccine administration
  • How health care providers can bill correctly for administering vaccines, including roster and centralized billing

CMS will update the toolkit as new information becomes available.

NEW UPDATE: Information about the monoclonal antibody infusion use for treating COVID-19 is now available. During the COVID-19 public health emergency (PHE), Medicare will cover and pay for monoclonal antibody infusions just as it does for COVID-19 vaccines (when furnished consisted with the EUA). Read the full announcement for additional information.

Oct. 2, 2020: Public Health Emergency status renewed

Effective Oct. 23, 2020, Alex M. Azar II, the Secretary of Health and Human Services, officially extended the Public Health Emergency (PHE) until Jan. 27, 2021. The PHE was implemented nationwide on Jan. 27, 2020 and was previously renewed on April 21, 2020 and July 25, 2020 as a result of the coronavirus pandemic and based on the continued consequences of the COVID-19 pandemic. All waivers that were implemented during the PHE declaration are also renewed and extended, including the elimination of the three-day qualifying stay requirement rule and telemedicine/telehealth for nursing home providers. Read the full announcement for additional information.

July 23, 2020: Public Health Emergency status renewed

Effective July 25, 2020, Alex M. Azar II, the Secretary of Health and Human Services, officially extended the Public Health Emergency (PHE). The PHE was implemented nationwide on Jan. 27, 2020 and was renewed on April 21, 2020, as a result of the coronavirus pandemic and based on the continued consequences of the COVID-19 pandemic. All waivers that were implemented during the PHE declaration are also renewed and extended. Read the full announcement for additional information.

June 25, 2020: April waiver adjusted to address reporting of staffing data and MDS assessments

The Centers for Medicare and Medicaid Services (CMS) issued memorandum QSO-20-34-NH, to adjust a waiver that addresses the reporting of staffing data to the Payroll Based Journal (PBJ) and quality measures.

In April, CMS issued guidance related to the Nursing Home Compare website and the Five Star Quality Rating Program to ensure fair information to consumers. Last week, CMS decided to end the previous waiver related to submission of staffing data to the PBJ, which affects the rating program and data reporting. Nursing homes will be required to submit data for Calendar Quarter 2 (April – June) by August 14, 2020. They are also being encouraged to submit staffing data for Calendar Quarter 1 by August 14, 2020. Staffing data in the Nursing Home Compare website has been stagnant because providers didn’t have to submit the data due to the passing of the waiver in April.

CMS previously provided waivers for the completion and submission of minimum data set (MDS) assessments, which provides data used to calculate quality measures on the Nursing Home Compare website. CMS believes that they can utilize the data from MDS assessments conducted and submitted prior to January 1, 2020 to calculate quality measures; however, beginning July 29, 2020 quality measures will be held constant if they appear to be impacted by the MDS assessments completed in the period after January 1, 2020.

May 28, 2020: Nursing home reopening recommendations issued by the CMS

The Centers for Medicare & Medicaid Services (CMS) issued Memo QSO-20-30-NH addressing nursing home reopening recommendations for state and local officials. Nursing homes should review specific items related to three phases of reopening:

  • Criteria for relaxing certain restrictions while mitigating the risk of resurgence
  • Visitation and service considerations
  • Restoration of survey activity

Nursing homes have experienced higher rates of infection with higher mortality rates based on the age classification and co-morbidities of the residents’ cohabitating in nursing homes, placing them in a more vulnerable position. Aggressive and coordinated efforts are pertinent to limit the spread of the coronavirus while reopening nursing homes and beginning to relax restrictions.

The recommendations will help to determine the level of mitigation needed to prevent the transmission of COVID-19 in nursing homes. State leaders are encouraged to collaborate with their state survey agencies and state and local health departments to decide how recommended criteria should be implemented. The CMS memo includes examples of how a state may determine to implement recommendations:

  • A state requiring all facilities to go through each phase at the same time (i.e., waiting until all facilities have met entrance criteria for a given phase)
  • A state allowing facilities in a certain region (e.g., counties) within a state to enter each phase at the same time
  • A state permitting individual nursing homes to move through the phases based on each nursing home’s status for meeting the criteria for entering a phase

Nursing homes should consider the following items when creating a reopening plan:

  • Case status in the community where the nursing home is located
  • Case status in the nursing home
  • Staffing levels
  • Access to adequate testing
  • Access to adequate PPE
  • Universal source control
  • Local hospital capacity

Refer to the CMS FAQ document for additional information on reopening nursing homes.

