Annual regulatory updates from CMS come as no surprise; however, when coupled with significant updates from the CDC we may feel overwhelmed.
Successful implementation of regulatory, survey, federal, and state updates is possible when we implement the following strategies.
BREATHE! – You’re not alone, and change does not have to be a bad thing. As a matter of fact, the new CDC and CMS guidance is leading us into a highly anticipated phase of the pandemic… a new beginning for our patients, visitors, and employees.
Subscribe to CMS and CDC websites to receive fact sheets, FAQs, invites to webinars, and the latest updates.
Know your company structure and departments of expertise. Watch for their guidance and recommendations.
Review policies and procedures to ensure they are compliant with the new guidance.
Consider any information that may need to be communicated to residents, families, and visitors (e.g., updated visitation guidance) and the best method to deliver this information (e.g., posting signage).
Communicate with staff; consider various methods of delivery (email, webinars, in-person meetings).
Assess the effectiveness of your facility’s implementation of new guidance and regulations. For areas needing improvement, make a plan to ensure preparedness.
Connect with Reliant to receive Real Time Memos and the monthly Reliant Reveal newsletter.
In case you missed these recent publications from Reliant, click the links below to review our summaries of recently updated and upcoming regulatory guidance:
On June 29, 2022, the Centers for Medicare & Medicaid Services (CMS) issued updates to guidance on minimum health and safety standards that Long-Term Care (LTC) facilities must meet to participate in Medicare and Medicaid. CMS also updated and developed new guidance in the State Operations Manual (SOM) to address issues that significantly affect residents of LTC facilities.
Surveyors will begin using this guidance to identify noncompliance on October 24, 2022.
Key areas of guidance include
Requirements for surveyors to incorporate the use of Payroll Based Journal (PBJ) staffing data for their inspections.
CMS indicates the believe this will help identify potential noncompliance with CMS’ nursing staff requirements, uncover instance of insufficient staffing, and yield higher quality care. In addition, they state this allows facilities to begin addressing the staffing issues while the new rule making for minimum staffing levels is underway.
Requirements for an onsite at least part-time Infection Preventionist (IP) who has specialized training to effectively oversee the facilities infection prevention and control program.
CMS believes that the role of the Infection Preventionist (IP) is critical in the facility’s efforts to mitigate the onset and spread of infections. CMS cites the IP role as critical to mitigating infectious diseases through an effective infection prevention and control program.
For additional guidance and details, refer to the State Operations Manual and QSO-22-19-NH.
CMS included in memorandum QSO-22-19-NH recommendations related to resident room capacity. There are no new regulations related to resident room capacity. However, CMS wanted to highlight the benefits of reducing the number of residents in each room given the lessons learned during the COVID-19 pandemic for preventing infections and the importance of residents’ rights to privacy and homelike environment. CMS urges providers to consider making changes to their settings to allow for a maximum of double occupancy in each room and encouraging facilities to explore ways to allow for more single occupancy rooms for nursing home residents.
CMS has updated its guidance and provided specific instructions for using the Qualified Hospital Stay (QHS) and benefit period waivers, as well as how this affects claims processing and SNF patient assessments.
To bill for the QHS waiver, include the DR condition code. To bill for the benefit period waiver:
Submit a final discharge claim on day 101 with patient status 01, discharge to home.
Readmit the beneficiary to start the benefit period waiver.
For ALL admissions under the benefit period waiver (within the same spell of illness):
Complete a 5-day PPS Assessment. (The interrupted stay policy does not apply.)
Follow all SNF Patient-Driven Payment Model (PDPM) assessment rules.
Include the HIPPS code derived from the new 5-day assessment on the claim.
The variable per diem schedule begins from Day 1.
For ALL SNF benefit period waiver claims (within the same spell of illness), include the following:
Condition code DR – identifies the claims as related to the PHE
Condition code 57 (readmission) – this will bypass edits related to the 3-day stay being within 30 days
COVID 100 in the remarks – this identifies the claims as a benefit period waiver request
Note: Providers may utilize the additional 100 SNF benefit days at any time within the same spell of illness.
