May 12, 2020
NHSN COVID-19 mandated reporting for nursing homes has begun. AHCA recommends accurately reporting the staffing and PPE situation at nursing homes based on normal standards and guidance for PPE and staffing, not conservation guidance.  Federal and state governments will use this data to hold nursing homes accountable for care and services provided and to identify who needs additional resources . It is important that the data reported to NHSN gives an accurate picture of staffing and PPE as well as the other areas collected in NHSN.

Given the instructions on NHSN, reporting that you have what you need tells CMS that you have enough PPE and staff to follow conventional and normal practices, which will likely be used by surveyors when comparing what they find during their surveys. Please use the below guidelines.

Staffing NHSN asks, “Does your organization have a shortage of staff and/or personnel?” Answer YES if any of the following are occurring during the time period of reporting:
  • Staffing less than your facility needs or internal policies for staffing ratios prior to COVID or based on increased needs since COVID.
  • Employing contingency or crisis strategies for staffing shortage.
  • Using more agency staff than you used before the pandemic.
  • Using volunteers for staffing needs more than what you may have used prior to the pandemic.
  • Using any temporary positions per waiver allowances (such as temporary nurse aide or temporary feeding assistant).

PPE NHSN asks, “Do you have enough for one week?” each for N95 masks, surgical masks, eye protection, gowns, gloves, and alcohol-based hand sanitizer. Answer NO if any of the following are occurring during the time period of reporting:
  • Employing any conservation strategies for PPE use. If you are not able to use PPE per conventional transmission-based precautions in place before the pandemic, you should answer NO.
  • Using alternative PPE such as cloth masks or other types of face coverings, clothing or other types of coverings instead of surgical gowns, or glasses for eye protection.
  • Reusing any single use supply item such as gown or masks.
  • If additional residents in the next week will need to be placed on precautions, it will compromise your PPE supply.
  • If additional staff in the next week will need to use PPE when returning to work, it will compromise your PPE supply.
  • If visitors or contractors in the next week need to visit, it will compromise your PPE supply.

As a reminder, nursing homes should keep documentation of their efforts to secure more PPE as well as staffing . You should report to your local and state health departments that you are employing contingency and crisis strategies to conserve PPE and staffing. 
The Department of Health’s Director of Nursing Practice has determined that performing the COVID-19 test via nasopharyngeal or anterior nares swabbing is a task that can be delegated to qualified nursing assistants and home care aides in the assisted living setting. This will allow assisted living facilities to perform resident testing in-house on residents with current physician’s orders for testing. For a video on how to perform a nasopharyngeal swab test, click here . For directions on how to conduct an anterior nares swab test, click here .
Our law firm, Lane Powell, has received clarification on the issue of B&O taxes being applied to some of the CARES Act relief that has been provided to members.   The Department of Revenue (DOR) will be posting a statement on its website soon advising businesses not to report or pay B&O tax on CARES Act relief payments for the time being.  The Department has determined that businesses receiving assistance under federal programs related to COVID-19 (including the federal Paycheck Protection Program (PPP)) should not report such assistance as gross receipts for B&O tax purposes and should not pay B&O tax on that assistance at the present time.

The Department believes that there may be legislative interest in clarifying the applicable statutes, especially after the various programs at issue have been identified and analyzed more thoroughly.   DOR has been looking at the question and has not yet developed a firm opinion as to whether any CARES Act relief payments are or are not subject to tax. DOR is also reportedly concerned about the fluidity of the different relief programs and expects that the Legislature will weigh in on the taxability of relief payments. Therefore, DOR wants to defer a decision until after the Legislature has had an opportunity to address the issue.
The Department will delay any final decision on taxability or enforcement actions until after the Legislature has had an opportunity to act. In the meantime, no penalties or interest will accrue with regard to any tax that may be due on such receipts until further notice.   In the event that payments are ultimately determined to be taxable, DOR will reportedly waive interest and late payment penalties on such taxes so that businesses are not penalized for following the recommendation not to report or pay tax.
The guidance should be posted soon. WHCA will alert you to the posting as soon as it hits the DOR website.
Health care providers who have conducted COVID-19 testing of uninsured individuals or provided treatment to uninsured individuals with a COVID-19 diagnosis on or after February 4, 2020, can request claims reimbursement through the HRSA COVID-19 Claims Reimbursement program electronically and will be reimbursed generally at Medicare rates, subject to available funding. More information can be found here . For claims for COVID-19 Testing and Testing-Related Items and Services, a patient is considered uninsured if the patient does not have coverage through an individual or employer-sponsored plan, a federal healthcare program, or the Federal Employees Health Benefits Program at the time the services were rendered. For claims for treatment for positive cases of COVID-19, a patient is considered uninsured if the patient did not have any health care coverage at the time the services were rendered.
Providers must verify and attest that to the best of the provider's knowledge, the patient does not have individual, employer-sponsored, Medicare or Medicaid coverage, and no other payer will reimburse them for COVID-19 testing and/or treatment for that patient. Providers may submit a claim for uninsured individuals before Medicaid eligibility determination is complete. However, if the individual is retroactively enrolled in Medicaid as of the date of service, the provider must return the payment to HRSA.
The White House yesterday recommended to state governors to test all residents and staff in nursing homes across the country within the next two weeks. This is not an order from the federal government and as of May 12, no specific written recommendation has been made. However, we expect to see states develop plans to put these recommendations into place to the extent feasible. Members should review AHCA/NCAL’s testing guidance

Providers should prepare to meet this requirement by contacting their state health department to seek information on preferred vendors, testing protocols, availability of tests and reimbursement for testing. You should also ask the state health department what to do and document if a resident or staff person refuses to be tested. Document all your communications with the state health department and the steps you take as a result. 

In absence of direction from the state health department, facilities can refer to AHCA/NCAL’s list of vendors  who can provide testing in the long term care setting. This list is continually updated as new vendors and testing opportunities are available, so please check back frequently.

When testing residents and staff, providers must use PCR tests and should not use antibody tests in place of PCR tests unless instructed by your state officials. Antigen tests are new to the market and while we believe they can be used to comply with this new guidance, their availability is still very limited.

Residents who test positive for COVID-19 must be isolated and wear a source control mask until placed in isolation. Providers are encouraged to follow AHCA/NCAL guidance on steps to take when COVID-19 gets in a facility . Providers should also explore cohorting  with other positive residents, if possible.

Providers should review the CDC Return to Work Criteria  guidance for considerations for permitting health care providers (HCP) to return to work without meeting all return to work criteria outlined. In addition, providers should refer to CDC’s Strategies to Mitigate Healthcare Personnel Staffing Shortages for information on contingency and crisis strategies should a large number of your staff test positive.
AHCA/NCAL is seeking feedback  from members on COVID-19 test availability and use in both skilled nursing and assisted living settings. Information from this survey will help identify challenges and advocate for more availability and clearer guidance on how testing should be used and reimbursed on a national level.

Please take a few minutes to complete the survey by Wednesday, May 13.
The Department of Health will host its weekly webinar on Thursday, May 7, at 11:00 AM. This weekly call is designed for healthcare providers enabling them access to DOH officials and experts so they can get answers to questions and additional information to help them respond to the COVID-19 public health emergency. Register in advance , and once you register, you can save the link to join each week through May 28 as an appointment on your calendar so you will not need to search for the link each week. The password will be provided upon registration.
In response to questions that have been asked throughout the course of the COVID-19 pandemic, WHCA has created a list of FAQs for Assisted Living and for Skilled Nursing . We encourage you to review the updated documents if you have questions about COVID-19.
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.