May 11, 2020: Additional 1135 blanket waivers added for nursing homes

The Centers for Medicare & Medicaid Services (CMS) added additional 1135 blanket waivers to the waivers that are currently effective for nursing homes during the Public Health Emergency Declaration. The new waivers were added to the original document and are called out in red text, with an effective date of April 30. Since they are federal waivers, they do not require additional approval or requests from individual states.

Included in the new 1135 waivers:

  • If hospitals meet certain requirements, they are able to use “swing beds” for patients who no longer require acute care, but do not meet the Skilled Nursing Facility (SNF) criteria. (page 7)
  • Certain eligibility requirements are waived for hospitals classified as Sole Community Hospitals and Medicare-Dependent, Small Rural Hospitals. (pages 10-11)
  • The time frame for required training for paid resident feeding assistants is now a minimum of one hour, decreased from the original eight-hour requirement. The same content is required in the training. (page 18)
  • Occupational therapists, physical therapists and speech language pathologists are now able to provide an initial and comprehensive assessment for all patients, not just when therapy services are ordered. (pages 19-20)
  • Dialysis is now allowed for patients residing in nursing homes, long-term care facilities, assisted living facilities and similar types of facilities, as licensed by the state.(pages 24-25)
  • Life Safety Code (relaxation of standard requirements) has been modified and put in place for hospitals, inpatient hospice and SNFs. (pages 26-27)
    -Include placement of alcohol-based hand sanitizer dispensers to ensure they are available in nursing homes when needed, and safe storage of large containers of alcohol-based hand sanitizers
    -Quarterly fire drills are no longer permitted to reduce congregation of residents and staff, and a documented orientation training program related to the current fire plan will suffice
    -Temporary walls and barriers between patients are now permissible.

The new waivers provide an opportunity for all applicable facilities to review the initial waivers and ensure that providers are using all applicable waivers.

*Note: For nursing homes with memory care units or residents with the diagnosis of dementia and Alzheimer’s disease, the CDC is providing guidance for assisting these residents throughout the restrictions of the Public Health Emergency Declaration.

May 8, 2020: Federal reporting and notification guidelines updated by CMS

CMS released detailed guidance regarding federal reporting of COVID-19 data to the CDC’s National Healthcare Safety Network (NHSN) system and updated survey tools reflecting the new guidance. The information in Memo QSO-20-20-NH was also posted in the interim final rule that is posted to the Federal Register with an effective date of May 8.  

The memo details a specific timeline and reporting requirements for long-term care (LTC) facilities to address suspected positive and confirmed positive COVID-19 cases. There are eight mandatory data points for entry into the NHSN system, including suspected and confirmed infections among residents and staff, total deaths, personal protective equipment and hygiene supplies available and staffing shortages. The information needs to be reported to the NHSN at a Secretary-specified frequency, but no less than weekly, and will be publicly posted by the CMS. Guidelines also state that LTC facilities need to notify residents, their families and representatives of either a single confirmed COVID-19 infection, or three or more residents or staff with new respiratory symptoms occurring within 72 hours of each other, by 5 p.m. the next calendar day.

The new federal reporting requirements are in addition to state and local health department requirements. The important difference between the reporting is that state and local departments are able to understand the local environment and intervene, whereas the federal requirements will streamline all data on a national level and provide it in one area.

The COVID-19 Focused Survey for Nursing Homes, Entrance Conference Worksheet, COVID-19 Focused Survey protocol and summary of the COVID-19 Focused Survey for Nursing homes have all been updated with an assessment to reflect the new reporting requirements. The forms are linked on page 4 of the memo and should be used immediately as a self-assessment tool. Surveyors will also begin using them immediately.

CMS provided beneficial resources in the memo for LTC facilities. The COVID-19 Focused Survey for Nursing Homes is on pages 8-14, and an updated reporting Q&A document begins on page 15.

