September 3, 2020
Earlier today we were able to meet with a representative from the Attorney General’s Office to discuss whether assisted living facilities and skilled nursing facilities could raise their rates without running afoul of the Governor’s Proclamation 20-19.3. The AGO took a very hard line, stating that rent increases and notice of rent increases would run afoul of the Proclamation and could result in prosecution and/or enforcement. The AGO is taking the position that the Proclamation’s reference to the Washington Law Against Discrimination (RCW 49.60) allows the broadest possible interpretation of what constitutes a “dwelling” and, therefore, the Proclamation applies to assisted living and skilled nursing. The AGO maintains that one of the stated goals of the Proclamation is to insure stability in housing. Anything that could be conceived as upending this stability potentially violates the Proclamation. The AGO also took the position that because the Proclamation prohibits “threats” of rent increases, any issuance of a notice of rent increase cannot be made until after the Proclamation expires (currently set expiration on October 15, 2020). However, the AGO did concede that increases in individual care needs resulting in increased costs could be passed on to residents and did not violate the Proclamation. Finally, the AGO balked at the issuance of one-time COVID-19 related fees, but did not specifically state that they were disallowed. WHCA continues to take issue with the AGO’s position. We have scheduled a meeting with the Governor’s office, reached out to important legislators, and we are consulting with our law firm. Until this situation is resolved, providers should proceed with caution. Increases that could be considered covering “room and board” that are broad based and uniformly applied to residents will likely be considered a “rent increase.” We urge caution. If you have questions, do not hesitate to email Robin Dale. We will continue to keep you informed.
In addition to the requirements set forth by CMS for routine testing of all nursing home staff per CMS QSO Memo 20-38, the skilled nursing facility must also comply with the following:

Testing of Staff and Residents with COVID-19 Symptoms or Signs 
1. Staff with symptoms or signs of COVID-19 must be tested and are expected to be restricted from the facility pending the results of COVID-19 testing.
2. Residents who have signs or symptoms of COVID-19 must be tested. While test results are pending, residents with signs or symptoms should be placed on transmission-based precautions (TBP) in accordance with CDC guidance. Once test results are obtained, the facility must take the appropriate actions based on the results.

Testing of Staff and Residents in Response to an Outbreak
For the purposes of the CMS requirements set forth in F886, an outbreak is defined as a new COVID-19 infection in any healthcare personnel (HCP) or any nursing home-onset COVID-19 infection in a resident. A resident who is admitted to the facility with COVID-19 does not constitute a facility outbreak.

Upon identification of a single new case of COVID-19 infection in any staff or residents, all staff and residents should be tested, and all staff and residents that tested negative should be retested every 3 days to 7 days until testing identifies no new cases of COVID-19 infection among staff or residents for a period of at least 14 days since the most recent positive result.

For individuals who test positive for COVID-19, repeat testing is not recommended. A symptom-based strategy is intended to replace the need for repeated testing.

