Long-Term Care Providers: CMS Blanket Waivers and Guidance from the Indiana State Department of Health on Hospital Discharges

Newsletter

Quarles & Brady’s Long-Term Care Practice Group continues to analyze the guidance and updates issued by federal and state agencies, including recent blanket waivers pronounced by the Centers for Medicare and Medicaid Services (CMS), as well as emergency blanket waivers and transfer and discharge guidance provided by the Indiana State Department of Health (ISDH). These agencies and others continue to issue guidance as the COVID-19 situation evolves.

CMS COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers
CMS recently updated its blanket waivers to address the ever-expanding COVID-19 pandemic. Several CMS waivers are applicable to skilled nursing facilities (SNFs), which start on page 9 of the linked guidance document. These waivers are effective retroactive to March 1, 2020.

Some of the highlights include:

  • Waiving the requirement for a 3-day prior hospitalization for coverage of a SNF stay, allowing temporary emergency coverage of SNF services without a qualifying hospital stay for people experiencing a dislocation or otherwise affected by COVID-19
  • Waiving the requirement for facilities to complete the pre-admission screening and annual resident review (PASARR) for new residents for 30 days. After 30 days, new residents with a mental or intellectual disability should receive the assessment as soon as resources become available.
  • Waiving the regulation which protects the resident’s right to participate in in-person resident groups based on social distancing recommendations issued by the Centers for Disease Control and Prevention (CDC) to help reduce the spread of COVID-19
  • Permitting physicians to provide services via telemedicine
  • Waiving the requirements which prohibit a SNF from employing a nurse aide for longer than four months without meeting certain training and certification requirements. CMS is not waiving the requirement that facilities ensure that nurse aides are able to demonstrate competency in skills and techniques necessary to care for residents.
  • Allowing for a non-SNF building to be temporarily certified and available for use by a SNF to assist with isolation processes for COVID-19 positive residents to ensure care and services are available to residents who are positive for COVID-19 while protecting other residents
  • Allowing for non-resident rooms to be used to accommodate beds for care in emergencies and to help with surge capacity, provided it is not inconsistent with a state’s emergency preparedness plan. Examples include activity rooms, meeting rooms, and dining rooms.
  • Waiving several provisions related to transfer and discharge, which is an area that is being heavily discussed by both CMS and ISDH
    • CMS is permitting facilities to group suspected or known positive COVID-19 residents in the same location, and allowing facilities to relocate individuals and roommates to other areas in the same facility. This is considered a waiver of a resident’s right to share a room with a roommate of his or her choice and the resident’s right to refuse transfer to another room. CMS advises this waiver is consistent with the CDC guidelines to prevent the transmission of COVID-19.
    • CMS is also allowing facilities to transfer or discharge residents to another facility to group positive COVID-19 cases together, group symptom free individuals together, or to transfer individuals without symptoms for a period of quarantine

There are certain exceptions to these waivers as outlined in the CMS notification on pages 11-12. For example, the waiver only applies in cases where the transferring facility receives confirmation that the receiving facility agrees to accept the resident, and CMS limits some regulatory waivers to modifications of the timing of notice requirements.

Related to this CMS blanket waiver, ISDH issued a Fourth Emergency Order on March 26, 2020, granting temporary blanket waivers which includes a Section 1135 Waiver allowing comprehensive care facilities (nursing homes) that have declared a COVID-19 facility emergency (and notified ISDH of this declaration) to provide care in any bed or room within the facility, regardless of its certification or whether it is approved for a particular category of residents or reimbursement, such as Medicaid-certified beds. ISDH waives sections of the applicable regulations related to remodels, structural changes, and bed changes for these same facilities, and permits an existing facility to relocate, convert, and reclassify beds and renumber rooms consistent with the parameters outlined in the Fourth Emergency Order. These waivers are effective retroactive to March 6, 2020.

ISDH Guidance for Hospital Discharge to Long-Term Care Facilities
Almost immediately after CMS issued its updated blanket waivers, ISDH issued its own guidance document on April 1, 2020, to address hospital discharges to long-term care facilities. The guidance specifically applies to SNFs and nursing facilities, but was incorporated—and therefore extended—to residential care facilities (assisted living facilities) through a blanket waiver issued on April 2, 2020. ISDH issued the discharge guidance to account for the expanded care for both hospital patients and long-term care residents, and to establish a safe and prompt way to transition care from hospitals to long-term care facilities for those individuals who are positive with COVID-19, but no longer require acute hospital care.

  • Transfers to Hospitals. COVID-19 has increased the need for prompt and accurate communications between long-term care facilities and hospital emergency departments. As stated in prior guidance, facilities should not send its residents to hospitals solely for COVID-19 testing. ISDH recommends transferring known or suspected COVID-19 positive residents to a hospital emergency department based on (1) the resident’s medical needs as determined by the facility and attending physician; (2) the facility’s inability to provide the necessary medical care at the facility; and (3) the resident’s goals of care.
  • Admission/Re-Admission to a Long-term Care Facility. A hospital patient does not need to meet the CDC criteria for discontinuation of transmission-based precautions to be discharged from a hospital. ISDH states in all bold that all long-term care facilities are expected to accommodate hospital discharges of patients, regardless of their COVID-19 status, though ISDH acknowledges that local conditions and a facility’s ability to care for known or suspected COVID-19 residents will vary.