May 1, 2020: Interim Guidance for CDC reporting and additional 1135 blanket waivers issued for LTC facilities

The Centers for Medicare & Medicaid Services (CMS) issued the interim final rule with comments on May 1, which included additional guidelines for provider reporting during the COVID-19 pandemic.

Long-term care (LTC) providers received interim guidance regarding expectations for reporting COVID-19 cases to the CDC through the National Healthcare Safety Network (NHSN) system. This reporting doesn’t replace the reporting that providers are required to complete to their states with coronavirus being considered a communicable infectious disease. If a provider doesn’t accept either Medicare or Medicaid reimbursement, then they are not required to report to the CDC, because assisted living, personal care and independent living providers aren’t governed by the federal guidance. The interim final rule also includes guidance for provider notifications to residents, staff, families and resident representatives.

CMS states that they will publicly report the provider data through the CDC’s NHSN system. The NHSN hosted webinar trainings for the LTC facilities for the new COVID-19 module overview and enrollment guidance on April 30 and May 1; however, some providers experienced issues entering the training. The CDC posted the trainings on their website for LTC providers.

Additional 1135 blanket waivers were issued on April 30, as well. The new waivers state that Quality and Assurance Improvement (QAPI) meetings should be continued with a focus on infection control and adverse events, while adhering to all other scope and element items. Increased numbers of professionals are permitted to treat and bill using telehealth, additional services are permitted for audio-only telemedicine, the time frame for providing requested medical records is increased and the in-service education requirements for some LTC facility staff and the Life Safety Code are relaxed.

April 24, 2020: Nursing Home Compare domain will remain constant

The Centers for Medicare & Medicaid Services (CMS) published that they will be holding the data in the Nursing Home Compare and the Five-Star Quality Rating System constant in their April 24 memorandum reference number QSO-20-28-NH.

CMS recently announced that they would continue to prioritize focused inspections for infection control and urgent patient threats (“immediate jeopardy”) to keep long-term care (LTC) residents safe during the COVID-19 pandemic, while suspending other surveys until further notice. The new survey plan will change which nursing homes are being inspected, and the types of inspections that are being conducted, and the Five-Star Quality Rating System wouldn’t properly rate the facilities. CMS believes that holding the Nursing Home Compare data constant is the only way to ensure fair information to consumers. The health inspections conducted on or after March 4, 2020 will be posted publicly, but will not be used to calculate a nursing home’s Five-Star rating. The information will be updated on the Nursing Home Compare website on April 29, 2020.

After the prioritized surveys, the CMS will post a list of the conducted surveys with their findings on the Nursing Home Compare website, along with the average number of nursing and total staff working on-site in each home, on each day. The information that the new surveys collect will also help to direct adequate personal protective equipment (PPE) and COVID-19 testing to the nursing homes most in need.

An FAQ document is included in the memo on Pages 4-15 to clarify recently issued guidance and provide State Survey Agencies and nursing home providers with additional information.

April 19, 2020: Nursing home providers required to report COVID-19 cases

New guidelines issued are requiring nursing homes to directly inform the Centers for Disease Control and Prevention (CDC) of COVID-19 cases in their facilities, and cooperate with CDC surveillance efforts to stop the spread.  

“Nursing homes have been ground zero for COVID-19. Today’s action supports CMS’ longstanding commitment to providing transparent and timely information to residents and their families,” said CMS Administrator Seema Verma. “Nursing home reporting to the CDC is a critical component of the go-forward national COVID-19 surveillance system and to efforts to reopen America.”

CMS noted that the CDC will be providing a reporting tool to nursing homes that will “support federal efforts to collect nationwide data to assist in COVID-19 surveillance and response.”

Separate from the reporting required to CDC, CMS issued related guidance on April 19 that nursing homes need to inform residents, their families and representatives of conditions at the facilities. All necessary parties need to be informed “within 12 hours of the occurrence of a single confirmed case of COVID-19, or three or more residents or staff with new-onset respiratory symptoms that occur within 72 hours.” Failure to report resident or staff infections or provide timely notification to residents and families “could result in an enforcement action.”

