CDC announces revised testing guidelines: Your WellSky COVID-19 Briefing
In this edition
Use the links listed below to jump between sections.
NEWS
COMPLIANCE
New requirements for COVID-19 surveillance for nursing homes
QSO-20-38-NH: Long-term care facility testing requirement details
Other CMS announcements: Medicaid payments and beneficiary tests
Home health and hospice cost reports: COVID-19 update
Home health and hospice post-payment review
CLINICAL
ADMINISTRATIVE
Provider Relief Fund general distribution deadline extended
Accelerated payments: The recoupment dilemma
New Department of Labor FAQs related to school openings
Please note
The views, information, and guidance in this resource are provided by the author and do not necessarily reflect those of WellSky. The content provided herein is intended for informational purposes only. The information may be incomplete, and WellSky undertakes no duty to update the information. It is shared with the understanding that WellSky is not rendering medical, legal, financial, accounting, or other professional advice. WellSky disclaims any and all liability to all third parties arising out of or related to this content. WellSky does not make any guarantees or warranties concerning the information contained in this resource. If expert assistance is required, please seek the services of an experienced, competent practitioner in the relevant field. WellSky resources are not substitutes for the official information sources on COVID-19. Providers should continue to track developments on official CMS and CDC pages, including:
Current cases & maps
This is our last weekly briefing before we move to a monthly schedule. There is a new look for the Centers for Disease Control and Prevention (CDC)’s map, which shows the depth and breadth of reported COVID-19 infections in the U.S. Four states stand out with the highest case counts — California (with nearly 700,000 cases), Florida (more than 600,000 cases), Texas (more than 600,000 cases), and Georgia (more than 250,000 cases). As a country, the U.S. now stands at more than 6 million cases that have resulted in 183,000 deaths — a number that is expected to rise to more than 200,000 in just days. The U.S. still represents a quarter of the 25 million cases worldwide. Recent data analysis shows that infection rates are slowing in the South and West but increasing in the Midwest.
Looking at the newly revamped CDC reporting site, there is now a mobility graph, which can be configured in views for the country as a whole or by individual counties and states. The national view is shown below beginning as of March 1. It’s clear that even though most states have reopened, business is still not being conducted as usual. Workplace mobility briefly rose in July, and it has dropped during the month of August, as outbreaks of COVID-19 have escalated across the country. This trend also coincides with recent news reports that indicate that many previously furloughed workers are now being permanently laid off as the economy stagnates.
New reported cases–by–day in the U.S. have consistently dropped through the first three weeks of August and then plateaued as new cases rose in Midwestern states.
While new case counts plateau, COVID-19 deaths are now, finally, gradually declining.
The New York Times hotspot map shows the trends as former hotspots in the South give way to an increasing number of Midwestern counties that have outbreaks — especially in Iowa, Minnesota, and southern Illinois. Notably, not every southern state has shown improvement in the last week though, as Alabama continues to show an increase in cases.
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News
COVID-19 coverage for the uninsured
Early in the public health emergency, President Trump said that a new program would be established that would “alleviate any concern uninsured Americans may have about seeking coronavirus treatment.” Based on a New York Times article from August 29, it appears that the program has been less than successful. Few seem to know that the program exists, and hospitals are confused by it, often billing individuals for treatment received. It also appears that many people have fallen victim to diagnostic coding errors, which have established a condition other than COVID-19 as primary, thus disqualifying payment of claims that are, in fact, directly related to treatment for COVID-19. Providers from all 50 states have been reimbursed a total of only $851 million from the fund as of last week, with about $584 million of this amount going to actual treatment, and the rest going to testing. The problem is that the Kaiser Family Foundation has estimated that the hospital costs alone for uninsured patients could end up being somewhere between $13.9 billion and $42 billion. Coding accuracy counts for all providers — not just post-acute care.
Are COVID-19 tests too sensitive?
According to a New York Times article, the answer may be “yes.” Many of the nation’s leading public health experts are surprised by this news and that we did not figure this out earlier.
Standard COVID-19 tests in the U.S. are returning positive results for people who may be carrying “insignificant amounts” of the COVID-19 virus. Most are unlikely to be contagious. So, are we testing too many people? The answer to that question, according to most experts, is “no,” but we should be looking at testing through a different lens.
The most frequently used test for COVID-19 is a polymerase chain reaction (PCR) test, which provides a yes or no answer to the question of whether the tested person is positive for the virus. Here is how it works: the test “amplifies genetic matter from the virus” by going through repetitive testing cycles. The fewer the cycles required, the greater the viral load. The greater the viral load, the greater the likelihood of contagion.
