COVID-19 UPDATE #32
May 15, 2020
ARE CARES ACT RELIEF FUNDS SUBJECT TO WASHINGTON B&O TAX?
Washington’s nearly unique status as a state with no income tax has raised some consternation among businesses receiving financial relief under the CARES Act, including but not limited to the federal paycheck protection program (PPP), about their potential liability for the state Business and Occupation (B&O) tax. The Department of Revenue (DOR) advises businesses not to report or pay B&O tax on CARES Act relief payments for now. 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. In a legal update, Are Coronavirus Relief Payments Subject to Washington State’s B&O Tax? Not So Far, but the Other Shoe has Not Dropped Yet! published by Lane Powell, you can learn more about this issue and why there is not a final answer to the question of B&O tax on CARES Act relief funds. Many thanks to Lane Powell for providing access to their article.
YOUR COSTS MAY INCREASE, BUT YOUR CHARGES CAN'T?
Earlier this week, we were contacted by a representative of the Attorney General’s Office (AGO) regarding an investigation of an assisted living facility that had very recently notified its residents that it intended to raise its “care charges” by 5%. The AGO representative referenced Governor Inslee’s Proclamation 20-19.1  and stated that raising or threatening to raise rent during the pendency of the Governor’s proclamation is against the law and can carry severe penalties, including criminal penalties.
 
We engaged the AGO representative in a discussion of the Governor’s Proclamation 20-19.1 , which, in addition to rent increases, prohibits threats of eviction, notices to vacate, and the enforcement of late fees. The AGO representative admitted that the assisted living facility in question had acted innocently, and that the facility was not in any “trouble,” but asked WHCA to remind providers about the content of the Governor’s proclamation. As part of the conversation, we questioned the AGO representative about whether any increases were allowable during the pendency of the Governor’s proclamation. For example, we asked whether an assisted living resident who had a major change in condition necessitating increased care needs with attendant changes in the cost of care would violate the provisions of the Governor’s Proclamation. The AGO representative stated that this type of rate increase isn’t the same as a rent increase and is “probably” okay. In contrast, when questioned about an overall 5% increase in the cost of care due to inflationary increases like minimum wage, the AGO representative stated that this “looked and felt more like a rent increase” and should probably be avoided.
 
There are no easy answers here, and the AGO representative’s statements are not something that should be relied upon without you first consulting with a lawyer. Hopefully this will give you some sense of the direction the state is leaning when seeking to enforce Governor’s Proclamation 20-19.1 . If you have any questions or would like additional information, please email Robin Dale or call him at (800) 562-6170, extension 101.
REPORTING ACCURATELY TO NHSN COVID-19
The AHCA/NCAL Update #65 provided guidelines on accurately reporting staffing and PPE shortages to the NHSN COVID-19 LTC module. As stated in the update, it is important the data reported to NHSN gives an accurate picture as this data will be used by state and federal governments and other stakeholders.

We have received questions about the staffing guidance and have revised as shown below based on review of the latest CDC instruction for NHSN reporting.

NHSN asks, “Does your organization have a shortage of staff and/or personnel?” Any of the following situations support a  YES  response: 
  • Staffing less than your facility needs or internal policies for staffing ratios (despite efforts made by the facility to secure staff) 
  • Employing crisis strategies for staffing shortage 
  • Using any temporary positions per waiver allowances (such as temporary nurse aide or temporary feeding assistant) or agency staff, yet staffing ratios for facility needs and internal policies are still not met 

As a reminder, keep documentation of efforts to secure more PPE as well as staffing . Report to your local and state health departments if employing contingency and crisis strategies to conserve PPE and staffing.
TESTING OF LONG TERM CARE RESIDENTS AND STAFF
Many of you heard the Federal recommendation this week that all nursing homes test  both staff and residents  for COVID-19 in the next two weeks. At this point in time, there is no written direction or guidance regarding this recommendation. However, the  s tate of Washington is working on a plan to support this recommendation—not just for nursing homes/skilled nursing facilities, but also for assisted living facilities, adult family homes, and other licensed long term care settings.
 
As you can imagine, this is a huge ask with many questions that will need to be answered. Regarding this issue, WHCA is involved and at the table with the regulatory entities and stakeholders planning and problem-solving the implementation of such an enormous endeavor. You are asking the same questions we and other stakeholders are asking.  What about availability of test kits, lab capacity, testing workforce, refusals, costs, MD orders, PPE supplies, etc.?
 
No plans are currently definitive or formalized. As more information is known, WHCA will promptly inform our member s  through the WHCA COVID-19 Updates. If you have questions, please contact Vicki McNealley or Elena Madrid .
CMS ISSUES NURSING HOME BEST PRACTICES TOOLKIT TO COMBAT COVID-19
CMS released a new toolkit  intended to serve as a catalog of resources dedicated to addressing the specific challenges facing nursing homes as they combat COVID-19.

CMS says the toolkit provides resources and direction for quality improvement assistance and can help in the creation and implementation of strategies and interventions intended to manage and prevent the spread of COVID-19 within nursing homes. The toolkit outlines best practices for a variety of subjects ranging from infection control to workforce and staffing. It also provides contact information for organizations who stand ready to assist with the unique challenges posed by caring for individuals in long term care settings.
CMS RELEASES ADDITIONAL BLANKET WAIVERS
On May 11, CMS issued additional waivers  for the healthcare community that provide the flexibility needed to take care of patients during the COVID-19 public health emergency (PHE). This is in addition to the waivers that were released on April 30. The following blanket waivers are in effect, with a retroactive effective date of March 1, 2020, through the end of the emergency declaration.

Specific Life Safety Code (LSC) for Multiple Providers
CMS is waiving and modifying waivers under for ICF/IIDs and SNF/NFs. Specifically, CMS is modifying these requirements as follows:

Alcohol-based Hand-Rub (ABHR) Dispensers : CMS is waiving the requirements for the placement of ABHR dispensers for use by staff and others due to the need for the increased use of ABHR. However, ABHRs contain ethyl alcohol, which is considered a flammable liquid, and there are restrictions on the storage and location of the containers. This includes restricting access by certain patient/resident populations to prevent accidental ingestion.

Due to the increased fire risk for bulk containers (over five gallons) those will still need to be stored in a protected hazardous materials area. In addition, facilities should continue to protect ABHR dispensers against inappropriate use.

Fire Drills : Due to the inadvisability of quarterly fire drills that move and bring staff together, CMS will instead permit a documented orientation training program related to the current fire plan, which considers current facility conditions. The training should instruct employees, including existing, new, or temporary employees, on their current duties, life safety procedures, and the fire protection devices in their assigned area.

Temporary Construction : CMS is waiving requirements that would otherwise not permit temporary walls and barriers between patients.

Guidance on Documentation for Use of COVID-19 SNF Reimbursement Waivers
The CMS waivers also consider requirements that would normally be in place for providers to receive reimbursement under Medicare or Medicaid. Most significant were the waiver of the three-day prior inpatient hospital stay and the 60-day break in spell-of-illness requirements for SNF Part A benefit eligibility.

Documentation will be critical to demonstrate an organization’s rationale for the use of the waivers. In a previous update , AHCA/NCAL offered visual flowchart guidance to help with coverage determinations of these 1135 waivers. AHCA/NCAL has provided key documentation guidelines for supporting the employment of these waivers as it is foreseeable that after the emergency declaration is rescinded, CMS either through the Officer of the Inspector General (OIG) or through contractors will look to ensure that Medicare dollars were spent appropriately without fraud, waste and abuse.
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.