COVID-19 UPDATE #70
August 20, 2020
RCS THREATENS ENFORCEMENT OF EVICTION/RENT INCREASE PROCLAMATION
On August 13, 2020, Residential Care Services (RCS) issued a Dear Provider letter “reminding” assisted living and skilled nursing providers about the Governor’s latest Proclamation imposing a moratorium on evictions and rent increases. The Governor’s original proclamation on this subject was issued in mid-March. Since that time, the Attorney General’s Office (AGO) has taken the position that the Governor’s Proclamations prohibit assisted living facilities and skilled nursing facilities from transferring or discharging residents (except when there are health and safety concerns); and also prohibits any rent increases. Early on, WHCA conveyed to the AGO that there was a distinction between “rent” increases and increases that are driven by increased cost of care. In our discussion with the AGO we described the scenario whereby a resident may move into an assisted living facility with a very low level of care, but if the resident’s care needs increase, the attendant increase in costs did not constitute an increase in “rent.” The AGO seemed satisfied with this scenario not constituting an action prohibited by the Governor’s Proclamations.

At the same time, the AGO took a strong position that anything that resembled an across- the-board increase would be interpreted as a “rent” increase and potentially result in criminal prosecution. Initially, in order to avoid AGO overreach WHCA advised its members to refrain from across-the-board increases and to limit transfer/discharge notices to matters involving resident health and safety. But with the continued extension of the Governor’s eviction/rent increase moratorium into October 2020, it is time for us to take a more aggressive posture against continuation of the moratorium.

Yesterday, August 18, 2020, WHCA notified RCS that it disagrees with the agency’s position that the Governor’s Proclamation can support a moratorium on transfer/ discharges and rent increases in long term care settings. We asked RCS to consult with the AGO as to whether their August 13, 2020, letter could be enforced. Our stated position is somewhat legalistic, but in essence WHCA’s position is as follows:
  • Governor Inslee’s moratorium is couched in terms of imposing prohibitions on the Unlawful Detainer Statute (RCW 59.12) and the Residential Landlord Tenant Act (RCW 59.18);
  • The Governor’s Proclamation is specifically applicable to “dwellings” as defined in the Residential Landlord Tenant Act;
  • Skilled Nursing Facilities are not “dwellings” and, like hospitals and hotels, are specifically excluded from the Residential Landlord Tenant Act;
  • It is an open question whether assisted living facilities are governed by the Residential Landlord Tenant Act due to old case law that describes ALF residencies as incidental to the provision of services and, therefore, outside the provisions of the Act; and
  • Because both ALF and SNF are likely excluded from the Residential Landlord Tenant Act, the provisions of the moratorium cannot apply.

In addition to this legal argument, we also made the point that the Governor has justified his moratorium as being necessary to protect members of the workforce from homelessness due to job loss and lack of income due to the COVID-19 pandemic. We also pointed out that assisted living facilities and skilled nursing facilities are focused on providing care, not evicting residents. But given cost increases due to COVID-19, assisted living providers and skilled nursing providers must be allowed flexibility to increase cash flow.

WHCA’s letter to RCS has been forwarded to the AGO. We stand by our legal analysis. While we await a response from the AGO, we ask our SNF and ALF members to continue to exercise caution with respect to transfer/discharge issues and “rent” increases. We don’t want to have the AGO coming after you while we await a response. If you do decide to move forward on either front, we would advise that you do so in consultation with a law firm with a firm understanding of senior housing/long term care. If the cost of addressing COVID-19 is causing you financial stress, you could consider a one-time charge for “COVID-19 related expenses” provided you give residents the requisite 60 day notice and do not apply the charge to Medicaid residents. Again, we recommend moving forward with the help of an experienced law firm. As more information becomes available, we will continue to keep you updated on this issue. Should you have questions, do not hesitate to email WHCA CEO Robin Dale.
CMS ISSUES GUIDANCE TO STATES REGARDING EXPANSION OF SURVEY ACTIVITIES
On June 1, 2020, CMS issued the QSO 20-31-All memorandum that provided survey re-prioritization guidance to transition states to more routine oversight and survey activities. Specifically, once a state has entered Phase 3 of the Nursing Homes Reopening guidance, found in QSO 20-30-NH memorandum, or earlier, at the state’s discretion, states were authorized to expand beyond the current survey prioritization (Immediate Jeopardy, Focused Infection Control, and Initial Certification surveys) to perform the following surveys (for all provider and supplier types):
  • Complaint investigations that are triaged as Non-Immediate Jeopardy-High
  • Revisit surveys of any facility with removed Immediate Jeopardy (but still out of compliance);
  • Special Focus Facility and Special Focus Facility Candidate recertification surveys; and
  • Nursing home surveys in facilities where it has been over 15 months since the last standard survey.

CMS is now revising this guidance in recently released QSO 20-35-All to authorize additional onsite surveys. In addition to the surveys listed above, states are to resume performing the following surveys as soon as they have the resources (e.g., staff and/or Personal Protective Equipment) to do so:
  • Onsite revisits as specified in the revisit policy in the State Operations Manual (SOM), Chapter 7, Section 7317.2, for surveys with end dates on, or after June 1, 2020;
  • Complaint investigations that are triaged as Non-Immediate Jeopardy Medium; and
  • Annual recertification surveys required to be conducted within 15 months from a provider’s last recertification survey.
 