ISDH developed the following protocols that are based on patient clinical status and COVID-19 testing. Clinical concern for COVID-19 is to be made by the receiving facility, in consultation with local clinical staff at the transferring facility.

 

Patient Clinical Status

Transfer Protocol

CATEGORY 1

No clinical concern for COVID-19 (e.g., no COVID-19 symptoms, such as fever, new cough, shortness of breath)

Can be transferred to long-term care facility without COVID-19 testing

CATEGORY 2

Patient with COVID-19 symptoms, but a negative test result

Can be transferred to long-term care facility. If testing is not in accordance with CDC’s test-based strategy for discontinuation of transmission-based precautions, then such precautions should continue after transfer per CDC’s non-test based strategy.

CATEGORY 3

Patient with COVID-19 symptoms and pending test results

No transfer until test results confirmed. Testing should be done in coordination with ISDH. The facility should follow the same guidance for Category 2 patients as to the type of testing. During surge capacity, stable patients may need to be transferred with test results pending, and remain on CDC’s transmission-based precautions.

CATEGORY 4

Patient is positive for COVID-19, but is no longer subject to CDC’s transmission-based precautions

May be transferred without restrictions if CDC’s transmission-based precautions have been discontinued by meeting the following criteria: (1) no fever for at least 72 hours without the use of fever-reducing medications; (2) improvement in respiratory symptoms; and (3) at least 7 days have passed since COVID-19 symptoms first appeared, and symptoms have resolved

CATEGORY 5

Patient is actively infected with COVID-19, CDC’s transmission-based precautions are still required, but deemed ready for discharge by a hospital

May be discharged to a facility prepared to isolate and manage resident, including being able to group residents positive for COVID-19 in the same unit, wing, or floor, and infection controls are in place (capable of isolation, and appropriate staffing and personal protective equipment [PPE]).

ISDH notes in its guidance that it will supply PPE through local health departments when available, and reminds facilities to update their information in EMResource, and practice conservation and re-use of current PPE supplies.

After the hospital discharge guidance was issued, ISDH issued its Fifth Emergency Order granting temporary blanket waivers for comprehensive care facilities on April 2, 2020, retroactive to March 6, 2020. This blanket waiver modifies the notice and timing requirements for informal hearing stating that the time frame is as soon as ISDH “deems practical after expiration or withdrawal of the Governor’s Declaration” of a public health emergency. This blanket waiver also modifies the transfer and discharge provisions to allow for a facility to group residents together or discharge residents to other facilities as part of a facility’s emergency response and containment measures.

Updated COVID-19 Toolkit and Guidance Concerning Liability
ISDH continues to issue documents to assist long-term care facilities with their response to COVID-19. On April 2, 2020, ISDH released a new version of the COVID-19 toolkit for long-term care facilities available here, which has been updated to include the COVID-19 guidance for hospital discharge to long-term care facilities discussed in this alert.

On April 3, 2020, ISDH also issued guidance regarding liability of health care providers, stating that facilities and individuals providing health care services in response to this declared disaster emergency may not be held civilly liable for care provided in response to that emergency event unless the care resulted from gross negligence or willful misconduct. Both “healthcare services” and “health care providers” are intended to be very broadly defined, encompassing for example individual volunteers, and even non-facility locations that are set up in response to the COVID-19 emergency.

CMS COVID-19 Long-Term Care Facility Guidance
Also on April 2, 2020, CMS issued a document, COVID-19 Long-Term Care Facility Guidance, reminding long-term care facilities to do the following:

  • Immediately ensure compliance with all CMC and CDC-related guidance related to infection control
  • Immediately implement symptom screening and temperature checks for everybody (including residents and staff and any limited outside visitors except emergency medical service workers) and assess residents for symptoms and check their temperatures daily
  • Ensure that all staff are using appropriate PPE when interacting with residents, to the extent PPE is available, and in accordance with CDC guidance on the conservation of PPE
    • All personnel should wear masks while in the facility
    • Full PPE should be worn to care for any resident with known or suspected COVID-19, and if COVID-19 transmission occurs in the facility, then full PPE should be worn to care for all residents
    • Residents should cover their noses and mouths when staff are in their room. CMS states that residents could use tissues or cloth, non-medical masks.
    • State and local health departments should also work with facilities to determine and help address needs for PPE and/or COVID-19 tests
  • Use separate staffing teams for COVID-19 positive residents, if possible, and work to designate separate facilities or units for COVID-19 positive residents

Find Answers to COVID-19 Issues, Impacts and Recommendations from Quarles & Brady.

Quarles & Brady’s Long-Term Care Practice Group continues to monitor changes and updates as they impact long-term care facilities as a result of the COVID-19 pandemic and will provide timely updates. For more information, contact your Quarles & Brady attorney or:

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