Jan 5, 2022 | Articles Of Interest
- OSHA Withdraws Healthcare Emergency Temporary Standards (ETS), OSHA Vaccine Mandate ETS Now Applies to All Providers
- CDC Updates and Shortens Recommended Quarantine Period
- CMS Issues New Visitation FAQs
- Update on Phase 4 Provider Relief Fund and ARP Rural Payments
December 28, 2021
| Yesterday, the Occupational Safety and Health Administration (OSHA) updated its website to withdraw the non-record-keeping portions of the healthcare emergency temporary standards (ETS) issued in June. The ETS is no longer in effect; however, the record-keeping requirements in the ETS will continue as they were adopted under another section of the OSHA Act.
OSHA intends to issue a final standard in the coming months that will incorporate much of the June ETS. Meanwhile, OSHA strongly encourages all health care employers to continue to implement the ETS’ requirements and notes they will continue enforcement of COVID safety standards through the general duty clause.For details on the June ETS, see AHCA/NCAL’s summary.
Due to the withdrawal of the June health care ETS, large health care employers (100 or more), including all assisted living, nursing, or other long-term care providers, are now subject to OSHA’s vaccine mandate ETS. At this time the vaccine mandate ETS is effective, with a January 7, 2022, hearing before the United States Supreme Court. The OSHA vaccine mandate would apply to those providers also covered by CMS’ vaccine mandate interim final rule (IFR), should the government prevail and the IFR be implemented. The CMS IFR is not being enforced pending a hearing before the U.S. Supreme Court, also set for January 7, 2022.
The OSHA vaccine ETS includes an option for testing unvaccinated employees (the CMS IFR does not). OSHA will not issue citations for non-compliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA notes that it plans to work closely with employers to provide compliance assistance.
Florida providers must also be mindful of complying with Florida’s newly enacted law that grants exemptions from vaccinatino to employees. The issue of whether the federal OSHA and CMS rules preempt the state law has not yet been determined by the courts.
FHCA will continue to provide updates on these requirements. Please watch for an announcement of educational information delivered by AHCA/NCAL on OSHA’s vaccine and testing requirement.
CDC Updates and Shortens Recommended Quarantine Period
The CDC announced changes to their COVID-19 isolation and quarantine guidance for the general public, which includes long term care residents. They will shorten both the isolation and quarantine periods based on new data regarding infectiousness and the Omicron variant. Read More
CMS Issues New Visitation FAQs
Last week, CMS issued a new set of Frequently Asked Questions (FAQs) on the revised nursing home visitation guidelines outlined in the memo, “QSO-20-39-NH REVISED.” AHCA/NCAL has highlighted the most frequent questions from members in CMS’ four-page FAQs here.
Update on Phase 4 Provider Relief Fund and ARP Rural Payments
HRSA provided updated information on the status of PRF Phase 4 and ARP Rural Payments. Topics include size of Phase 4 awards, additional detail on Phase 4 methodology, update on hospital funds transfer to SNFs, and updated timelines regarding receipt of funds and provider requests for individualized support.
Reporting Period 2 begins on January 1, 2022. The extended Reporting Period 1 ended on December 20, 2021, and no additional Reporting Period 1 extensions will be offered. Due to technical difficulties during the Reporting Period 1 dates, HRSA urges providers to submit as soon as possible. Read More |
Nov 30, 2021 | Articles Of Interest
The United States District Court in the Western District of Louisiana has issued a nationwide injunction preventing the federal government from implementing the CMS vaccine mandate for health care staff. This injunction applies to all states which were not covered by the injunction issued yesterday in ten states, ensuring that the entire nation is covered. In its memorandum ruling, the District Court in the Louisiana case found that the federal government did not have the authority to issue such a mandate.
There are currently four active cases regarding the CMS interim final rule staff vaccine mandate: the Louisiana litigation, which was filed by a 14-state group, the Missouri litigation filed by 10 states and which was the subject of the 10-state preliminary injunction issued yesterday, and individual cases filed by the states of Florida and Texas. Florida’s request for a preliminary injunction was denied by the District Court last week and is being appealed. A hearing in the Texas case is scheduled for Thursday morning. The federal government today noticed its intention to appeal the 10-state injunction which makes it likely we should expect an appeal of the nationwide injunction as well.