In testing data that referenced cycles compiled in Massachusetts, New York, and Nevada, as many as 90% of people tested had insignificant viral loads. In practical terms, this means that of the 45,000 or so people who tested positive, only about one tenth of them really needed to isolate and submit to contact tracing.
Some have suggested that the number of cycles for the tests needs to be reduced — perhaps, significantly — from highs of 40 repetitions to 30 or less. According to the article, “those changes would mean the amount of genetic material in a patient’s sample would have to be 100-fold to 1,000-fold that of the current standard for the test to return a positive result — at least one worth acting on.”
Apparently, the Food and Drug Administration (FDA) does not set cycle limits or suggestions for testing. That is done by the testing labs themselves. Both the FDA and the CDC are “examining” cycle thresholds for policy decisions, with the CDC’s own data suggesting that above 33 cycles it is extremely difficult to detect live virus. As one researcher pointed out, when someone tests positive for the virus it would be very useful to know if they have a high or a low viral load.
From tests performed in New York and Massachusetts, where the labs knew the cycle testing values of each test, it appeared that many tests were identified as positive at a threshold of 40 cycles. But when the cycle thresholds were reduced to 35, half of the tests would no longer be positive. If the cycles were reduced to 30, an even larger percentage of those tested would not be considered positive for the virus.
The consensus? PCR tests seemed like the best testing option at the start of the pandemic, but “for the outbreaks raging now” what is needed are “fast, cheap” and abundant tests that allow frequent testing for everyone who needs a test — even if the tests are a bit less sensitive. According to Dr. Michael Mina, an epidemiologist at the Harvard T.H. Chan School of Public Health, who was interviewed for the NYT article, “It might not catch every last one of the transmitting people, but it sure will catch the most transmissible people, including the super spreaders.”
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Compliance highlights
New requirements for COVID-19 surveillance for nursing homes
Last week, the Trump Administration, through the Centers for Medicare & Medicaid Services (CMS), announced more changes for nursing homes along the lines of testing and reporting requirements for COVID-19. As we reported in prior briefing editions, testing devices are being sent to nursing homes across the country, along with testing kits. The catch is that facilities using those point-of-care devices must report the testing results to the U.S. Department of Health and Human Services (HHS). CMS released its interim final rule on the subject along with a memo outlining the changes at QSO-20-38-NH (more on this below).
According to CMS, “these new requirements strongly support…efforts to boost surveillance of the virus and double down on the commitment to keep nursing home residents safe,” and represent a “dramatic acceleration” of efforts to track and control the spread of COVID-19.
Nursing homes are now required to test staff for COVID-19 as a Condition of Participation (tag F886). In this context, “staff” also refers to individuals who provide services to residents of nursing homes, including hospice workers. Facilities and their hospice counterparts providing end-of-life services to residents should make a point of discussing the new testing policy to ensure compatibility between the facility’s newly imposed obligations and the hospice’s current staff testing policies.
Testing frequencies will be based on “the degree of community spread” for facilities that may be at increased risk.
According to CMS, surveyors are directed to inspect nursing homes for adherence to the new testing requirements. Facilities that are found to be out of compliance will be cited and could face stepped up enforcement sanctions based on the severity of the violation. Civil monetary penalties could range from $400 to $8,000 a day for each instance of noncompliance. Additional regulatory details follow.
QSO-20-38-NH: Long-term care facility testing requirement details
Here are the major points from the most recent interim final rule concerning nursing home testing requirements:
- Facilities are expected to meet the new testing requirements through use of a rapid point-of-care diagnostic testing device or through arrangement with offsite laboratories. Facilities that do their own testing must have a Clinical Laboratory Improvement Amendment (CLIA) waiver.
- Regardless of testing frequency, all staff (all shifts), all residents (daily), and all persons entering the facility from the outside should be tested for COVID-19.
- Individuals with signs or symptoms of COVID-19 should be prioritized first, followed by others. The following table shows the sequence. For outbreak testing, all staff and residents should be tested, and those that test negative should be retested every three to seven days.
- Staff members or others with symptoms must be tested and are expected to be restricted from facility access pending test results.
- Residents with symptoms must also be tested and while test results are pending should be placed on transmission-based precautions (TBP) in accordance with CDC guidance.
- For purposes of the new rule, an outbreak is defined as a new COVID-19 infection in any staff member or resident, although residents who are admitted with a diagnosis of COVID-19 would not trigger an outbreak as it is defined for these rules.
- For people who test positive, repeat testing is not required and should be followed by a symptom-based strategy.
