Sunday, May 24, 2020

Is What CMS Doesn't Say as Important as What CMS Does Say in Recommendations for "Reopening" Nursing Homes?

On May 18, 2020, Centers for Medicare and Medicaid Services (CMS) released a ten-page Memorandum making recommendations to state and local officials for operation of "Medicare/Medicaid certified long term care facilities (hereafter 'nursing homes') to prevent the transmission of COVID-19." 

In some ways, nursing homes may be breathing a sigh of relief as the memo does not use any mandatory language directed at the operators.  In some instances CMS identifies "choices" for the states, such as whether to require all facilities in a state to go through reopening phases at the same time, by region, or on individual bases.  The memo says that facilities "should" have CDC-compliant testing plans, including "capacity" for all residents and staff members to have a single baseline test with retesting until all test negative. What does that mean?  You should be able to test everyone before you ease visiting restrictions, but you can choose not to do so?   On page 4, CMS cross-references ("cross-walk") to reopening phases for all "senior care facilities" under President Trump's Opening Up America Again plan.  The document describes "surveys that will be performed at each phase" of the reopening process, referring to the states' obligations to conduct surveys on prioritized timelines, although with no hard numbers for such oversight suggested.

CMS recommends that each nursing home "should spend a minimum of 14 days in a given phase, with no new nursing home onset of COVID-19 cases, prior to advancing to the next phase," and CMS says states "may choose to have a longer waiting period (e.g., 28 days) before relaxing restrictions for facilities that have had a significant outbreak of COVID-19 cases." 

Significantly, there is nothing in the latest CMS guidelines regarding staff members who work at more than one facility, thus posing a clear potential for cross-contamination.  That seems to me, at least, especially short-sighted.  

https://lawprofessors.typepad.com/elder_law/2020/05/is-what-cms-doesnt-say-as-important-as-what-cms-does-say-in-recommendations-for-reopening-nursing-ho.html

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