What does today’s action by the Louisiana District Court mean?
This ruling follows recent actions by Governor DeSantis regarding COVID-19 mandates and the State of Florida’s pending challenge against the CMS rule currently under consideration in the U.S. District Court for the Northern District of Florida.
While the CMS interim final rule is, as of today, prevented in all states from going into effect, Medicare providers should continue to prepare to have policies and procedures ready so that if the government’s arguments prevail, they can be quickly implemented. As employers, providers should consider what policy they want to have in place until a government mandate requires it, which is not certain.
FHCA will continue to monitor this issue and provide updates.
Visit the FHCA COVID-19 web page for continuous updates.
Sep 23, 2021 | Articles Of Interest
Credit: Article Written by Baker Donelson
On September 10, the Health Resources and Services Administration (HRSA) announced $25.5 billion in new funding that will be made available to health care providers to reimburse health care related expenses and revenue losses due to COVID-19. HRSA will make $17 billion available through the Provider Relief Fund (PRF) and $8.5 billion available to providers that serve rural patients through American Rescue Plan (ARP) funds.
Providers will be able to apply for new funding starting September 29, 2021.
HRSA also announced a 60-day grace period for PRF recipients that fail to meet the deadline to submit the first report due on use of PRF payments, which is due on September 30, 2021.
Summary of New Funding Opportunities and the Application Process
PRF Phase 4 General Distribution: $17 Billion
HRSA will issue $17 billion in new PRF funds through a Phase 4 General Distribution. Details are available on HRSA’s Future Payments webpage.
The new distribution follows three previous General Distribution payments under the PRF and several targeted payment distributions. See here for a detailed breakdown of PRF payments issued to date.
HRSA will issue payments based on providers’ lost revenues and changes in operating expenses from July 1, 2020 to March 31, 2021. HRSA will base 75 percent of the Phase 4 payments on revenue losses and COVID-19 related expenses, as follows:
- HRSA will reimburse a higher percentage of lost revenues and expenses for smaller providers, as compared to larger providers.
- Large providers will receive a minimum payment amount for large providers.
- Medium and small providers will receive a supplement on top of a base payment.
- No provider will receive a payment that is higher than their total losses and expenses.
HRSA has not defined what will constitute a small, medium, or large provider, indicating that the agency will determine exact payment amounts after reviewing all applications.
HRSA will allocate the other 25 percent of the Phase 4 funds through bonus payments based on the level of services rendered to Medicaid, CHIP, and Medicare patients. Although the agency has not provided details, HRSA indicates that it will use existing Medicaid/CHIP and Medicare claims data in calculating portions of the payments.
ARP Distribution Funding for Providers Serving Rural Patients: $8.5 Billion
HRSA outlines the details of the ARP Rural Distribution on its Future Payments webpage. The ARP Act, enacted in March, included $8.5 billion for rural health care providers to reimburse health care related expenses and lost revenues that are attributable to COVID-19. The funding was separate from, although similar to, the PRF and included language similar to what Congress included in the CARES Act when creating the PRF to describe the application process that HHS should use to issue payments and the allowed and prohibited uses of the funding.
HRSA’s announcement indicates that providers will be able to submit applications for both PRF Phase 4 General Distribution payments and ARP Rural Distribution payments at the same time. Providers eligible for ARP Rural Distribution payments include those that serve Medicaid, CHIP, and Medicare patients who live in rural communities. HRSA will issue ARP Rural Distribution payments based on the amount of services furnished to Medicaid/CHIP and Medicare beneficiaries living in Federal Office of Rural Health Policy (FORHP)-defined rural areas. Providers can identify FORHP-defined rural areas using HRSA’s Rural Health Grants Eligibility Analyzer.
Eligible Providers and Application Details
HRSA defines a “provider” as “any provider or supplier of health care, services, and support in a medical setting, at home, or in the community.” HRSA’s PRF Future Payments webpage includes a non-exhaustive list of the types of entities that meet the definition of “provider.”