- Facilities should use their county’s positivity rate as of the prior week as the trigger for staff testing frequencies. The data to support these decisions can be found here. Table 2, below, from the memorandum sets forth testing intervals.
- If county positivity rates increase, the facility should test at the frequency associated with the higher level of positivity. If the positivity rate declines, the facility should continue testing at the higher level until the county’s rate has remained at the lower activity level for at least two weeks. This is the minimum testing which may be impacted by state or local directives.
- Facilities must have procedures in place to address testing refusals by staff members. If outbreak testing has been triggered and a staff member refuses to be tested, they must be restricted from entering the facility until outbreak testing has been completed.
- Residents may decline to be tested and, as with staff refusals, facilities must have procedures in place to address resident refusals. Residents who exhibit symptoms when there is a facility outbreak should be placed on or remain on transmission-based precautions (TBP) status.
- Staff members or residents who have recovered from COVID-19 and remain asymptomatic do not need to be retested for three months.
- Orders from a physician or other allowed practitioner must be a prelude to resident testing. This can be accomplished through standing orders based on facility policy.
- Facilities that do their own testing under a CLIA waiver are required to report the testing results for each individual who has been tested based on the following guidelines:
- For symptomatic residents and staff, document the date(s) and time(s) of the identification of signs or symptoms, when testing was conducted, when results were obtained, and the actions the facility took based on the results.
- Upon identification of a new COVID-19 case in the facility (an outbreak), document the date the case was identified, the date that all other residents and staff are tested, the dates that staff and residents who tested negative are retested, and the results of all tests. All residents and staff that tested negative are expected to be retested until testing identifies no new cases of COVID-19 infection among staff or residents for a period of at least 14 days since the most recent positive result.
- For staff routine testing, document the facility’s county positivity rate, the corresponding testing frequency indicated (for example, every other week), and the date each positivity rate was collected. Also, document the date(s) that testing was performed for all staff, and the results of each test.
- Document the facility’s procedures for addressing residents and staff that refuse testing or are unable to be tested, and document any staff or residents who refused or were unable to be tested and how the facility addressed those cases.
- When necessary, such as in emergencies due to testing supply shortages, document that the facility contacted state and local health departments to assist in testing efforts, such as obtaining testing supplies or processing test results.
Other CMS announcements: Medicaid payments and beneficiary tests
CMS announced last week that it has notified state Medicaid agencies of new guidance aimed at flexibilities that could result in increased reimbursement under Medicaid for facilities that implement specific infection control practices, such as designating a quarantine or isolation wing for COVID-19 patients.
The same press release also notes that CMS has revised prior policy concerning COVID-19 testing for Medicare beneficiaries who do not have physician/practitioner orders for testing during the public health emergency (PHE). The revision to the policy specified that each beneficiary may receive one test without a direct order from a physician or qualified practitioner. However, all additional testing must be the subject of a specific order. “This change helps ensure that beneficiaries receive appropriate medical attention if they need multiple tests.”
Home health and hospice cost reports: COVID-19 update
Last week, on August 26, CMS issued an update to its billing guidance and COVID-19 FAQs that address billing issues. Pages 98 to 102 are of most interest to home health and hospice providers; they address cost reporting. Here is the newly added guidance:
How will the Provider Relief Fund (PRF) payments be reported on the Medicare Cost Report in terms of revenue?
All providers must report the PRF payments on the cost report’s statement of revenues for informational purposes. The revenue amount must be identified as “COVID-19 PHE PRF.”
PRF payment amounts must be reported in aggregate on the following forms:
- HHA, form CMS-1728-94, Worksheet F-1, line 31.50
- Hospice, form CMS-1984-14, Worksheet F-2, column 3, line 16.50
- Skilled Nursing Facility, form CMS-2540-10, Worksheet G-3, line 24.50
How will the Small Business Administration (SBA) loan forgiveness amounts be reported on the Medicare Cost Report in terms of revenue?
If a provider receives forgiveness for the SBA loan, or any portion thereof, the Updated: 8/26/2020 pg. 100 provider must report the forgiven amount on the cost report’s statement of revenues for informational purposes. The loan forgiveness amount must be reported in aggregate, on the same cost report forms, worksheets, and lines as noted above for the PRF payments in Question 1. If the provider does not receive forgiveness for the SBA loan, or any portion thereof, the provider reports no forgiven amounts on the Medicare cost report. If the provider pays interest on any portion of the SBA loan, the provider may report the interest expense, similar to other interest expenses, on the cost report.
Should PRF payments offset expenses on the Medicare cost report?
