COVID-19 UPDATE #27
May 1, 2020
CMS ISSUES INTERIM FINAL RULE WITH NEW REQUIREMENTS FOR COVID-19 REPORTING FOR NURSING HOMES
Last night, CMS issued an interim final rule with comment period which revises §483.80 establishing explicit reporting requirements for long term care facilities to report information related to COVID-19 cases among facility residents and staff. These reporting requirements are applicable on the effective date of this interim final rule which is the date of the publication at the Office of the Federal Register. AHCA will notify members when it is published. 

Under this new requirement, nursing facilities must: 
Electronically Report to CDC’s National Healthcare Safety Network (NHSN)
  • Electronically report information about COVID-19 in a standardized format specified by the Secretary, which will rely on CDC NHSN portal that went live on Wednesday, April 29 with the new LTCF COVID-19 module. This report to CDC must include, but is not limited to:
  • Suspected and confirmed COVID-19 infections among residents and staff, including residents previously treated for COVID-19; 
  • Total deaths and COVID-19 deaths among residents and staff; 
  • Personal protective equipment and hand hygiene supplies in the facility; 
  • Ventilator capacity and supplies in the facility; 
  • Resident beds and census; 
  • Access to COVID-19 testing while the resident is in the facility; 
  • Staffing shortages; and 
  • Other information specified by the Secretary. 
  • Provide the information specified in the list above at a frequency specified by the Secretary, but no less than weekly to NHSN.
  • This information will be posted publicly by CMS to support protecting the health and safety of residents, personnel, and the general public. 

In addition, providers must continue to comply with state and local reporting requirements for COVID-19. AHCA will continue to advocate to align State and CDC reporting to avoid duplication of effort that is taking staff away from resident care. 
 
Inform Residents, their Representatives, and Families 
  • Inform residents, their representatives, and families of those residing in facilities by 5 p.m. the next calendar day following the occurrence of:
  • Either a single confirmed infection of COVID-19, or 
  • Three or more residents or staff with new-onset of respiratory symptoms occurring within 72 hours of each other. 
  • This information must:
  • Not include personally identifiable information; 
  • Include information on mitigating actions implemented to prevent or reduce the risk of transmission, including if normal operations of the facility will be altered; and 
  • Include any cumulative updates for residents, their representatives, and families at least weekly or by 5 p.m. the next calendar day following the subsequent occurrence of either: 
  • Each time a confirmed infection of COVID-19 is identified, or 
  • Whenever three or more residents or staff with new onset of respiratory symptoms occur within 72 hours of each other.
  • The preamble to the rule states that facilities are not expected to make individual calls. Providers may use general communication platforms easily available to residents, representatives and families such as listservs, website postings, and recorded telephone messages.

AHCA will continue to advocate for CMS to issue clarifying language that makes this feasible and as least burdensome as possible.
GETTING STARTED WITH NHSN REPORTING ON COVID-19 FOR NURSING HOMES
On April 28, the Centers for Disease Control and Prevention (CDC) released the National Healthcare Safety Network (NHSN) COVID-19 reporting module  for skilled nursing facilities. Currently enrolled facilities will see the new module when they log in. Centers who were not previously enrolled in NHSN will be required to go through an expedited enrollment process .

Daily reporting to NHSN provides the timeliest data which will be informative and provide situational awareness at both state and national levels. However, at a minimum centers should enter data at least once a week.
 
Data uploaded to NHSN can be done manually or through embedded import functions using CSV files. The COVID-19 module is divided into four separate reporting pathways which include:
  • Resident Impact and Facility Capacity
  • Staff and Personnel Impact
  • Supplies and Personal Protective Equipment
  • Ventilator Capacity and Supplies

Centers can choose one person or multiple people within their center to access and upload information to NHSN.
ORDERS FOR COVID-19 TESTING IN ASSISTED LIVING FACILITIES
In order to conduct facility-wide testing of residents, it is highly recommended that staff reach out to each resident’s primary care provider for a written order for the testing.  These orders might be once only, or a “standing order” for current and any possible future testing needs.
MASKS AND EYE PROTECTION IN ASSISTED LIVING FACILITIES
Recently Residential Care Services (RCS) issued a Dear Administrator letter on the delivery and use of cloth masks. WHCA highly recommends any use of cloth masks be limited to residents only. In dire emergencies only, when surgical and/or N95 masks are in significant limited supply, cloth masks may need to be used for staff who do not come into contact with residents whatsoever. Ideally, all staff wears medical-grade masks, with N-95 masks worn by those staff coming into contact with residents while providing care.