The application will open on September 29, 2021. HRSA will allow providers to apply for both programs in a single application. Providers should monitor the main PRF website and Future Payments webpage for more information.
September 30 Reporting Deadline Grace for Period 1
HRSA has announced flexibility with respect to the September 30, 2021 deadline that certain PRF recipients face to report to HRSA on the use of certain PRF payments. The September 30 deadline applies to funds received during Payment Received Period 1, which includes funds received between April 10, 2020 and June 30, 2020.
HRSA is not extending the reporting deadline but acknowledges that some providers are facing challenges given the COVID-19 surges and recent natural disasters. As such, HRSA is offering a 60-day grace period, between October 1 and November 30, 2021, during which HRSA will not initiate recoupment or other enforcement actions against those providers that fail to submit their report by September 30 and are out of compliance. Although HRSA is offering this flexibility, the agency strongly encourages providers that are still able to complete their report by September 30 to do so.
Details surrounding the grace period and reporting requirements for PRF recipients are available on the PRF Reporting and Auditing webpage.
Baker Donelson continues to monitor coronavirus developments and will provide information on future efforts to provide funding to health care providers. For additional questions, please contact Sheila P. Burke or Jeffrey I. Davis. You may also visit the Coronavirus (COVID-19): Navigating the Path Ahead information page on our website.
Sep 10, 2021 | Articles Of Interest
President Joe Biden announced that all federally-regulated health care providers that receive Medicare and Medicaid must require employees to receive the COVID-19 vaccination.
Additionally, the president announced that employers with more than 100 employees must require staff to be vaccinated or tested weekly for the virus. This may include many Florida ALFs. He will also sign an executive order to require vaccination for employees of the executive branch and contractors who do business with the federal government.
Last week, CMS announced emergency regulations requiring vaccinations for all staff in nursing homes. Today’s announcement expands the mandate to hospitals, home health, hospice, ambulatory surgical facilities, and other federally-regulated health care organizations.
CMS is in the process of developing an interim final rule with a comment period that will be issued in October. At this point, CMS has not specified a deadline for the vaccinations but expects Medicare and Medicaid facilities to act in the best interests of residents and staff by complying with the mandate.
Sep 8, 2021 | Articles Of Interest
Registration is now open for the AHCA Joint Training for Assisted Living Facilities. Secure your spot today! Pre-registration closes on September 22 (or when the event is full, whichever comes first).
The AHCA 2021 Joint Training for Assisted Living Facilities offers interpretations of regulatory compliance by leaders from the Agency for Health Care Administration (AHCA). Clinical and legal professionals will also highlight best practice guidelines and professional guidance. Featured speakers include representatives from the AHCA Division of Health Quality Assurance, regulatory expert Karen Goldsmith, the Florida Department of Health, and the Florida Long Term Care Ombudsman Program. Attendees will have the opportunity to network with state surveyors from local field offices and learn the latest regulatory requirements directly from AHCA, with the opportunity to ask questions on the spot.
Topics Include:
- State Expectations for Infection Control and Prevention for ALFs
- Medicaid Updates
- Advanced Directives
- Top 10 Opportunities for Improvement in ALFs
- ALF CEMP Rule Update and Emergency Preparedness
- Bed Bugs – Prevention and Treatment
Click here for more information about the AHCA ALF Joint Training.
2021 Dates and Locations
TUESDAY, OCTOBER 5
Fort Lauderdale Marriott Coral Springs Hotel & Convention Center
11775 Heron Bay Blvd
Coral Springs, FL 33076
FRIDAY, OCTOBER 8
AC Hotel of Tallahassee Universities at the Capitol
801 S Gadsden St
Tallahassee, FL 32301
TUESDAY, OCTOBER 19
DoubleTree by Hilton Tampa Airport Westshore
4500 West Cypress Street
Tampa, FL 33607
FRIDAY, OCTOBER 22
The Westin Lake Mary, Orlando North
2974 International Pkwy
Lake Mary, FL 32746
Event Safety Plan
Limited spots are available due to distanced seating within the ballrooms for each location. Along with distanced seating, there are additional safety protocols planned. Please click here for the JT Training Event Safety Policy.
