Kentucky Cabinet for Health and Family Services Updates Guidance on Long-Term Care Facility Admissions, Discharges, and Transfers

On August 28, 2020, the Kentucky Cabinet for Health and Family Services (CHFS) issued updated guidance in a Provider Guidance Memo concerning the determination of the most appropriate setting for care of a resident of a long-term care facility (LTCF) who exhibits symptoms of, or tests positive for, COVID-19.  The updated guidance instructs providers and facilities on the factors for determining when a LTCF resident with confirmed or suspected infection should be admitted or transferred to a hospital and when a hospital patient should be admitted to a LTCF.  The guidance also advises on testing protocols following a resident’s recovery from COVID-19 and release from isolation.  This updated guidance is based on the most current, evidence-based recommendations from the Centers for Disease Control and Prevention, Centers for Medicare & Medicaid Services, White House Coronavirus Task Force, and the CHFS Long-Term Care Advisory Task Force.

Nursing Homes May Qualify for Performance-Based Provider Relief Funds

As we reported last week, the Department of Health and Human Services (HHS) announced that it was developing “performance indicators” for distribution of an additional $2 billion to nursing homes this fall.  On September 3, 2020, HHS published the metrics for evaluating performance for these performance-based incentive payments.  Qualified nursing homes and skilled nursing facilities that report data through the National Healthcare Safety Network long-term care facility (LTCF) COVID-19 module will be measured against a baseline level of infection in the community where the facility is located.  Against this baseline, facilities will have performance measured on: (1) ability to keep new COVID infection rates low among residents; and (2) ability to keep COVID mortality low among residents. There will be four individual performance periods (September, October, November, and December) each with $500 million available.  Nursing homes will not have to apply to receive a share of this $2 billion incentive payment allocation, but will need to agree to the applicable Terms and Conditions.

HHS Has Distributed $2.5 Billion to Nursing Homes

On August 27, 2020, the Department of Health and Human Services (HHS) announced it has distributed almost $2.5 billion of an allocated $5 billion from the Provider Relief Fund to nursing homes to support increased testing, staffing, and supply needs to combat COVID-19.  HHS plans to distribute another $2 billion to nursing homes later this fall based on “certain performance indicators” that have yet to be published.  According to HHS data, 208 Kentucky nursing homes have received a total of roughly $41 million from the $2.5 billion distribution.

HHS Announces Additional CARES Act Funds for Nursing Homes

On August 7, 2020, the Department of Health and Human Services (HHS) announced that nursing homes and long-term care facilities will receive an additional $5 billion in payments from the Provider Relief Fund. $2.5 billion will support increased testing, staffing, Personal Protective Equipment (PPE) needs, and establishment of COVID-19 isolation facilities. The remaining $2.5 billion will be linked to nursing home performance, which will consider the prevalence of COVID-19 in the nursing home’s local geography and the facility’s ability within this framework to control COVID-19 spread and related fatalities among its residents.

FAQs on COVID-19 Testing for Long-Term Care Facilities

On August 5, 2020, the Kentucky Cabinet for Health & Family Services (CHFS) answered Frequently Asked Questions relating to surveillance COVID-19 Testing for long-term care facilities.  These FAQs address common questions about testing of staff and residents, such as who should be tested, how often, should staff be tested if not working, etc.  This follows up the previously issued Provider Guidance: Surveillance COVID-19 Testing for Long-Term Care Facilities which recommends testing each staff member (including agency staff, contracted health professionals and others who regularly enter the facility) at least bi-weekly.

Legal Professionals Weigh the Long-Term Impact of CMS 1135 Pandemic Waivers

In response to the COVID-19 public health emergency (PHE), the Centers for Medicare & Medicaid Services (CMS) published numerous 1135 blanket waivers (available here) to help counteract the strains and limitations placed on healthcare providers caused by the virus. On July 24, 2020, the American Health Lawyers Association published a detailed article considering the complexities of continued or amended waivers in: (1) the expansion of telehealth services; (2) the three-day hospital stay requirement for skilled nursing facility (SNF) coverage; (3) hospitals’ ability to provide SNF care; (4) hospitals’ ability to provide care at different locations; (5) waivers to certain supervision requirements; (6) delegation of duties in long-term care facilities; (7) patient access to records in long-term care facilities and home health agencies; (8) use of focus surveys in long-term care; and (9) other blanket waivers. Considerations regarding access to care, standards of care, and fraud and abuse risks will be forefront to CMS’s and lawmakers’ approaches as they look at long-term changes.

Nursing Homes Receive Additional Funding and Staff Testing Mandates

The Centers for Medicare & Medicaid Services (CMS) has announced an additional $5 billion of funding from the Provider Relief Fund will go to Medicare-certified long term care facilities to support the enhancement of nursing homes’ response to COVID-19. These funds are meant to assist facilities with enhancing infection control, building up staffing, increasing testing, and providing additional services such as implementing technology to assist residents and families. Nursing homes must participate in the Nursing Home COVID-19 Training on infection control and best practices as a condition to receive the funding. CMS will also begin requiring all nursing homes in states with a 5% positive rate or higher to perform COVID-19 diagnostic testing on all nursing home staff every week. Additional testing devices will be distributed to facilities to support this requirement, beginning with 600 devices shipping this week.

Wyatt’s Pat Mulloy Elected Chairman of Argentum Board of Directors

Wyatt, Tarrant & Combs is pleased to announce that Pat Mulloy, a member of the Firm’s Corporate & Securities Team, has been elected Chairman of the Argentum Board of Directors. Mr. Mulloy previously served as Argentum’s Vice Chairman. Argentum is the leading national association that is exclusively dedicated to supporting companies operating professionally managed, resident-centered senior living communities and the older adults and families they serve. Argentum has been advocating for choice, independence, dignity and quality of life for all older adults since 1990.

Click here to read the full press release. 

CMS Makes Numerous Updates to its Provider-Specific Fact Sheets on COVID-19 Waivers

From April 29, 2020 through May 6, 2020, CMS continued to update its multiple fact sheets that summarize changes it has made to give more flexibility to providers in response to COVID-19. The updated Fact Sheets include the following:

CMS has been continually updating its broad waivers. For the latest version, check the CMS Coronavirus Waivers & Flexibilities webpage.

New Long-Term Care Facility Guidance

On April 24, 2020, the Centers for Medicare & Medicaid Services (CMS) published new guidance to State Survey Agencies regarding modifications meant to help long-term care facilities respond to the COVID-19 public health emergency. Specifically, CMS implemented a targeted inspection plan in March focused on urgent patient safety threats and infection control. Although the results of health inspections conducted after March 4, 2020 will be posted publicly, they will not be used to calculate a facility’s health inspection star ratings. CMS also attached FAQs that expand on guidance about visitation and operations of long-term care facilities during the COVID-19 emergency.