Claims are not required to contain the above coding for ALL benefit period waiver claims.
Example: If a benefit waiver claim was paid utilizing 70 of the additional SNF benefit days and the beneficiary either was discharged or fell below a skilled level of care for 20 days, the beneficiary may subsequently utilize the remaining 30 additional SNF benefit days as along as the resumption of SNF care occurs within 60 days (that is, within the same spell of illness).
Additional instructions can be found in the article if you previously submitted a claim for a one-time benefit period waiver that rejected for exhausted benefits.
Use Medicare.gov’s Care Compare to find and compare health care providers.
In early September, the Centers for Medicare & Medicaid Services (CMS) released Care Compare on Medicare.gov, which streamlines the eight original health care compare tools. The eight original compare tools – like Nursing Home Compare, Hospital Compare, Physician Compare – will be retired on December 1st. CMS urges consumers and providers to:
Use Care Compare on Medicare.govand encourage people with Medicare and their caregivers to start using it, too. Go to Medicare.gov and choose “Find care”.
Update any links to the eight original care tools on your public-facing websites so they’ll direct your audiences to Care Compare.
With just one click on Care Compare, easy-to-understand information about nursing homes, hospitals, doctors, and other health care providers is available.
Information about health care providers and CMS quality data will be available on Care Compare, as well as via download from CMS publicly reported data from the Provider Data Catalog on CMS.gov.
In September, the Centers for Medicare and Medicaid Services (CMS) released exciting news for the advancement of safe visitation and resumption of group activities and communal dining in nursing homes (see QSO-20-39-NH). As the effects of isolation have taken a tremendous toll on our elderly population, care teams and residents are ready to implement safe steps to social reintegration. Facilities, including therapy departments, can now offer a variety of group activities while also taking the necessary precautions.
CMS provides Core Principles of COVID-19 Infection Preventionwhich should be incorporated as best practice to reduce the risk of COVID-19 transmission in order to resume visitation and group activities. It is indicated that group activities may be facilitated (for residents who have fully recovered from COVID-19 and for those not in isolation for observation, suspected or confirmed COVID-19 status) with social distancing among residents, appropriate hand hygiene, and use of cloth face coverings or facemasks. CMS’ examples of group activities include book clubs, crafts, movies, exercise and bingo.
As facilities implement these principles and activities, it is important to remember, early in the pandemic, resident-centered care plans were adapted for isolation considerations. These care plans should now be reviewed, especially in the light of infection control prevention, trauma-informed care, cognitive changes and fall prevention. It should not be assumed that residents will function at the same level as they did pre-pandemic; therefore, consider the increased risks associated with the possible secondary effects of the pandemic and isolation precautions:
Infection Prevention and Control: Review the resident’s ability to safely wear cloth face coverings and understanding of or cueing needed for social distancing. Identify assistance and reminders needed to perform hand hygiene.
Trauma-Informed Care (TIC): Consider whether the resident is suffering from anxiety associated with infection risk or recovery and provide a facility plan for safe reopening. Ensure staff buy-in to the plan and implementation in order to set good examples and provide TIC support. Be sensitive to the effects of a busy, potentially noisy, environment following a period of social isolation.
Cognitive changes: As social interaction increases and the physical environment changes, be aware of behavioral responses and signs or symptoms of confusion. Assess behaviors as a form of communicative response to the environment and adapt as appropriate.
Fall prevention: Consider that as the resident’s access to the facility and grounds expands, their environment is now exponentially larger. Review their ability to safely ambulate throughout the facility as this may place the resident at increased risk of falls and wayfinding confusion.
Protecting residents from COVID-19 highlights the struggle between keeping residents healthy and providing beneficial, daily experiences that can impact quality of life. Nursing, therapy, and facility staff must work as a team to implement creative means to facilitate safety during group activities and social reintegration to allow our residents to safely flourish in light of the challenges they encounter.
