Visitation, residents leaving and returning, telephone surveys, hospitalized patients being discharged to a nursing home and other issues have been challenging for skilled nursing facilities (“SNFs”) and nursing facilities (“NFs”) (in this alert, SNFs and NFs are collectively Long‑Term Care Facilities “LTC Facilities”) as they navigate the evolving government guidance.
On April 24, 2020, the Quality, Safety & Oversight Group at the Centers for Medicare & Medicaid Services (“CMS”) issued a memorandum entitled “Nursing Home Five Star Quality Rating System updates, Nursing Home Staff Counts, and Frequently Asked Questions” (“QSO Memo”) that outlines data reporting issues and a set of Q&As on several topics, including:
- Individuals entering and leaving nursing homes, such as visitation;
- Use of civil money penalty (“CMP”) funds for communicative devices;
- Residents leaving for appointments;
- Surveys and the Infection Control Self-Assessment; and
- Resident cohorting, separation and admission, including admitting residents discharged from hospitals.
1) Suspension of normal survey activity will continue.
The QSO Memo clarifies that during the COVID-19 pandemic, CMS is prioritizing the types of surveys that state and federal surveyors will conduct. Specifically, CMS is focusing its oversight efforts to protect LTC Facility residents from immediate jeopardy events. CMS confirmed that this survey prioritization, including the suspension of standard surveys, will continue until CMS provides notification of any changes or the public health emergency ends.
2) Inflection control self-assessments and surveyor phone “surveys.”
A recent CMS memo included a new focused infection control survey process that LTC Facilities can use as a self-assessment form. Currently, surveyors may call LTC Facilities to remind them to conduct the self-assessment or ask for their results. CMS clarified that, while these results are not entered into the CMS system as an official survey, it urges LTC Facilities to conduct the self-assessment, and reminds LTC Facilities that they are responsible for complying with essential health and safety standards to keep residents safe.
3) Nursing Home Compare website and 5-Star Quality Rating System.
Since many LTC Facilities that would normally be inspected, will not be surveyed, thereby over-weighting and impacting the ratings of those LTC Facilities that are inspected. CMS will temporarily maintain and hold constant the health inspection domain of the rating system. Specifically, results of health inspections conducted on or after March 4, 2020, will be posted publicly, but will not be used to calculate a LTC Facility’s health inspection star ratings.
4) So visitation should be allowed in “certain compassionate care situations, such as an end-of-life situation.” But, what is an example of a “compassionate care situation”?
CMS offered an example of a resident who is receiving hospice care and the resident’s health status is sharply declining, or when a resident is not enrolled in hospice, but the resident’s health status has sharply declined. In these circumstances, it is necessary to ensure precautions are taken to conduct visits as safely as possible, including following practices for hand hygiene and use of personal protective equipment.
5) Get CMP money for iPads and tablets.
CMP funds may be requested for programs that are used to purchase communicative devices, such as tablets or web-cams, to increase the ability for LTC Facilities to help residents stay connected with their loved ones. To ensure a balanced distribution of devices, applications to use CMP funds for this purpose are limited to purchasing one device per seven to ten residents with a maximum of $3,000 per LTC Facility.
6) Can residents leave the nursing home for an appointment or outside activity?
LTC Facilities should consider the necessity of the appointment to the resident’s health, and whether it is critical for the resident to attend the appointment. If the appointment is not critical, it is recommended that the appointment be deferred to a later date or be accomplished virtually via telemedicine, if the resident agrees. Also, the LTC Facility should monitor the resident upon return for fever and signs and symptoms of respiratory infection for fourteen days after the outside appointment (preferably in a space dedicated for observation of asymptomatic residents).
7) What if a resident wants to leave the LTC Facility against medical advice?
CMS clarified that it is unlawful for a LTC Facility to detain and stop a resident from leaving the LTC Facility if the resident wishes to leave. Due to the risks of transmission of COVID‑19, LTC Facilities should strongly discourage residents from leaving the LTC Facility and follow the guidelines released by local or state jurisdictions.
If a resident insists on leaving against medical advice, the LTC Facility must allow them to leave. The LTC Facility should encourage them to wear a facemask while out in the community, discuss the importance of handwashing, offer hand sanitizer if available and document in the resident’s medical record how the LTC Facility discouraged leaving and explained the risks of leaving to the resident and/or resident representative.
For a resident who leaves and intends to return, the LTC Facility should monitor the resident upon return for fever and signs and symptoms of respiratory infection for fourteen days (preferably in a space dedicated for observation of asymptomatic residents), and implement the necessary transmission-based precautions if the resident develops fever or signs and symptoms of respiratory infection.
8) Cohorting and dedicated spaces.
When planning for cohorting, CMS directed that LTC Facilities should first dedicate space to care for residents with confirmed COVID-19, such as a dedicated floor, unit, wing or other facility (as explained below). In addition, LTC Facilities should create a plan, which could include placement in separate observation areas or in single rooms, for: (1) new admissions and readmissions whose COVID-19 status is unknown; and (2) residents who develop symptoms prior to being diagnosed with COVID-19.
9) Communal dining – Let them eat. Together, but apart.
CMS restated that residents are not forced to eat in their rooms. Residents may still eat in dining rooms, but, nursing homes should adhere to social distancing, such as being seated at separate tables at least six feet apart. Eating in dining areas with appropriate social distancing only applies to residents without signs or symptoms of a respiratory infection, and without a confirmed diagnosis of COVID-19.
10) Who are non-essential health care personnel?
LTC Facilities, in consultation with patients, residents, family members and the other health care provider, should evaluate their residents’ needs, the services necessary to meet those needs, and the individuals who provide those services. On a case‑by‑case basis, LTC Facilities should base their decision to permit an individual to enter by determining if the services they provide are essential to continue, need to be discontinued or postponed or can be done remotely.
For example, if building or equipment repairs are needed, and the repair is critical for residents’ health and safety, LTC Facilities should seek a means to accomplish the repair while taking the necessary precautions to prevent the spread of COVID-19.
CMS and the Three Keys to All LTC Facility Decisions
In addressing questions covering several topics, CMS cautioned that its answers, as well as the guidance and recommendations, cannot address every scenario that may occur across the country.
CMS reminded LTC Facilities that it is incumbent upon LTC Facilities to comply with Medicare and Medicaid’s essential health and safety standards to keep residents safe. It is also each LTC Facility’s responsibility to work with individual patients and residents, along with their families and other caregivers and health care providers to support decisions that are best for that patient or resident. In the end, CMS tells each LTC Facility that it should use the information in the QSO Memo and then make decisions based on:
- The needs of each resident;
- The actions needed to prevent the transmission of the COVID-19; and
- The circumstances of each situation.
If you have questions or would like additional information about this topic, please contact:
- Sean Fahey at (317) 977-1472 or sfahey@wp.hallrender.com;
- Todd Selby at (317) 977-1440 or tselby@wp.hallrender.com;
- Brian Jent at (317) 977-1402 or bjent@wp.hallrender.com; or
- Your regular Hall Render attorney.
More information about Hall Render’s Post-Acute and Long-Term Care services can be found here.
Hall Render’s attorneys and professionals continue to maintain the most up-to-date information and resources at our COVID-19 Resource page, through our 24/7 COVID‑19 Hotline at (317) 429-3900 or by contacting your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