Current recommendations from the Department of Health now include staff wear not only masks at all times while at work, but also eye protection. These recommendations further protect staff and ultimately residents.
NAR AND PHYSICAL PLANT WAIVERS CONTINUED BY LEGISLATURE
Under Washington law, Governor Inslee may only waive regulations for 30 days by emergency proclamation. After that, the Legislature must approve waivers. On April 29, three Inslee proclamations were extended by the Legislature until May 9. Proclamations 20-37 and 20-38  were extended until May 9. The 120-day timeline on NAR certification continues to be waived, and regulations that are waived to increase capacity for COVID-19 care are also continued until May 9. We continue to urge the Department and policymakers to ensure that the process for reimplementing standards is sequenced and thoughtful. Click  here for the WHCA tracking document that details waived regulations in Washington.
IS FEDERAL ASSISTANCE SUBJECT TO THE STATE'S B&O TAX?
Over the course of the last month, skilled nursing providers have received federal assistance in the form of increased Federal Medical Assistance Percentage (FMAP), accelerated Medicare payments, two tranches of federal grant money, and Small Business Administration (SBA) loans. Starting this week, our Medicaid assisted living facilities should also be receiving enhanced FMAP funding as well as additional federal Medicaid relief.
 
WHCA has asked its law firm, Lane Powell, to determine to what extent any of these funds will or could be subject to the state’s B&O tax. The state of Washington’s Department of Revenue (DOR) does not currently have any public guidance specific to any CARES Act relief. Lane Powell is looking into the issue and we should have further guidance soon. We believe there is a strong position that grants and forgivable loans provided to healthcare providers under the Medicare stimulus program are not subject to B&O tax. However, it is possible that the DOR may ultimately take a different position.
 
It should be kept in mind that the B&O tax is an excise tax imposed on the privilege of engaging in business, measured by the gross income of the business engaged in. Gross income of the business in turn is defined as “the consideration … actually received,  by reason of the business engaged in .” Since the stimulus payments may not be considered compensation to healthcare providers in exchange for engaging in business activities, they may not be considered gross income subject to B&O tax.
 
Based upon a preliminary analysis, the skilled nursing FMAP Medicaid rate add-on and the coming assisted living FMAP Medicaid rate add-on are most likely subject to the B&O tax given that they can be considered a component of the Medicaid rate. On the other hand, the skilled nursing facility accelerated Medicare payments will most likely be considered loans not subject to B&O taxes. But, that is where the clarity ends. At this juncture it is unclear how the federal grants and the forgivable SBA loans will be considered by DOR.
 
We would note that since the statutory definition of gross income also looks to how the amount is accounted for in the taxpayer’s accounting records, the non-taxable treatment may be further supported if it is reflected in the company’s accounting records in a way that does not characterize it as business income; perhaps by establishing a separate account for “federal stimulus grants and loans.”
 
We have engaged Lane Powell to address these questions and more. WHCA believes that our members will be well served if DOR is pressured to publicly address the issue now – when political pressure will be against imposing tax on federal efforts to provide a lifeline during a widespread pandemic. We want to remind you that the information in this email is preliminary in nature and should not be considered a legal opinion or legal advice. We will continue to keep you informed of our law firm’s progress.
INSLEE ISSUES GUIDANCE TO CLARIFY GUIDANCE ON ELECTIVE SURGERIES
Governor Jay Inslee has issued additional guidance for the existing order on limiting non-urgent medical procedures. The guidance focuses on the definition of harm and provides guidance for physicians and clinicians. "Washingtonians have taken the threat of COVID-19 seriously, and that includes our doctors and nurses. But there are some much needed procedures that aren't being performed that should be, and we need to make sure that everyone gets the care they need during this time," Inslee said. 

