COVID-19: Legal updates for long-term care and nursing home facilities
Nursing homes, assisted living facilities, independent living facilities, skilled nursing facilities and more
The ongoing coronavirus/COVID-19 pandemic is causing incredible new challenges and stresses to all Americans (and especially health care providers) every day. Simultaneously, governments at every level continue to issue new statutory and regulatory responses, offering providers new opportunities to confront and overcome these challenges.
Below is a topical guide for administrators and employees of residential facilities caring for the elderly – a population particularly vulnerable to COVID-19. For questions regarding how these changes may affect you, please contact the health care attorneys at Hagwood & Tipton.
Notification requirements for COVID-positive residents and staff
On April 11, 2020, the American Health Care Association and the National Center for Assisted Living (AHCA/NCAL) issued a statement updating its guidance to long-term care providers about the need to notify their state survey agencies about COVID-positive residents and staff.
In addition to facilities’ current health department reporting requirements, AHCA/NCAL recommended that all nursing homes and assisted living communities report each COVID-19 positive test result for resident and staff cases to the state survey agency. The organization also advised facilities to notify all residents, families and staff when the facility has its first confirmed COVID-19 case. Click here for the full guidance.
On April 19, 2020, in a memorandum to state survey agency directors (QSO-20-26-NH), the Centers for Medicare and Medicaid Services announced that it will soon publish rulemaking requiring skilled nursing facilities to report data regarding communicable diseases, health care-associated infections and potential outbreaks, including COVID-19, to the CDC in a standardized format and frequency defined by CMS and CDC. This is in addition to the existing requirement to report to state and local health departments.
Failure to report confirmed cases of COVID-19 among residents or staff or Persons under Investigation (PUI) could result in enforcement action.
CMS will also preview a new requirement for facilities to notify residents and their representatives when new COVID-19 cases occur.
Medicare coverage for skilled nursing facilities
On March 13, 2020, the Centers for Medicare and Medicaid Services announced that during the ongoing national emergency, it would waive the requirement for a three-day prior hospitalization for coverage in a skilled nursing facility stay; and, for certain beneficiaries who recently exhausted their SNF benefits, authorize renewed SNF coverage without first having to start a new benefit period
As part of complying with these orders, providers likely need to update existing policies and/or create new policies and notifications to staff, residents, and friends and family members regarding visitation.
- Tennessee – On March 22, 2020, Tennessee Governor Bill Lee issued an executive order on social distancing, which included halting visits to nursing homes, hospitals and long-term care facilities.
- Mississippi – On March 24, 2020, Mississippi Governor Tate Reeves issued an executive order on social distancing, which included halting visits to nursing homes, hospitals and long-term care facilities.
CMS regulatory waivers and rule changes
Revised CMS inspection process
- On March 23, 2020, the Centers for Medicare and Medicaid Services issued a news release announcing an enhanced, focused inspection process, including a self-assessment tool for providers to employ, which is available to all inspectors and facilities to be used on a national scale.
- CMS also announced that it is now temporarily postponing routine inspections to focus solely on infection control and Immediate Jeopardy for at least the next three weeks. Under the new focused survey process, CMS will only prioritize and conduct federal inspections for complaints triaged at the Immediate Jeopardy level, targeted infection control inspections and self-assessments.
- CMS will not conduct standard inspections and non-IJ revisits during this time.
Medicaid Section 1135 waivers
- Effective March 1, 2020, through the end of the ongoing public health emergency, the Centers for Medicare and Medicaid Services is approving Medicaid Section 1135 waivers for 11 states, including Alabama, Mississippi and North Carolina. This allows states to temporarily suspend prior authorization requirements, extend existing authorizations for services, suspend some nursing home pre-admission reviews, ease reimbursement for care delivered in alternative settings due to facility evacuations, and relax provider enrollment requirements.
Preventing COVID-19 spread in residential facilities
On March 23, 2020, the Centers for Disease Control issued interim guidance titled “Preventing the Spread of COVID-19 in Retirement Communities and Independent Living Facilities” aimed at facility owners, administrators, operators, workers, volunteers, visitors and residents.
Nursing home best practices
On May 13, 2020, the Centers for Medicare and Medicaid Services released a toolkit designed to aid nursing homes and all other agencies that provide oversight with additional resources to fight the ongoing pandemic within nursing homes.
This toolkit builds upon their efforts to provide long-term care facilities and their workers with guidance, protection and support. The toolkit also provides health care workers with resources to ensure quality control, infection control and how to maintain proper staffing.
Assistance with these or other health care matters