Wednesday, May 20, 2020

Reimbursement and Legal Issues Related to COVID-19 Testing in Long Term Care

Reimbursement Issues 

Medicare Coverage of Testing: Medicare fee for service and Medicare Advantage plans will cover the cost of COVID-19 diagnostic (PCR) tests. Tests range in cost from $115 to $500.  Medicare Part B will only reimburse approximate $100 for the PCR and $35 for other tests. However, not all labs will bill Medicare directly. AHCA/NCAL strongly recommends that, wherever possible, providers use labs that will bill Medicare, as providers may not be able to bill for these services.

CARES Act Coverage: The CARES Act requires health plans to cover the cost of COVID-19 testing for beneficiaries at no cost to the beneficiary. CMS is requiring Medicare Advantage Plans to cover the costs of testing for MA plan beneficiaries. Typically, however, when a test is required by an employer for employment, then the employer is responsible for the cost of the test. If the state is mandating testing the employer may not be held accountable for the cost of the test but this has not yet been validated.

CARES Act Grant Funds: The CARES Act Grant Funds can be used to cover costs for resident tests that are not otherwise reimbursable. This does NOT include testing for residents under a Part A stay where it is included in consolidated billing. 

Legal Issues 

Resident Refusals: Residents that refuse to be tested for COVID-19 cannot be discharged involuntarily, unless the facility is otherwise incapable of caring for residents with a confirmed diagnosis of COVID-19. 

Employee Refusals: Employers can make COVID-19 testing a condition of employment and terminate or not hire a person who refuses to obtain a COVID-19 test. 
For more information, please review the reimbursement and legal section of AHCA/NCAL’s Preparing for Widespread Testing in LTC Guidance

CMS Releases Additional Blanket Waivers

On May 11th, CMS issued additional waivers for the healthcare community that provide the flexibilities needed to take care of patients during the COVID-19 public health emergency (PHE). This is in addition to the waivers that were released on April 30. The following blanket waivers are in effect, with a retroactive effective date of March 1, 2020 through the end of the emergency declaration.

Paid Feeding Assistants 

CMS is modifying the minimum timeframe requirements for feeding assistant training to allow the training to be a minimum of 1 hour in length. CMS is not waiving any other requirements related to paid feeding assistants or the required training content which contains infection control training and other elements. Additionally, CMS is also not waiving or modifying the requirements which requires that a feeding assistant must work under the supervision of a registered nurse (RN) or licensed practical nurse (LPN).

With this waiver, AHCA/NCAL’s Temporary Feeding Assistant training is allowable. However, additional state requirements may need to be waived to permit individuals completing this program to assist with care in your location. We encourage you to contact your state survey agencies and state occupational licensing agencies, where applicable.

Specific Life Safety Code (LSC) for Multiple Providers

CMS is waiving and modifying waivers under for ICF/IIDs and SNF/NFs.
Specifically, CMS is modifying these requirements as follows:

Alcohol-based Hand-Rub (ABHR) Dispensers: CMS is waiving the requirements for the placement of ABHR dispensers for use by staff and others due to the need for the increased use of ABHR. However, ABHRs contain ethyl alcohol, which is considered a flammable liquid, and there are restrictions on the storage and location of the containers. This includes restricting access by certain patient/resident populations to prevent accidental ingestion.

Due to the increased fire risk for bulk containers (over five gallons) those will still need to be stored in a protected hazardous materials area. In addition, facilities should continue to protect ABHR dispensers against inappropriate use.

Fire Drills: Due to the inadvisability of quarterly fire drills that move and bring staff together, CMS will instead permit a documented orientation training program related to the current fire plan, which considers current facility conditions. The training should instruct employees, including existing, new or temporary employees, on their current duties, life safety procedures and the fire protection devices in their assigned area.

Temporary Construction: CMS is waiving requirements that would otherwise not permit temporary walls and barriers between patients.

Hospital Swing Bed Waiver

The new blanket waivers include a waiver expanding the ability of hospitals to offer long-term care services to patients who do not require acute care but meet the SNF level of care criteria at 42 CFR 409.31. CMS is waiving the eligibility requirements for hospital providers of long-term care services (swing beds) at 42 CFR 482.58(a)(1)-(4) to allow hospitals to establish SNF swing beds payable under the SNF prospective payment system (PPS). This waiver provides additional options for hospitals with patients who no longer require acute care but are unable to find placement in a SNF.

The waiver includes an array of limitations on hospital use of the waiver including applying to the MACs for additional swing beds and attesting:

  1. They have made a good faith effort to exhaust all other options;
  2. There are no skilled nursing facilities within the hospital’s catchment area that under normal circumstances would have accepted SNF transfers, but are currently not willing to accept or able to take patients because of the COVID-19 PHE;
  3. The hospital meets all waiver eligibility requirements; and 
  4. They have a plan to discharge patients as soon as practicable, when a SNF bed becomes available, or when the PHE ends, whichever is earlier.