What is a breach of Protected Health Information (PHI)? A breach means the impermissible acquisition, access, use, or disclosure of PHI as defined under the Health Information Portability and Accountability Act (HIPAA) Privacy Rule that compromises the security or privacy of PHI.
Whenever a breach of PHI occurs, the residents impacted must be notified along with the secretary of the United States Department of Health and Human Services (HHS). Residents must be notified as soon as possible but no later than 60 days from discovery of the breach. This notification deadline to the Secretary of HHS varies depending on the number of residents impacted. If less than 500 residents are impacted, the deadline for notification to the Secretary is 60 days after the end of the calendar year in which the breach occurred. If 500 or more residents are impacted, the deadline for notification to the Secretary is no later than 60 days from the discovery of the breach.
Covered entities are required to report breaches to the Office of Civil Rights Breach reporting portal. The United States Department of Health and Human Services, in accordance with section 13402(e)(4) of the Health Information Technology for Economic and Clinical Health Act (HITECH), posts online a list of breaches impacting 500 or more individuals. This breach portal is unofficially labeled the “Wall of Shame”. CLICK HERE to visit the portal.
The Centers for Medicare & Medicaid Services (CMS) released a memo reiterating the continued right of nursing home residents to exercise their right to vote. While the COVID-19 Public Health Emergency has resulted in limitations for visitors to enter the facility to assist residents, nursing homes must still ensure residents are able to exercise their Constitutional right to vote. A resident’s rights, including the right to vote, must not be impeded in any way by the nursing home staff.
Nursing home personnel should have a plan to ensure residents can exercise their right to vote, whether in person, by mail, absentee, or other authorized process. For residents who are otherwise unable to cast their ballots in person, nursing home staff must ensure residents have the right to receive and send their ballots via the U.S. Postal Service or other authorized mechanism allowed by the State or locality.
The Centers for Disease Control & Prevention (CDC) and the Centers for Medicare & Medicaid Services (CMS) are now requiring nursing facilities to utilize the CDC’s National Healthcare Safety Network (NHSN) as the required reporting pathway for the COVID -19 testing results that nursing facilities are generating from point of care (POC) testing devices which were provided by the Department of Health & Human Services (HHS).
Data collected via NHSN is pushed to the AIMS platform, which is hosted by the Association of Public Health Laboratories, every two hours. The AIMS platform then shares this data with state and local health departments as well as with HHS.
Currently, entry of data into NHSN is manual and entered one patient at a time. The CDC indicated that it plans to make accepting a CSV file, for multiple persons and test results at one time, possible in the future.
CLICK HERE for more information from HHS on reporting requirements.
On Oct. 22, The Department of Health and Human Services (HHS) released a memo stating that they are no longer limiting providers’ use of Provider Relief Funds for covering lost revenue due to the coronavirus. HHS announced that it will go back to allowing providers to calculate their lost revenue based on the difference between their 2019 and 2020 actual patient- care revenue, and eliminate limits on how much Provider Relief Fund (PRF) payments can be applied to that lost revenue.
HHS added that the amended reporting instructions should allow providers to fully apply PRF distributions to lost revenues.
The Centers for Medicare & Medicaid Services (CMS) announced a change in its methodology for calculating county-level community infection rates for COVID-19. Facilities are expected to use the county-level color coded rating (green, yellow, or red) to determine the frequency for testing facility staff and residents in accordance with CMS guidance.
The earlier guidance and methodology required facilities to test staff once monthly if the county in which the facility is located had a positivity rate of less than five percent (< 5%); testing frequency increased to once each week for county positivity rates between five and 10 percent (5 – 10%) and twice weekly for county positivity rates that exceeded 10 percent (>10%). The shift in methodology will mean a change in the color-coding rates. For example, CMS’ new methodology classifies counties with both fewer than 500 tests and fewer than 2,000 tests per 100,000 residents, along with a positivity rate greater than 10 percent over 14 days as “yellow” whereas the earlier methodology would have put these counties in the red zone.