No, providers should not adjust the expenses on the Medicare cost report based on PRF payments received. However, providers must adhere to HRSA’s guidance regarding appropriate uses of PRF payments, in order to ensure that the money is used for permissible purposes (namely, to prevent, prepare for, or respond to coronavirus, and for health care related expenses or lost revenues that are attributable to coronavirus) and that the uses of the PRF payments do not violate the prohibition on using PRF money to reimburse expenses or losses that have been reimbursed from other sources or that other sources are obligated to reimburse.
Should SBA loan forgiveness amounts offset expenses on the Medicare cost report?
No. Do not offset SBA loan forgiveness amounts against expenses unless those amounts are attributable to specific claims such as payments for the uninsured. The Paycheck Protection Program loan administered by the SBA is a loan designed to provide a direct incentive for small businesses to keep their workers on the payroll. The terms and conditions of the SBA loan forgiveness, overseen by the SBA, include employee retention criteria and that the funds must be used for eligible expenses.
Home health and hospice post-payment review
Last week, we reported on CGS and Palmetto guidance regarding the focus of post-payment review in the weeks and months to come. Information from National Government Services (NGS) was not yet available for review, but it is out now.
- For home health, NGS JK and J6 will be reviewing Patient-Driven Groupings Model (PDGM) claims (32X or 33X) between January 1, 2020 and February 29, 2020. The reason code will be shown as 5AAGP for NGS JK and 5WGMP/5CGMP for NGS J6.
- For hospices, NGS JK will be auditing hospice stays in excess of 730 days with a reason code of 5ANKP.
- NGS J6 will be auditing General Inpatient Care services that extend for seven days or longer — Revenue Code 0656 with reason code 5FGFP.
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Clinical highlights
Revised COVID-19 testing guidelines from the CDC
Last week, on August 24, the CDC released newly revised COVID-19 testing guidelines that appear to back away from earlier testing recommendations for individuals who have been exposed to COVID-19 (within six feet of an infected individual for at least 15 minutes) but remain asymptomatic. The announcement reverses earlier guidance that indicated that such individuals should be tested. Now these individuals may not “necessarily need a test.” In addition to being slightly confusing, the new guidelines conflict with some state requirements that obligate providers to test, or arrange for testing of, individuals who report being exposed even when they have no outward symptoms. Many public health officials are simply recommending that hospitals fail to comply. Here is what the guidelines now say:
Considerations for COVID-19 diagnostic (molecular or antigen) testing
- If you have symptoms of COVID-19:
- If your symptoms are mild:
- Your health care provider (physician, nurse practitioner, pharmacist, etc.) may advise a COVID-19 test.
- If you test positive for COVID-19 or do not get tested, you should self-isolate for at least 10 days after symptom onset and at least 24 hours after the resolution of any fever (without the use of fever-reducing medications).
- You should strictly adhere to CDC mitigation protocols in circumstances in which you cannot self-isolate, especially if you are interacting with a vulnerable individual (for example an elderly person or an individual with an underlying health condition). You should adhere to CDC guidelines to protect vulnerable individuals with whom you live.
- If you live with a vulnerable individual, they should be tested.
- If your symptoms are severe or become severe, you should contact your health care provider immediately or seek emergency care.
- If you take a test and test positive, you do not need to repeat a test. Unless your illness required hospitalization, you can return to normal activities (e.g., work or school) after the passage of 10 days from the onset of symptoms and 24 hours from when any fever has subsided on its own (without the aid of any fever-reducing medications).
- If your symptoms are mild:
- If you have been in close contact (within 6 feet) of a person with a COVID-19 infection for at least 15 minutes but do not have symptoms:
- You do not necessarily need a test unless you are a vulnerable individual or your health care provider or state or local public health officials recommend you take one.
- A negative test does not mean you will not develop an infection from the close contact or contract an infection at a later time.
- You should monitor yourself for symptoms. If you develop symptoms, you should evaluate yourself under the considerations set forth above.
- You should strictly adhere to CDC mitigation protocols, especially if you are interacting with a vulnerable individual. You should adhere to CDC guidelines to protect vulnerable individuals with whom you live.
- You do not necessarily need a test unless you are a vulnerable individual or your health care provider or state or local public health officials recommend you take one.
- If you do not have COVID-19 symptoms and have not been in close contact with someone known to have a COVID-19 infection:
- You do not need a test.
- A negative test does not mean you will not contract an infection at a later time.
- If you decide to be tested, you should self-isolate at home until your test results are known, and then adhere to your health care provider’s advice. This does not apply to routine screening or surveillance testing at work, school, or similar situations.
- You do not need a test.