The decision to perform any surgery or procedure in hospitals, ambulatory surgical facilities, dental, orthodontic, and endodontic offices, including examples of those that could be delayed in the Proclamation, should be weighed against the following criteria when considering potential harm to a patient’s health and well-being as described above:
  • Expected advancement of disease process
  • Possibility that delay results in more complex future surgery or treatment
  • Increased loss of function
  • Continuing or worsening of significant or severe pain
  • Deterioration of the patient’s condition or overall health
  • Delay would be expected to result in a less-positive ultimate medical or surgical outcome
  • Leaving a condition untreated could render the patient more vulnerable to COVID-19 contraction, or resultant disease morbidity and/or mortality
  • Non-surgical alternatives are not available or appropriate per current standards of care
  • Patient’s co-morbidities or risk factors for morbidity or mortality, if inflicted with COVID-19 after procedure is performed

Furthermore, diagnostic imaging, diagnostic procedures or testing should continue in all settings if disease is suspected, based on clinical judgement that uses the same definition of harm and criteria as listed above.
DEAR ADMINISTRATOR LETTER ADDRESSES PHYSICIAN SERVICES IN NURSING HOMES
In a Dear Administrator letter dated April 29, 2020, providers are informed that the Department filed an emergency rule ( WSR 20-10-034 ) effective April 28, 2020, related to Physician Services. WAC 388-97-1260 was amended to permit a physician to delegate tasks to a registered nurse practitioner or a physician assistant, even if it is required to be performed by the physician in regulation and regardless of the frequency of the delegation.

The amendment does not change the required frequency of physician/delegate visits or the requirement for the physician to supervise the delegate. The delegate must only perform tasks within the scope of practice of their credential. The adoption of the rule helps to align the state rule with rules the Centers for Medicare and Medicaid Services (CMS) has waived or amended in response to the COVID-19 pandemic. The state emergency rule expires August 26, 2020.
LONG TERM CARE FACILITIES SHOULD CONSIDER CALCULATING LOSSES
Businesses across the US have inquired if there is coverage for Business Interruption due to COVID-19. Long term care facilities are no exception. Many states have already drafted language that would require insurance companies to pay claims. Pandemic related business interruption losses incurred by US small businesses alone are estimated to be between $200 and $300 billion. Whether there is coverage or not, Propel Insurance believes it is important to protect insurance a buyer's rights under the policy, and these rights can be compromised if a claim is not turned in. 

In anticipation of the need to prove financial loss, Propel has created a COVID-19 Business Interruption Calculator for Senior Care Clients. You can access the full article here .   Thank you to Propel Insurance for providing this information.
WASHINGTON DEPARTMENT OF LABOR AND INDUSTRIES ISSUES WARNING RELATED TO PPE STERILIZATION
The Department of Labor and Industries has released a DOSH Hazard Alert regarding Ethylene Oxide (EtO) Sterilization Systems and the cleaning of masks and respirators. Facilities are advised that EtO systems cannot be used to sterilize masks and respirators. 
 
Hospitals and clinics are required to use their ethylene oxide (EtO) sterilizer systems for their intended and manufacturer-approved purposes. EtO sterilizer systems must NOT be used to sterilize masks, respirators, PPE or items worn by humans.
 
FDA approved, state endorsed and federally funded decontamination of N-95s is available  for health care and first responders  at the State Emergency Operations Center (SEOC) at Camp Murray. FEMA will pay for disinfecting the N-95s.  For information, call (614) 327-2608 or email solutions@battelle.org .
 
To view this, and all DOSH Hazard Alerts, click here .
WHCA TO HOST WEBINAR: LIFE SAFETY CONSIDERATIONS DURING THE MANAGEMENT OF COVID-19
WHCA understands that members are experiencing Life Safety Code issues during the management of COVID-19. To address this matter, we have developed a new program to help providers navigate through the challenges of compliance in the current environment of care. Issues pertaining to the execution of fire drills, scheduled inspections, testing and maintenance of critical fire and life safety systems, use and storage of ABHR solution, and other code compliance issues have likely emerged in all facilities. WHCA has engaged Stan Szpytek of Fire and Life Safety, Inc. (FLS) to provide a webinar presentation on May 7, 2020, titled,  Life Safety Consideration During the Management of COVID-19  . All registered attendees will have e-mail and telephone access to Stan's consultative services to discuss facility-specific questions regarding Life Safety Code Compliance. To register for the May 7 webinar, click  here .
ADDITIONAL RESOURCES
WHCA continues to post resources and information as it becomes available on our website . If you have questions or need additional information, please call the WHCA office at (800) 562-6170.