CLICK HERE to read CMS’ press release about the change in methodology.
CLICK HERE for the latest county positivity rates.
The Centers for Medicare & Medicaid Services (CMS) posted an updated PDPM Grouper DLL v1.0007to the MDS 3.0 Technical Information webpage.
CMS indicates that six ICD-10 codes were “inadvertently excluded from the NTA calculation.” The ICD-10 codes include: T8484XA, T8389XA, T8321XA, T82399A, T82392A and T83021A.
The PDPM Grouper DLL v1.0007 package notes that PDPM can be used for OBRA assessments where A0310A =[01,02,03,04,05,06] and A0310B =  as determined by each state. CMS also notes that FY2021 ICD-10 codes must be used for I0020B in these assessments as well as for the I8000A-J items in MDS assessments with a target date on or after October 1, 2020.
The Centers for Medicare & Medicaid Services (CMS) announced new actions to pay for expedited COVID-19 test results. CMS announced that starting January 1, 2021, Medicare will pay $100 only to laboratories that complete COVID-19 diagnostic tests within two calendar days of the specimen being collected.
Also, effective January 1, 2021, for laboratories that take longer than two days to complete these tests, Medicare will pay a rate of $75. CMS reports they are working to ensure that patients who test positive for the virus are alerted quickly so they can self-isolate and receive medical treatment.
CLICK HERE to review the full press release from CMS.
The Centers for Medicare & Medicaid Services (CMS) announced amended terms for payments issued under the Accelerated and Advance Payment (AAP) Program. Under the Continuing Appropriations Act, 2021 and Other Extensions Act, repayment will now begin one year from the issuance date of each provider or supplier’s accelerated or advance payment.
Providers were required to make payments starting in August of this year, but repayment will be delayed until one year after payment was issued. After that first year, Medicare will automatically recoup 25 percent of Medicare payments otherwise owed to the provider or supplier for eleven months. At the end of the eleven-month period, recoupment will increase to 50 percent for another six months. If the provider or supplier is unable to repay the total amount of the AAP during this time-period (a total of 29 months), CMS will issue letters requiring repayment of any outstanding balance, subject to an interest rate of four percent.
Guidance is also provided on how to request an Extended Repayment Schedule (ERS) for providers and suppliers who are experiencing financial hardships. An ERS is a debt installment payment plan that allows a provider or supplier to pay debts over the course of three years or up to five years in the case of extreme hardship. Providers and suppliers are encouraged to contact their Medicare Administrative Contractor (MAC) for information on how to request an ERS.
CLICK HERE to read the full press release from CMS.
Earlier this year, the U.S. Centers for Medicare and Medicaid Services (CMS) deleted certain Correct Coding Initiative (CCI) edits related to physical, occupational, and speech therapy during the public health emergency. Recently, CMS announced that effective October 1, it will reinstate previously deleted coding edits for code pairs that represent common and appropriate therapy practice (i.e. 97116 and 97530 or 92526 and 97129).
The reinstated edits will require the use of the 59-modifier when these code pairs are provided on the same date of service. For clinicians, data entry within Optima will remain the same. The 59-modifer will automatically be added by Optima when appropriate and viable on the Service Delivery Logs.
In an effort to streamline the 8 existing CMS healthcare compare tools, CMS has combined them all into one streamlined tool, Care Compare. Beginning withthe October 2020 refresh, CMS will publicly display six new measures on the Care Compare website:
Changes in Skin Integrity Post-Acute Care: Pressure Ulcer/Injury
Drug Regimen Review Conducted with Follow-Up for Identified Issues
Application of IRF Functional Outcome Measure: Change in Self-Care
Application of IRF Functional Outcome Measure: Change in Mobility
Application of IRF Functional Outcome Measure: Discharge Self-Care Score
Application of IRF Functional Outcome Measure: Discharge Mobility Score
Additionally, CMS announced the SNF Healthcare-Associated Infection measure will be a part of the Measures Under Consideration list later this year. CMS has posted Draft Measure Specifications: SNF Healthcare-Associated Infections Requiring Hospitalizations for the SNF QRP (SNF HAI measure) and is seeking input from the public.