Registration
Register before the locations hit their capacity limits or by September 22 to secure your spot, whichever comes first.
Please be sure to review the Registration Policies carefully before registering. Registrations made after September 22 will need to be made onsite and will be assessed an additional $50.
Aug 23, 2021 | Articles Of Interest
Nursing homes participating in the Medicare and Medicaid programs will be required to have all staff vaccinated against COVID-19 in order to continue receiving federal funding for the programs.
President Joe Biden is expected to make the announcement later today, with guidance from the Centers for Medicare & Medicaid Services expected to come shortly after, according to an Associated Press report citing CNN as an original source.
Providers could be expected to meet the mandate as soon as next month, according to the report.
On a call with her members this afternoon, Ruth Katz, senior vice president of public policy and advocacy for LeadingAge, confirmed that her organization had heard from CMS about the mandate.
She said agency officials expect to release details in writing tonight and are “still working out details in real-time” about effective dates and penalties.
Although the CNN report indicated the change would come as part of Medicare’s Rules of Participation, Katz said it was unclear whether providers would be removed from the program or financially penalized for having unvaccinated workers.
Currently, about 60% of nursing home staff nationwide are vaccinated against COVID-19, according to federal data. That’s compared to 82.4% of residents.
Nursing homes, by far, have been the deadliest places affiliated with COVID-19, accounting for approximately one-third of all coronavirus deaths in the U.S.
Regulatory lever
Earlier this month, a trio of prominent health policy experts called on the Centers for Medicare & Medicaid Services to “tap the levers” of its regulatory powers and use the Rules of Participation to require frontline nursing home workers to get vaccinated against the coronavirus.
“Unvaccinated healthcare workers put patients at high risk, given that their jobs require close interaction with unvaccinated patients and others who are immunocompromised and at higher risk for complications,” wrote Jill Rosenthal, Emily Gee and Maura Calsyn of the Public Health Policy at the liberal-leaning Center for American Progress. “CMS should now update (the Rules of Participation) to mandate that healthcare and LTC staff and contractors, as well as healthcare providers with hospital privileges, are vaccinated against COVID-19.”
The Rules of Participation govern the operations of all U.S. nursing homes receiving Medicaid or Medicare payments in exchange for caring for beneficiaries. Those that violate the rules are subject to penalties, and repeated infractions can lead to loss of certification and removal from the federal system.
To update such rules, CMS normally uses a notice-and-comment rulemaking process, but the authors noted the agency can instead adopt changes by issuing interim final rules when it finds there is “good cause” and the traditional process is “impracticable, unnecessary, or contrary to the public interest.”
On Aug. 10, CMS told McKnight’s the agency remained dedicated to ensuring nursing home staff and residents have the information they need to improve vaccination rates, but affirmed its ability to enact a mandate.
“CMS has authority to establish requirements to ensure the health and safety of individuals receiving care from all providers and suppliers participating in the Medicare and Medicaid programs,” a spokeswoman said.
Federal regulators previously used a rule change to force hospitals into action: In 1965, federal officials ushered in desegregation by making it a requirement for Medicare eligibility.
Some providers already mandating
Some providers’ self-imposed mandate deadlines already are staged to kick in from August 23 through Nov. 1, as of press time, setting up potential showdowns at staffing-strapped facilities around the country.
Many providers have struggled with what many have called an ethical imperative to mandate the vaccine in their buildings, while others fret what that might do to resistant workers who could walk away from the job rather than get the shots. An industry survey in June said that 94% of providers were already reporting worker shortages.
LeadingAge is part of a coalition of nearly 60 healthcare groups that on July 26 called for vaccine mandates. The American Health Care Association has not issued a similar call but eventually has expressed support for the growing list of providers issuing mandates.
The biggest shoe regarding long-term care providers and mandates dropped when Genesis, the nation’s largest nursing home chain, announced Aug. 2 that it was giving employees three weeks to get at least a first vaccination shot. Others, including PruittHealth followed with similar announcements, though the majority of U.S. long-term care providers have not announced mandates on their own.
