So Who Exactly Is Making Decisions Concerning the Elder Care Industry?

Fennemore Craig Client Alert

So Who Exactly Is Making Decisions Concerning the Elder Care Industry?

As the COVID-19 pandemic continues, both federal and state authorities are taking steps to review best practices and support infection prevention in elder care homes. Both initiatives are aimed at increasing testing and support for the elder care industry which has been hit particularly hard by the virus.

On July 22, the Centers for Medicare and Medicaid Services (“CMS”) announced several measures intended to provide resources for the industry. Specifically:

  • The U.S. Department of Health and Human Services (“HHS”) will dedicate $5 billion dollars of CARES Act funds to help Medicare-certified long-term care facilities, such as skilled nursing facilities and nursing homes1, and veterans’ homes to hire staff, create and implement infection control programs, increase testing and obtain technology to assist residents while visitation is restricted. In order to qualify for this funding, homes must participate in COVID-19 training programs. CMS and the CDC are creating self-paced on-line training programs focusing on infection control and best practices.
  • HHS also has a separate initiative to deploy rapid point-of-care diagnostic testing to nursing home facilities. This is intended to help facilities meet the new CMS requirement that all nursing homes in states with a 5% positivity rate or greater test all nursing home staff each week.
  • The Trump Administration has also created a Task Force Strike Team to provide technical assistance and education in facilities experiencing an outbreak of COVID-19.The team will be deployed to facilities that are selected based on infection data reported to CMS and the CDC.
  • Finally, the CDC and CMS will be using the weekly data they collect on COVID-19 infections in facilities to create reports identifying facilities with high infection rates. This information will be transmitted to the White House and then disseminated as part of a weekly report to state governors. This is intended to allow individual states to target resources on the areas where it is needed most.
  • More information on these initiatives is available here.
  • The CDC-CMS on-line training module is available here. While this training targets nursing homes, it has valuable information on infection control and other topics that may be of use in assisted living facilities and across other levels of the elder care industry.
  • Finally, HHS’s Office of the Inspector General is looking into COVID-19 related fraud and abuse in the elderly care setting. It has produced a new poster asking anyone who sees fraud or abuse to report it and provides mechanisms for doing so. Of note, the poster indicates that “unsafe practices resulting in COVID-19 exposure” should be reported, among other things. This indicates that HHS is considering enforcement actions concerning unsafe COVID-19 practices. The poster is available here.

Elder care facilities would be wise to follow the precautions set out by federal authorities. According to an August 14, 2020 CMS press release, CMS has imposed over $15 million in civil monetary penalties on over 3,400 Medicare and Medicaid-certified nursing homes that failed to follow infection control guidance and/or failed to report COVID-19 data to the CDC-CMS database. CMS is also expanding the reach of its survey protocol to cover infection control in an effort to force nationwide compliance. Per the press release, “Nursing homes now face fines up to $5,000 when cited for lower level infection control deficiencies that were identified on a previous survey and up to $20,000 if cited for infection control findings twice or more in the last two years.” The full press release is available here.

On July 28, 2020, Arizona Governor Doug Ducey announced the formation of the Task Force on Long Term Care (the “Task Force”). The Task Force is made up of various facility operators, family members, elder-care advocates and government officials. Its mission is to make recommendations as to how and when in-person visitation may resume and how to best keep families informed about their loved ones. This is a supplement to Governor Ducey’s June 16, 2020 announcement of a grant program to provide technology for elder care facilities where visitation is restricted.
The Task Force first met on August 7, 2020.  The meeting gave each member the opportunity to express their concerns and objectives. Almost every member mentioned the need for increased testing, more PPE and better staffing, arguing that visitation cannot restart until these goals are met. Several members also observed that there is likely no “one-size-fits-all” solution as there are so many different levels of care and different environments across the state.

The Task Force met again on August 11, 2020, to review CMS recommendations on resuming visitation and what other states have done in terms of reopening visitation. Several states only allow visitation in an outdoor setting while others require a designated space for visitation. All of the states that allow visitation require visitors to submit to temperature checks, wear masks and take other protective measures. The members discussed how the various methods of visitation might work in Arizona and reviewed letters from impacted constituents.

The Task Force has only started to collect information. It meets weekly, on Tuesdays at 1 PM, via Zoom. The public may attend and provide oral or written comment. More information on the Task Force meeting schedule, as well as task force agendas and meeting minutes, is available here.

Visitation continues to be a hot topic in the elder care community. If you have questions as to how to ensure senior living visitation is appropriately tailored to avoid risk to residents and staff in your facility, consider contacting a Fennemore Craig attorney.

[1] CMS only certifies nursing homes or skilled nursing facilities; it does not certify assisted living facilities. Therefore, these rules and initiatives apply to skilled nursing facilities and nursing homes, not assisted living facilities or facilities that offer less intensive levels of care.

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