The SNF QRP Reporting User’s Manual Version 3.0.1 has been updated. These updates will be effective October 1, 2020.
All four SNF Functional Outcome Measures
Exclusion criteria: The age exclusion criterion for these measures has been updated from 21 years to 18 years, such that any resident younger than 18 years of age will be excluded from measure calculations.
SNF Discharge to Community Measure:
Exclusion criteria: This measure has been updated to exclude residents who had a long-term nursing facility (NF) stay in the 180 days preceding their qualifying hospitalization and SNF stay, with no intervening community discharge between the long-term NF stay and qualifying hospitalization.
Early in the public health emergency, CMS made reporting requirements “optional” or “excepted” based on quarter. CMS indicated that data submission for Q4 2019 was optional and that any data submitted would be used for reporting purposes. Since data submission for Q4 2019 was strong, the data will be included in measure calculations for the Nursing Home Compare site refresh scheduled for October 2020. Because data from Q1 and Q2 is not included in the category or group specified for reporting, the data will be held constant following the October 2020 refresh.
CLICK HERE to view the SNF QRP User’s Manual Version 3.0.1
Beginning, October 1, 2020, MDS version 1.17.2 will be instituted. Updates include assessment changes that will support the calculation of PDPM payment codes for state Medicaid programs and on OBRA assessments when not combined with the 5-day SNF PPS assessment.
This will specifically affect the OBRA comprehensive (NC) and OBRA quarterly (NQ) assessment item sets, which was not possible with item set version 1.17.1.
Sections GG, I, and J
The updated item sets will not have a revised RAI manual released. As of 9/18/2020, AANAC is reporting 31 states have indicated they will be gathering PDPM data for state Medicaid programs and on OBRA assessments.
Items GG0130 and GG0170 headers updated to read “Start of SNF stay or State PDPM”
Completion instructions include: If state requires completion with an OBRA assessment, the assessment period is the ARD plus 2 previous days. Complete only column 1.
Item I0020 instructions for completion are revised: Complete only if A0310B=01 or if state requires completion with an OBRA assessment.
Item J2100 instructions for completion are revised: Complete only if A0310B=01 or if state requires completion with an OBRA assessment.
The Centers for Medicare & Medicaid Services (CMS) issued new guidance for visitation in nursing homes during the COVID-19 public health emergency. The guidance below provides reasonable ways a nursing home can safely facilitate in-person visitation to address the psychosocial needs of residents.
Visitation can be conducted through different means based on a facility’s structure and residents’ needs, such as in resident rooms, dedicated visitation spaces, outdoors, and for circumstances beyond compassionate care situations.
Regardless of how visits are conducted, certain Core Principles of Infection Control must be maintained:
Screen all who enter the facility for signs and symptoms of COVID-19 (e.g., temperature checks, questions or observations about signs or symptoms), and denial of entry of those with signs or symptoms
Hand hygiene (use of alcohol-based hand rub is preferred)
Face covering or mask
Social distancing at least six feet between persons
Instructional signage throughout the facility and proper visitor education on COVID-19 signs and symptoms, infection control precautions, other applicable facility practices (e.g., use of face covering or mask, specified entries, exits and routes to designated areas, hand hygiene)
Clean and disinfect high frequency touched surfaces in the facility often, and designate visitation areas after each visit
Appropriate staff use of Personal Protective Equipment (PPE)
Effective cohorting of residents (e.g., separate areas dedicated to COVID-19 care)
Resident and staff testing conducted as required in 42 CFR 483.80(h)
Guidance is provided for indoor, outdoor, and compassionate care situations.