The memo included information related to reporting requirements of residents who test positive for COVID-19 and notification of resident representatives. The reference number for the memorandum is QSO-20-26-NH. CMS stated that additional rules will be provided related to this memorandum as well as a tool for reporting.   

April 15, 2020: CMS extends suspension of standard surveys

Standard surveys were suspended by CMS on March 23 for three weeks. On April 15, the CMS had a national call with nursing homes and officially extended the suspension of specific surveys until further notice.

In the March 23 memo, CMS outlined which federal and state survey agency (SSA) surveys would be completed during COVID-19. Under section 1135(b)(5) of the Social Security Act, CMS is prioritizing and suspending specific surveys by authorizing modification of timetables and deadlines for the performance of certain required activities.

The priorities during the pandemic emergency declaration will be “immediate jeopardy” surveys and a Focused Infection Control Survey to evaluate the areas that will require the most attention. An infection control tool is provided on pages 10-16 in the memo for providers to utilize when evaluating their infection control processes, and the surveyors may request that the survey is completed. Surveyors must ensure that they are able to meet personal protective equipment (PPE) requirements outlined by the CDC to safely perform an on-site survey.

Other important items included in the March 23 memo review the remedies related to survey activities during the pandemic. It further addresses requirements for access of other healthcare staff into the facilities, limitation on visitors, necessary signage and education for all healthcare providers.

April 13, 2020: LTC residents protected during COVID-19 with transfer and discharge flexibility

CMS issued unprecedented flexibility to long-term care (LTC) facilities to protect residents during the COVID-19 pandemic, which is detailed in the CMS memorandum, "2019 Novel Coronavirus (COVID-19) Long-Term Care Facility Transfer Scenarios, Reference Number: QS0-20-25-NH.”

The memo states, “CMS is providing supplemental information for transferring or discharging residents between facilities for the purpose of cohorting residents based on COVID-19 status (i.e., positive, negative, unknown/under observation).” The waiver under 42 CFR 483.90 will assist to prevent transmission of COVID-19 by allowing a non-certified building to be temporarily certified and available for use by an LTC provider if there are isolation or cohorting needs of vulnerable residents. The additional regulatory requirements related to resident transfers and relocations include meeting the needs for infection prevention and control, homelike environment, resident rights and fire safety, to name a few.

To ensure acceptable relocation of LTC residents, providers should review the recently issued federal blanket waivers to determine CMS requirements. View the CMS memo, which provides several depictions and explanations of transfer scenarios, including which staff teams provide care for the transferred residents and how providers should bill Medicare.

The detailed instructions are effective for 30 days as of the date of the memo, April 13, 2020. The CMS-issued blanket waivers do not require additional state applications.

April 9, 2020: LTC facilities receive relief with issuance of blanket waivers

Centers for Medicare & Medicaid Services (CMS) issued additional waivers for providers in long-term care on April 9, 2020, which is detailed on page 10 of the CMS document. During an emergency, the Secretary of the Department of Health and Human Services can temporarily modify or waive certain requirements using section 1135 of the Social Security Act.

There are several different 1135 waivers, including Medicare blanket waivers. They allow states and providers to skip the application process for an individual 1135 waiver, which will reduce the limitations and roadblocks that are faced by providers.

Due to the COVID-19 pandemic, there is a retroactive effective date of March 1, 2020, and will be effective until the end of the emergency declaration.

The most significant item for long-term care will permit providers to transfer patients within their facilities or to other facilities for the purpose of cohorting and separating those who have tested positive from those who haven’t. Non-skilled nursing facilities, including schools, dormitories, convention centers and nonresident room spaces within the provider facility can be temporarily certified to be used for emergency coronavirus care areas if there is an identified need.

This group of waivers also includes items for Minimum Data Set (MDS) assessments and Payroll-Based Journal (PBJ) submissions, as well as the requirement for on-site physician visits of residents and specific training requirements for nursing assistants to increase the workforce for resident care. View the full document regarding the changes on the CMS website.

For more information on the blanket waivers for long-term care facilities, or to learn how Baker Tilly’s senior living specialists can help, contact our team.

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