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CMS Rule Requires Nursing Home Staff to be Tested for COVID-19

August 26, 2020

An interim final rule from the Centers for Medicare & Medicaid Services (CMS) that requires all Medicare-certified nursing homes test their staff for COVID-19 is drawing mixed reviews from the homes.

“The pandemic has already cost nursing homes tens of thousands of lives and billions of dollars, as dedicated workers have been shouting for help from the front line,” Katie Smith Sloan, president and CEO of LeadingAge, an association of nonprofit nursing homes, said in a statement. “Nursing homes will put the resources CMS announced today to good use. But the fight against this virus is far from over, and our members need continued support.”

She added that “the antigen testing machines HHS [the Department of Health and Human Services] is delivering to nursing homes will help, but members who already have the machines report that they are still waiting for instructions and test kits to make them usable.”

The interim final rule issued Tuesday calls for nursing homes to test all staff, although the frequency may vary even among staff members at a single facility. “We estimate that, based on the guidelines given regarding testing frequency, the criteria for conducting a test, and the response time for test result, not all staff will be tested on the same frequency,” the regulation says. “For example, a third of the staff population could be tested weekly and two-thirds of the staff population could receive a test every ten days or monthly.”

In general, “CMS recommendations for the frequency of staff testing will be based on the degree of community spread, to be announced shortly through guidance, that indicate the facility may be at increased risk for COVID-19 transmission,” the agency said in a press release.

The regulation also requires that nursing homes offer tests to residents, although they are not required to take them. “We’re offering it because this is a medical service and there are some residents that may refuse it or may not wish to have a test, and so we can’t force our nursing residents — nor would we want to force them — to have something they’re not comfortable with,” CMS administrator Seema Verma said Tuesday on a phone call with reporters.

In addition, “the administration is holding nursing homes accountable for the testing requirement by directing surveyors to inspect nursing homes for adherence to the new testing requirements,” according to the press release. “Facilities that do not comply with the new requirements will be cited for non-compliance and may face enforcement sanctions based on the severity of the noncompliance, such as civil money penalties in excess of $400 per day, or over $8,000 for an instance of noncompliance.”

o help nursing homes pay for the additional testing required, CMS is distributing $2.5 billion from the Provider Relief Fund “on top of almost $5 billion that HHS distributed” previously to nursing homes struggling to pay the additional costs required due to the pandemic; the new money “should be available later this week,” Verma said. The agency is also offering new training courses for staff “that incorporates recent lessons learned from nursing homes” on dealing with the pandemic; the free classes include modules on hand hygiene and personal protective equipment (PPE); screening and surveillance; and cleaning the nursing home.

AMDA – The Society for Post-Acute and Long-Term Care Medicine, which represents nursing home medical directors, expressed some concern about the rule. The additional funding for testing is welcome, “but how sustainable is this level of testing for the time being?” said Alex Bardakh, the organization’s director of public policy and advocacy, in a phone interview. “How prepared are nursing facilities to do this sort of mass testing?” And since the homes will mostly be doing point-of-care rapid testing, “what are we going to do about false positives?” he added, noting that some point-of-care tests have received notoriety recently over that issue.

The false positive issue is a serious one, he continued. “In nursing homes, you’re talking about a staffer coming into a facility or not, and disrupting the workforce, or ‘cohorting’ a resident or not cohorting a resident,” Bardakh said, referring to the idea of separately housing residents who have COVID-19 from those who don’t. And nursing homes in some parts of the country are having trouble getting the needed supplies, he added. “I consistently hear concerns about pipeline and supply chain issues…. Do we truly have a strategy for how to handle it all, including the flow of PPE, the tools that are necessary, the swabs?”

Bardakh also criticized the monetary penalties attached to non-compliance. “There are always concerns about deploying civil monetary penalties at a time when it’s an ‘all hands on deck’ situation,” he said. “We talk quite a bit about partnering with facilities in terms of what they’re facing rather than taking punitive approach.”

Another part of the rule requires hospitals to report daily “several important data elements to HHS,” including the number of confirmed or suspected COVID-19-positive patients, ICU beds occupied, and availability of equipment such as ventilators and PPE, Verma said. “While many hospitals are currently reporting this information, not all hospitals have done so consistently.” The rule says CMS will have the option of terminating or suspending Medicare and Medicaid funding from non-compliant hospitals — a provision that did not sit well with hospital groups.

“America’s hospitals remain fully committed to ensuring that the federal government gets the data it needs,” American Hospital Association President and CEO Rick Pollack said in a statement. “It’s beyond perplexing why CMS would use a regulatory sledgehammer — threatening Medicare participation — to the very organizations that are on the frontlines in the fight against COVID-19. This rule should be reversed immediately.”

https://www.medpagetoday.com/infectiousdisease/covid19/88285

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