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CMS Guidance for Nursing Homes During the COVID-19 Virus

CMS Guidance for Nursing Homes During the COVID-19 Virus

The Centers for Medicare and Medicaid Services (CMS) has recently issued some rules and guidelines for nursing homes to enact during the Covid-19 virus. Below, you will find a guide to these new rules and guidelines.

Social Distancing

During this time, CMS has prohibited all communal activities and meals in nursing home facilities. Only essential healthcare workers and government surveyors are currently allowed to have access to these facilities. Given the risk that healthcare providers may face when seeing residences in multiple nursing homes, the term essential is to be construed narrowly.

Whenever possible, instead of having physicians visit each nursing home, physician visits may be conducted via telehealth. Visitation of the nursing home residences should be limited only to compassionate situations—meaning end of life visitation and other visits under similar conditions.

Limited Visitation

When approved visitors visit the residents, they must be limited to that resident’s room, or another designated area. The visitor is required to wear Personal Protective Equipment (such as face masks) and should be practicing hand hygiene (washing and sanitizing hands). The visitors should be discouraged from hugging or engaging in physical contact with the residents.

Approved visitors who are able to visit during “compassionate situation” visitations include family and friends, along with other non-essential persons, such as ombudsman program representatives. If someone is experiencing respiratory infection symptoms, they will not be allowed to visit.

Nursing homes may also be able to arrange virtual visits with the residents by allowing family and friends to connect with the residents through a video chat or phone call, or even through a window. CMS is encouraging nursing home facilities to allow residents to make phone calls and use other forms of remote communications during this time.

Other Facility Operations Changes

At this time, nurse aide training requirements are waived, aside from the requirement that nurse aides are to be competent. During this emergency, a nursing home facility is not required to comply with the deadlines for submitting resident assessment or staffing levels data to CMS.

Admissions from Hospitals

Medicare payment standards are currently loosened. Currently, a three-night hospital stay is no longer required as a prerequisite for Medicare coverage of nursing home care. However, CMS still requires that there be a finding that either:

  • The resident needs focused nursing care on a daily basis; or,
  • At least five days a week of skilled therapy services.

A nursing home facility can admit a resident who has COVID-19, as long as they are able to follow CDC guidelines for Transmission-Based Precautions. Regarding regular admissions, nursing home facilities can conduct business as usual, admitting individuals to the facility as they normally would, including individuals from hospitals where a case of COVID-19 was or is present. States have enacted their own policies on these issues, and CMS has not formally taken a position on the various state policies. CMS officials have noted informally that they are inclined to defer to states on these types of issues.

Moving Nursing Facility Residents Based on Diagnosis

CMS allows for nursing facility residents to be moved without advance notice to a different facility, in three different scenarios:

  • A resident without symptoms of a respiratory infection or a diagnosis of such is being transferred to a facility which is dedicated to the care of such residents;
  • A resident with COVID-19 or any respiratory infection symptoms is being transferred to a facility which is dedicated to the care of such residents;
  • A resident without any symptoms of a respiratory infection is being transferred to another facility in order to complete a 14-day observation.

However, the new facility must be asked and agree in advance to accept the resident. For the sole purpose of separating COVID-negative and COVID-positive nursing facility residents, CMS has currently waived regulatory rights to:

  • Receive notice before a transfer within the facility;
  • Refuse certain transfers within a facility; and,
  • Room sharing with the consent of both persons.

Survey Activities

Survey activities are limited to the following, under CMS’s survey prioritization:

  • Initial certification surveys;
  • Surveys for immediate jeopardy situations; and,
  • Targeted infection control surveys which are conducted along with the Centers for Disease Control and Prevention (CDC).

Additionally, facilities are to have an infection control checklist for self-assessment. Due to practical realities, along with CMS guidance, surveyors face additional limitations. If a surveyor is unable to obtain Personal Protective Equipment, they cannot perform an on-site survey.

Also, enforcement remedies are not to be imposed during this emergency period, with the exception of remedies that arise from immediate jeopardy situations. Unless a complaint has been triaged as immediate jeopardy, the complaint will be logged into the system, but there will be no other action taken for the time being. CMS will issue further guidance on these complaints as a long-term solution.

Tips for Administrative Advocacy

Advocates must push the states and CMS to not lose sight of the needs of individual residents. It is better to think of this time as a modification of the regulations, rather than just a pure waiver of them, so that the appropriate resident protections are able to be maintained. If a waiver is issued, then state or federal guidance should fill the holes wherever the waiver has left a vacuum.

The Peck Law Group

About the Author

Attorney Steven Peck has been practicing law since 1981. A former successful business owner, Mr. Peck initially focused his legal career on business law. Within the first three years, after some colleagues and friend’s parents endured nursing home neglect and elder abuse, he continued his education to begin practicing elder law and nursing home abuse law.


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