WHCA has heard feedback that local health jurisdictions have informed nursing homes that they do not agree with the CMS testing requirements and that the nursing facility does not need to comply with the CMS testing regulations. While the LHJ does have authority over outbreaks and testing, they do not have the authority to waive the Requirements of Participation, CMS requirements for a certified facility. Therefore, if the LHJ issues an order that is stricter or more comprehensive than the CMS requirement, the facility must comply. However, the facility cannot meet the CMS requirements with a standard/testing guidance that is less than the CMS requirement. If you have questions regarding the CMS Testing Requirements, please email Elena Madrid or call her at (800) 562-6170, extension 105.
A new flow chart available from the Centers for Disease Control and Prevention provides insight on antigen testing in nursing homes. The guidance is created to assist providers in determining when to test or retest based on an algorithm. The algorithm should be used as a guide, but clinical decisions may deviate from the guide. Contextual factors include community incidence, characteristics of different antigen testing platforms, as well as availability and turnaround times of testing results.
Yesterday the US Department of Health and Human Services (HHS) announced that private-pay assisted living/memory care providers will be eligible to apply for CARES Act Provider Relief Funds. ALFs that may have been previously ineligible to apply for Phase 2 General Distribution funding may now apply for relief. ALF Medicaid providers that previously were eligible for relief and received a payment may also apply, and may receive a payment if their previous relief was less than two percent of 2019 revenue.  HHS is encouraging ALFs to apply for funding to help minimize the financial hardships of these increased expenses caused by COVID-19.
Like other providers applying for Phase 2 funding, eligible assisted living communities will receive two percent of their 2019 revenue from patient care. ALF providers will have until September 13, 2020, to apply. This deadline will not be extended. Please visit the Provider Relief Fund web page which includes previously-recorded Phase 2 application webinars, frequently asked questions, and other information on how to apply through the recently-simplified application process. AHCA/NCAL and Argentum are both pursuing conversations with HHS to provide specific details to help with your potential applications and the possibility of a deadline extension. 
The Centers for Disease Control and Prevention (CDC) has updated the National Healthcare Safety Network (NHSN) Resident Impact and Facility Capacity pathway to include four new questions relating to the use of Point of Care testing. These include:
  • Does the long term care facility have an in-house point-of-care test machine (capacity to perform COVID-19 testing within your facility)?
  • Since the last date of data entry in the Module, how many COVID-19 point-of-care tests has the facility performed on residents?
  • Since the last date of entry into the Module, how many COVID-19 point-of-care tests has the facility performed on staff and/or facility personnel?
  • Based on this week’s inventory, do you have enough supplies to test all staff and/or facility personnel for COVID-19 using the point-of-care test machine?

The CDC also added important information, including:
  • Clarification on CONFIRMED Notes section to address differences in testing devices and clarity of positive COVID-19 test results; and
  • How to recognize and report reinfections to align with patients who have persistent or recurring positive test results. 
A letter from the U.S. Department of Health and Human Services (HHS) shares information on the announcement that assisted living facilities may now apply for funding under the Provider Relief Fund Phase 2 General Distribution allocation. “HHS is committed to ensuring America’s healthcare providers have what they need to protect their patients and continue providing care through the pandemic,” said HHS Secretary Alex Azar.

Through its ongoing efforts to support providers in need, HHS is inviting assisted living facilities that may have been previously ineligible to apply for Phase 2 General Distribution funding. HHS is encouraging assisted living facilities to apply for funding to help minimize the financial hardships of these increased expenses caused by COVID-19.

Like other providers applying for Phase 2 funding, eligible assisted living facilities will receive two percent of their annual revenue from patient care. Helpful information for these providers can be found at the Provider Relief Fund website. The application deadlines is September 13, 2020.
The Association for Professionals in Infection Control and Epidemiology (APIC) is committed to representing the needs of Infection Preventionists. To address changing needs, the COVID-19 Task Force is conducting a series of focus groups to discuss how IPs are managing the pandemic:
  • What are the challenges at your facility?
  • What challenges are you personally facing?
  • How are you managing the changing guidelines from the federal government?
  • How can APIC support you?

You are invited to participate in one of six groups scheduled between September 15 and 25. The work of the focus groups will drive innovation and change to help all IPs and healthcare providers respond to the COVID-19 pandemic and other infection control challenges.
  • Tuesday, September 15, 11 AM to 1:30 PM | IPs in Outpatient Practice Setting
  • Thursday, September 17, 11 AM to 1:30 PM | IPs in Long Term Care
  • Friday, September 18, 8 – 10:30 AM | IPs in Acute Care
  • Tuesday, September 22, 11 AM – 1:30 PM | IPs in Critical Access Hospitals/Rural Settings
  • Thursday, September 24, 11 AM – 1:30 PM | New IPs (less than three years of experience, do not have a CIC
  • Friday, September 25, 8 – 10:30 AM | Experienced IPs (more than 10 years of experience, active CIC)

The focus groups will be conducted via Zoom, so you will need a computer to participant. Any participants who complete the discussion group/study will receive a $25 Amazon gift card. Click here to RSVP for a session. All participants selected will be notified by September 10.
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.