Outdoor visits pose a lower risk of transmission due to increased space and airflow. Therefore, outdoor visitation is preferred, and all visits should be held outdoors whenever practicable.
Should be accommodated and supported based on the following guidelines:
No new onset of COVID-19 cases in the last 14 days and the facility is not currently conducting outbreak testing;
Visitors adhere to the core principles and staff adherence;
Limit the number of visitors per resident at one time and limit the total number of visitors in the facility at one time (based on the size of the building and physical space);
Consider scheduling visits for a specified length of time to help ensure all residents are able to receive visitors; and
Limit movement in the facility.
Facilities should use the COVID-19 county positivity rate, found on the COVID-19 Nursing Home Data site to determine how to facilitate indoor visitation:
Communal Activities and Dining
While adhering to the core principles of COVID-19 infection prevention, communal activities and dining may occur.
Residents may eat in the same room with social distancing (e.g., limited number of people at each table and with at least six feet between each person).
Facilities should consider additional limitations based on status of COVID-19 infections in the facility.
Additionally, group activities may also be facilitated (for residents who have fully recovered from COVID-19, and for those not in isolation for observation, or with suspected or confirmed COVID-19 status) with social distancing among residents, appropriate hand hygiene, and use of a face covering.
Facilities may be able to offer a variety of activities while also taking necessary precautions.
For example, book clubs, crafts, movies, exercise, and bingo are all activities that can be facilitated with alterations to adhere to the guidelines for preventing transmission.
For additional guidance concerning compassionate care visitations, refer to the full article here.
CMS has released guidance outlining details on how to comply with the new interim final rule requiring COVID-19 testing of staff and residents.
CMS is requiring facilities to conduct three types of testing:
Symptomatic Testing: Test any staff or residents who have signs or symptoms of COVID-19 (facility must continue screening all staff, residents and other visitors).
Outbreak Testing: Test all staff and residents in response to an outbreak (defined as any single new infection in staff or any nursing home onset infection in a resident) and continue to test all staff and residents that tested negative every 3-7 days until 14 days has passed since the most recent positive result. An admit already confirmed does not constitute a facility outbreak.
Routine Testing: Test all staff based on the extent of the virus in the community, using CMS’ published county positivity rate under “COVID-19 Testing”, in the prior week as the trigger for staff testing frequency as outlined in the table below:
Facilities are guided to monitor their county positivity rate every other week (e.g. first and third Monday of every month).
Staff and residents who have recovered from COVID-19 and are asymptomatic do not need to be retested for COVID within 3 months after symptom onset.
CMS provided guidance on staff who refuse to test:
Staff who refuse and have signs or symptoms must be prohibited from entering until the return to work criteria are met. CLICK HERE to review the CDC Criteria for Return to Work.
Asymptomatic staff who refuse testing should follow occupational health and local jurisdiction policies.
Facilities must maintain records of all testing for compliance and must be able to provide to surveyors.
Facilities that do not comply with the testing requirements will be cited for noncompliance with new F-tag, F-886.
CMS has also revised the focus surveys for nursing homes to ensure compliance with testing requirements, infection prevention standards, and compliance for infection preventionists.
The Office of Civil Rights (OCR) issued an alert on August 6, 2020 reporting postcards are being sent impersonating the OCR to coerce compliance officers into visiting a website regarding HIPAA risk assessments. This is a marketing ploy to trick the victim into engaging in services under the guise of a directive from OCR. A risk assessment is a requirement of HIPAA as defined in §164.308(a)(1); however, it does not specifically state how often it is needed or how it is to be done. Best practice is to conduct risk assessments annually or when significant changes or threats occur within or to the environment.
It is recommended by OCR that all covered entities alert their workforce about this misleading communication. For more information and an example of the postcard, CLICK HERE.