AHCA/NCAL members concerned about inappropriate hospital use of the waiver should contact their MACs. Find the list of MACs and contact information here.

Guidance on Documentation for Use of COVID-19 SNF Reimbursement Waivers

The CMS waivers also consider requirements that would normally be in place
for providers to receive reimbursement under Medicare or Medicaid. Most
significant were the waiver of the 3-day prior inpatient hospital stay and the 60-
day break in spell-of-illness requirements for SNF Part A benefit eligibility.

Documentation will be critical to demonstrate an organization’s rationale for the
use of the waivers. In a previous update, AHCA/NCAL offered visual flowchart
guidance to help with coverage determinations of these 1135 waivers.
AHCA/NCAL has provided key documentation guidelines for supporting the
employment of these waivers as it is foreseeable that after the emergency
declaration is rescinded, CMS either through the Officer of the Inspector
General (OIG) or through contractors will look to ensure that Medicare dollars
were spent appropriately without fraud, waste and abuse.

CMS Issues Nursing Homes Best Practices Toolkit to Combat COVID-19

CMS released a new toolkit intended to serve as a catalog of resources
dedicated to addressing the specific challenges facing nursing homes as they
combat COVID-19.

CMS says the toolkit provides resources and direction for quality improvement
assistance and can help in the creation and implementation of strategies and
interventions intended to manage and prevent the spread of COVID-19 within
nursing homes. The toolkit outlines best practices for a variety of subjects
ranging from infection control to workforce and staffing. It also provides contact
information for organizations who stand ready to assist with the unique
challenges posed by caring for individuals in long-term care settings.

CMS Issues Nursing Home Reopening Recommendations for State and Local Officials

This week, CMS provided recommendations on a nursing home phased reopening for states. The recommendations cover the following items:
  • Recommendations for testing residents and staff
  • Dedicated space for cohorting residents with COVID-19
  • Criteria for relaxing certain restrictions and mitigating the risk of
  • resurgence
  • Visitation and service considerations
  • Restoration of survey activities
The guidance encourages state leaders to collaborate with the state survey agency and local health departments to decide how these criteria should be implemented. Given the critical importance in limiting COVID-19 exposure in nursing homes, CMS recommends that decisions on relaxing restrictions be made with careful review of the following facility-level, community, and state factors:
  • Baseline test of all residents, weekly testing of all staff, practicing social
  • distancing, and universal source control for residents and visitors (e.g.,
  • face coverings)
  • Status of COVID-19 cases in the local community
  • Status of COVID-19 cases in nursing homes
  • Adequate staffing
  • Access to adequate personal protective equipment (PPE)
  • Local hospital capacity
AHCA/NCAL’s detailed analysis is forthcoming.

Read the press release, guidance and FAQs from CMS.

Economic Impact Payments for Social Security and SSI Beneficiaries with Representative Payees

Dana Ritchie

The Social Security Administration recently issued an update that beneficiaries who have their regular monthly payments managed for them by another person, called a representative payee, will begin receiving their economic impact payments (EIPs) from the IRS in late May.

It is important to note that under Medicaid rules, a stimulus payment is not counted as income. Therefore, receiving a stimulus payment does not change a resident’s monthly payment (often called a ‘patient pay amount’ or ‘share of cost’). The resident pays the same monthly amount to the nursing facility and keeps the stimulus payment for their own use. In addition, the stimulus payment does not count as a Medicaid resource for 12 months. In other words, for the first year, the payment cannot cause you to have ‘too much’ savings.

More details on these payments can be found in this SSA press release. In addition, you might find of assistance two FAQs from the National Center on Law & Elder Rights entitled, “Nursing Home Residents, Medicaid, and Stimulus Checks: What You Need to Know” and “Medicaid Home and Community-Based Services and Stimulus Checks: What You Need to Know.” Questions on this issue can be directed to

H.R. 6800, The HEROES Act Passes the House 

On Friday, May 15th, the United States House of Representatives passed H.R. 6800, The HEROES Act, another piece of legislation aimed at addressing the effects of the COVID-19 pandemic. This bill was passed largely along party lines with most Democrats voting for it and Republicans voting against the package. Leader McConnell has stated that he will not bring up this legislation in the Senate. The Senate is likely to craft its own bill. We will continue to work with both chambers and advocate for our priorities during this challenging time.