CMS also provides additional guidance regarding enforcement activity. CMS intends to resolve those enforcement cases that were suspended and provides guidance to the states for closing them out, in addition to the imposition of CMPs. For additional information, see QSO 20-35-All. If you have questions, please email Elena Madrid.
DEAR ADMINISTRATOR LETTER SHARES INFORMATION ON EMERGENCY RULES
In a Dear Administrator Letter to skilled nursing providers dated August 17, 2020, the Department of Social and Health Services (DSHS) notifies providers that emergency rules (WSR 20-09-074) effective April 13, 2020, have been extended through December 9, 2020. The amended, suspended, or temporarily repealed rules are:
  • Transfer and discharge rules: Amendment of WAC 388-97-0120 suspends the requirement to provide a bed-hold notice to a resident who leaves the facility.
  • Resident assessment: Amendment of WAC 388-97-1000 removes the timeline requirements from the required resident assessment.
  • Care planning: Amendment of WAC 388-97-1020 removes the requirement to develop a care plan within seven days of completion of the resident assessment.
  • PASRR: WACs 388-97-1915 and 388-97-1975 were amended to permit the level I screening, and if needed, the level II evaluation to occur up to 30 days after admission.
  • Resident groups: WAC 388-97-0920 ensures residents can participate in resident and family groups. The WAC was temporarily repealed.

In addition, the letter indicates that Residential Care Services (RCS) filed a CR-101 on August 5, 2020, to begin permanent rule making on the WACs named in the emergency rule. The CR-101 document is available on the Aging and Long Term Support Administration’s (ALTSA) Information for Nursing Home Professionals page.
WHCA DESIGNS ONLINE TOOL TO HELP DETERMINE SAFE START PHASES FOR LTC FACILITIES
WHCA has designed an online tool to assist assisted living and skilled nursing providers in determining their initial Phase of the Safe Start Plan for Long Term Care and another tool to help facilities determine if they are able to advance to the next Phase of the Safe Start Plan for Long Term Care. These tools are designed to support providers; they are not to be considered a final authority or used as the only source of information for decision making. WHCA recommends using the tools and then communicating and collaborating with the local health jurisdiction to ensure the facility meets all the criteria of local health departments and county agencies. If you have questions or need additional information about the Safe Start Plan for Long Term Care, please reach out to your local health jurisdiction.
DURATION OF ISOLATION AND PRECAUTIONS FOR ADULTS WITH COVID-19
The Centers for Disease Control and Prevention (CDC) has provided insight regarding isolation and precautions for adults. At this time, we do not know if someone can be re-infected with COVID-19. Data to date shows that a person who has had and recovered from COVID-19 may have low levels of virus in their body for up to three months after diagnosis. This means that if the person who has recovered from COVID-19 is retested within three months of initial infection, they may continue to have a positive test result, even though they are not spreading COVID-19. Read more.
INTERIM GUIDANCE FOR RAPID ANTIGEN TESTING FOR SARS-CoV-2
The Centers for Disease Control and Prevention (CDC) has provided guidance for rapid antigen testing. They note antigen tests can be used in a variety of testing strategies to respond to the COVID-19 pandemic.
  • The two rapid antigen tests on the market (BD Veritor and Quidel Sofia2, which are being sent to all nursing homes by CMS) are currently intended for use in diagnostic testing of symptomatic patients within five days of symptom onset. 
  • Through this new guidance, CDC expands use of these rapid antigen tests to include use as a screening tool in congregate settings (such as a nursing home) for staff and residents.
  • All long term care facilities must defer to state or local guidance on their use. If no such guidance exists, you may consider following CDC guidance. 
  • Evaluating the test results must be done in context with the person’s symptoms and how likely COVID-19 is in the group of people getting the tests, which is usually similar to the community’s rate of COVID-19. 
  • Providers who are utilizing these antigen test devices must undergo proper training and be able to demonstrate competency and completion.

It’s very important that providers who are utilizing the point-of-care antigen test device understand this new CDC guidance. AHCA/NCAL has developed a more comprehensive summary here that members can utilize. 

The CDC interim guidance is intended for clinicians who order antigen tests, receive antigen test results, and/or perform point-of-care testing, as well as for laboratory professionals who perform antigen testing in a laboratory setting or at the point of care and report those results. Click here to access the CDC Interim Guidance. 
ARGENTUM PROVIDES INSIGHT ON EFFORTS FOR ADDITIONAL FUNDING IN ASSISTED LIVING
In a memo from Argentum CEO James Balda, an overview is provided of efforts being made to secure funding for both private pay assisted living providers and those who provide services to Medicaid clients. The memo outlines the work being done in hopes of securing additional funds beyond the first allotment from the Department of Health and Human Services (HHS) and gives insight on the current status of applications for the first tranche of funding made available to assisted living providers with Medicaid contracts. Read the memo here.
WA-PALTC TO OFFER WEBINAR TODAY AT 3 PM
The Washington Society of Post-Acute Long Term Care Medicine is hosting a webinar titled, AMDA COVID-19 Grand Rounds: Pearls from Your Colleagues today at 3 PM. Join Dr. Sabine Von-Preyss for a moderated discussion on current clinical topics and controversies in the treatment of COVID 19 in post-acute long term care. Register 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.