Nursing Homes Face Steep Hurdles to Reopening Under New CMS Recommendations

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With statistics indicating that deaths from COVID-19 among nursing home residents represent an alarming percentage of total COVID-19 deaths in a number of states, a cautious approach to reopening nursing homes is no doubt warranted; however, the Centers for Medicare and Medicaid Services (“CMS”), Quality, Safety & Oversight Group (“QSOG”) released guidance to state and local officials that has the potential to keep facilities in some areas closed to normal operations for months if not longer.

At its heart, the guidance establishes recommended phases for reopening nursing homes much the same as the country as a whole is subject to a phased reopening under the President’s Opening Up America Again guidelines.  The phases for nursing homes, however, will lag the phases applicable in the broader community.

Under the guidance, states can choose to require all facilities proceed through the phases together; to take a regional approach that allows facilities in a certain region to proceed through the phases together; or to allow each individual facility to enter a phase when the underlying criteria are met.

CMS specifies seven (7) distinct factors for states to consider in determining their approach:

  1. Case Status in the Community – This factor incorporates each state’s decision with respect to the guides they have established for reopening the broader community.
  2. Case Status in the Nursing Home(s) – This factor focuses on the absence of new facility-acquired COVID-19 cases among residents or staff.
  3. Adequate Staffing – This factor looks at the point at which there are no staffing shortages and the facility is not under a contingency staffing plan.
  4. Access to Adequate Testing – This factor looks at the capacity of facilities to test as follows:

    • – A baseline test for all residents followed by re-testing of all residents in the event an individual has symptoms consistent with COVID-19 or a staff member tests positive. More importantly, this factor calls for consideration of the capacity to test residents weekly until they all test negative;
    • – A baseline test for all staff, which includes volunteers and vendors who are in the facility on a weekly basis, with weekly re-testing;
    • – Written screening protocols for staff (before each shift), residents (daily), and anyone else before they enter the facility;
    • – An arrangement with laboratories to process the tests and provide results within certain sensitivity, specificity and time parameters; and
    • – A procedure for addressing residents or staff that decline testing or are unable to be tested.
  5. Universal Source Control for residents and visitors, including the use of cloth face coverings or facemasks, social distancing, and hand hygiene.
  6. Access to Adequate Personal Protective Equipment (“PPE”) for Staff – While PPE at the contingency capacity level established by Centers for Disease Control and Prevention (“CDC”) guidance will be permitted, crisis capacity strategies for the use of PPE will not be acceptable.
  7. Local Hospital Capacity – This factor considers the ability for local hospitals to accept transfers from nursing homes.

The guidance contains a recommended nursing home phased reopening that is cross-walked to the Opening Up America Again guidelines, but includes additional recommended criteria for moving through the phases.  Among the additional recommended criteria:

  • Nursing homes should not be eligible to commence the reopening process until all residents and staff have received a baseline test with appropriate actions taken by each home in response to the results.
  • State survey agencies should survey those homes that experienced a “significant COVID-19 outbreak” prior to reopening.
  • Each phase of reopening for nursing homes should lag behind each phase of reopening for the broader community by 14 days.

During Phase 1 of the nursing home reopening, the present status quo in terms of prohibitions, restrictions, screenings, universal source control, PPE use, and capacity for cohorting is maintained, but staff are tested weekly and, following the baseline testing, residents are tested upon identification of an individual with symptoms consistent with COVID-19 or if staff have tested positive for COVID-19.  Weekly testing continues until all residents test negative.  Surveys will be conducted in accordance with the March 23, 2020 QSOG Memorandum.

In order to proceed to Phase 2 of the nursing home reopening, homes must meet six (6) criteria:

  1. There has been no rebound in COVID-19 cases in the broader community after 14 days in Phase 1;
  2. There have been no new, nursing home-onset cases for 14 days;
  3. The home is not experiencing staff shortages;
  4. The home has adequate supplies of PPE and essential cleaning/disinfection supplies to care for residents;
  5. The home has adequate access to testing; and
  6. Referral hospitals have adequate bed capacity on wards and in intensive care.

During Phase 2, nursing homes would be permitted to allow entry of limited numbers of non-essential healthcare personnel/contractors with screening and other precautions as the homes deem necessary, and medically necessary trips outside the home would resume.  Staff would be required to wear all appropriate PPE.  All other requirements of Phase 1 would remain in place.  Surveys would be prioritized depending on the type of survey.  Specifically, complaint and facility-reported incidents involving reports or allegations of abuse or neglect, inadequate infection control, failure to notify residents/representatives/families of COVID-19 information, violations of transfer or discharge requirements, insufficient staffing or competency, and other quality of care matters will be prioritized.  Standard recertification surveys will be prioritized for facilities that have had a significant number of COVID-19 positive cases, Special Focus Facilities and candidates for designation as Special Focus Facilities.

Facilities would be permitted to move to Phase 3 if there has been no rebound in COVID-19 cases in the broader community after 14 days in Phase 2; there have been no new, nursing home-onset cases in the 28 days inclusive of Phases 1 and 2; and the remaining criteria outlined above continue to be met.

During Phase 3, visitation and entry of non-essential health care personnel/contractors would be permitted with screening and other precautions.  Group activities and outings for asymptomatic or COVID-19 negative residents also would be permitted with precautions such as face coverings, social distancing and hand hygiene.  All other requirements of Phase 2 would remain in place.  Normal survey operations would resume with prioritization as outlined in Phase 2.

The reopening guidance currently includes a number of open issues to be addressed:

  • If a state opts to take the most conservative approach and have all nursing homes in the state proceed through the recommended phases together—or even if the state opts to take the regional approach to reopening–it is certainly possible that the criteria for entering Phase 1 may never be achieved given that even prior to the novel coronavirus pandemic, some facilities experienced understaffing at various times due to high turnover. Further, without federal or state staffing ratios, it will be nearly impossible to quantify what exactly constitutes “adequate” staffing.  Indeed, even the language CMS uses in its recommended phases implies a facility-by-facility approach.
  • If a resident or staff member tests positive for COVID-19 during any phase of reopening, a facility will be required to return to the beginning. As a result, surveyors will be challenged to determine the extent of activities that can be undertaken with respect to individual facilities that may be progressing through the phases at different times.
  • Access to testing has been problematic for facilities, and although nursing homes are being prioritized for testing, as demand for testing in the broader community increases, nursing homes will continue to have difficulty obtaining the necessary test kits. Similarly, accessing adequate supplies of PPE will continue to be problematic for nursing homes, further hampering their ability to progress through the phases of reopening.
  • Once a facility has achieved the Phase 3 criteria, the recommendations are silent as to how long the facility must continue to implement such measures as screenings for residents, staff and anyone else entering the facility, social distancing, universal source control, weekly testing of staff and symptomatic testing of residents, and dedicated space in the facility for cohorting.

One thing is certain, however.  Regardless of how individual states interpret and implement the CMS recommendations, the “new normal” is likely here to stay for nursing homes well into the future.

[1] Karen Yourish, K.K. Rebecca Lai, Danielle Ivory and Mitch Smith, One-Third of All U.S. Coronavirus Deaths Are Nursing Home Residents or Workers, N.Y. TIMES, updated May 11, 2020, available at https://www.nytimes.com/interactive/2020/05/09/us/coronavirus-cases-nursing-homes-us.html.  Nursing home deaths in the following states represent greater than 50% of total deaths in the state:  MN (80%), WV (80%), RI (73%), DE (61%), PA (66%), MA (59%), VA (58%), CO (57%), KY (57%), NC (57%), CT (55%), OR (54%), VT (54%), and NJ (52%).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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