Of particular note to our sector, below are the provisions found in the bill: 
  • Ensures an additional $100 billion for the provider fund. 
  • Improves the Accelerated and Advance Payment Program that has been critical to keeping providers afloat including lowering interest rates for repayment.
  • Allows facilities with the most losses from this pandemic to be compensated fairly. 
  • Increases the Federal Matching Assistance Percentage (FMAP) by 14 percentage points through June 30, 2021. At a time of financial instability, this would ensure State governments have the resources they need to continue providing critical services.
  • Delays the implementation of the Medicaid Financial Accountability Rule (MFAR) until the end of the emergency period.
  • Requires Medicare’s Quality Improvement Organizations to provide infection control support to nursing homes struggling with COVID-19 outbreaks.
  • Ensures skilled nursing facilities have a means for residents to conduct “televisitation” with loved ones while in-person visits are not possible during the COVID-19 emergency. 
  • Requires public reporting of positive cases in nursing facilities. 
  • Provides $150 million to states to create strike teams if three or more residents or staff are diagnosed with COVID-19 in a 72-hour time period. 
  • Provides a 20 percent per diem increase for facilities with COVID-19 only units.
  • Provides a $13.00 increase in wages for essential workers up to $10,000. 
As the Senate begins to consider this bill, we will keep you updated as to what
the final outcome will be.

AHCA/NCAL Offers New Online Training for Improving Functional Outcomes

Dave Kyllo 

AHCA/NCAL has released a new online training titled Functional Outcomes Improvement and designed for all staff who have a role in improving patient functional outcomes quality and services, including nurses, CNAs, therapists, activities staff and recreational therapists.

This course advances knowledge and skills about functional improvement through an array of learning tools and resources designed to meet the educational needs of various staff and departments. This includes learning about daily care best practices and real-world tools that improve functional outcomes.

The Medicare Payment Advisory Commission (MedPAC), the IMPACT Act, and CMS called for the development of functional improvement measures based on the self-care and mobility sections of the Continuity Assessment Record and Evaluation (CARE) tool.

The program is flexible and can be completed in one sitting or one module at a time. The training is delivered in five modules, including:
  • Module 1 – Explores the connection between functional outcomes and person-centered care, and how utilization of evidence-based pragmatic programs leads toward continuous improvement.
  • Module 2 – Reviews the regulations related to functional outcomes including the CMS Requirements of Participation and how functional improvement impacts reimbursement.
  • Module 3 – Covers best care coordination practices for short- and long-stay patients, including coordinating with therapy processes, and provides an overview of effective restorative nursing programs.
  • Module 4 – Closely examines care practice application and what individuals can do to increase function, team engagement and concludes with a discussion of various quality initiatives that lead to better outcomes.
  • Module 5 – Reviews the tools and resources needed to further functional outcomes improvement approaches to person-centered care.     
The cost for the training program is $199 for AHCA/NCAL members and $650 for non-members and offers 6.5 NAB CE credits for administrators and 6.5 contact hours for nurses through the Iowa Board of Nursing. There is a quiz at the end of four of the five modules and participants must pass a final exam with a score of 80 or higher to receive credit. Click here to register or go to

Members will need to login with their AHCA/NCAL usernames and passwords to register. For assistance obtaining AHCA/NCAL usernames and passwords, members should e-mail with their name and facility contact information.

NCAL Awards Program: 2020 Nominations are Open!

Know an outstanding assisted living nurse or executive director? Last year, did your community create the best National Assisted Living Week® programming based on the "A Spark of Creativity" theme? Or maybe there is an unlicensed caregiver or someone in the dietary, housekeeping, or maintenance departments who goes above and beyond the call of duty? If you answered yes, then check out NCAL’s 2020 Awards Program. This program gives awards in four categories:

  • Administrator of the Year
  • Nurse of the Year
  • Noble Caregiver in Assisted Living
  • National Assisted Living Week Programming
Before submitting your nomination, make sure you have all the necessary components. To nominate, the following items are required:
  • Administrator and Nurse of the Year nominations: 500-word essay and candidate’s resume
  • Noble Caregiver in Assisted Living nominations: 500-word essay
  • National Assisted Living Week Programming nominations: 500-word essay, activity calendar from the week, and pictures from the week.

For more information and to submit a nomination, please visit Completed nominations must be submitted no later than Friday, July 10, 2020.

Help recognize those that demonstrate outstanding service!

Jan Thayer Pioneer Award Nominations Open!

Nominations are now open for NCAL’s 2020 Jan Thayer Pioneer Award. ​The award recognizes an individual who has moved the senior care profession forward, positively affecting the lives of those served and those who serve. Recipients must demonstrate dedication, leadership and considerable contributions to the senior care profession.

Nominations must be submitted online and include a 500-word or less essay, along with a copy of the candidate’s resume. Nominators must be members of AHCA/NCAL; however, candidates are not required to be members. All nominations must be received by July 10, 2020. The recipient is selected by the NCAL Executive Committee.

The Jan Thayer Pioneer Award is posthumously named after the first Board Chair of NCAL Jan Thayer. A provider for more than 25 years, Thayer owned and operated Riverside Lodge in Grand Island, Nebraska. She also founded and headed up the Excel Development Group, which owned and managed retirement communities throughout the Midwest and employed hundreds.

This is the sixth year NCAL is honoring an individual in the assisted living profession. The award was bestowed to Elizabeth Blankenship last year.