- If you are in a high COVID-19 transmission area and have attended a public or private gathering of more than 10 people (without widespread mask wearing or physical distancing):
- You do not necessarily need a test unless you are a vulnerable individual or your health care provider or state or local public health officials recommend you take one.
- A negative test does not mean you will not develop an infection from the gathering or contract an infection at a later time.
- You should monitor yourself for symptoms. If you develop symptoms, you should evaluate yourself under the considerations set forth above.
- You should strictly adhere to CDC mitigation protocols, especially if you are interacting with a vulnerable individual. You should adhere to CDC guidelines to protect vulnerable individuals with whom you live.
- If you are tested, you should self-isolate at home until your test results are known, and then adhere to your health care provider’s advice.
- You do not necessarily need a test unless you are a vulnerable individual or your health care provider or state or local public health officials recommend you take one.
- If you work in a nursing home or a long-term care facility:
- You will need to be tested, unless you have already been tested as part of your facility’s operational plans.
- You need to be tested if you are symptomatic. You must not go to work until your test results are known. If you test positive, unless your illness required hospitalization, you can return to work after the passage of 10 days from the onset of symptoms and 24 hours from when any fever has subsided on its own (without the aid of any fever-reducing medications).
- You will need testing if there is an outbreak in your facility (i.e., a new COVID-19 infection in any staff or any nursing home-onset of COVID-19 in a resident), and you will need to be tested at regular intervals until the outbreak has been mitigated.
- The higher the incidence rate in the county in which you live or work, the more frequently you will need to be tested.
- Results of testing will be used to inform infection control interventions at your facility, including decisions regarding resident placement and work exclusions.
- Follow any additional guidance from State and local public health officials and the Centers for Medicare and Medicaid Services (CMS).
- If you live in or receive care in a nursing home or a long-term care facility:
- You will need to be tested, unless you have already been tested as part of your facility’s operational plans.
- You need to be tested if you are symptomatic. You must self-isolate until your test results are known. If you test positive, unless your illness required hospitalization, you can return to normal activities after the passage of 10 days from the onset of symptoms and 24 hours from when any fever has subsided on its own (without the aid of any fever-reducing medications).
- You will need testing if there is an outbreak in your facility and you will need to be tested at regular intervals until the outbreak has been mitigated.
- You will need to be tested more frequently if you leave the facility on a regular basis (e.g. for dialysis or frequent medical/other appointments).
- Results of testing will be used to inform infection control interventions at your facility, including decisions regarding resident and patient placement.
- Follow any additional guidance from state and local public health officials and the CMS.
- If you are a critical infrastructure worker, health care worker, or first responder:
- You may need to get a test, according to your employer’s guidelines.
- Even if you have a negative test, you should, at all times, take special care to monitor yourself for symptoms and strictly adhere to CDC mitigation protocols.
- State and local public health officials may advise specific people, or groups of people, to be tested. You should follow this advice.
- It is important to realize that you can be infected and spread the virus but feel well and have no symptoms.
- In areas where there are limited number of new cases, State or local public health officials may request to test a small number of asymptomatic “healthy people,” particularly from vulnerable populations.
- If there is significant spread of the virus in your community, State or local public health officials may request to test more asymptomatic “healthy people,” particularly from vulnerable populations.
- For example, certain settings can experience rapid spread of COVID-19. This is particularly true for settings with vulnerable populations in close quarters for extended periods of time (e.g., hospitals, nursing homes, and long-term care facilities).
- As discussed above, those responsible for managing infection in such settings should adopt measures to facilitate the early identification of infected individuals, including initial testing of everyone in the setting, periodic (e.g., weekly) testing of everyone in the setting, and testing of new or returning entrants into the setting.
- As discussed above, those responsible for managing infection in such settings should adopt measures to facilitate the early identification of infected individuals, including initial testing of everyone in the setting, periodic (e.g., weekly) testing of everyone in the setting, and testing of new or returning entrants into the setting.
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Administrative highlights
Provider Relief Fund general distribution deadline extended
The application deadline for a phase 2 general distribution has been extended to September 13, 2020 (previously August 28). This is the funding available for Medicaid providers and Medicare providers who did not receive funding through the first distribution.
To be eligible to apply, post-acute providers must have either:
- Billed Medicare fee-for-service during the period of January 1, 2019 – December 31, 2019; or
- Be a Medicare Part A provider that experienced a change in ownership and billed Medicare fee-for-service in 2019 or 2020 that prevented the otherwise eligible provider from receiving phase 1 General Distribution payment
- Billed Medicaid / CHIP programs or Medicaid managed care plans for health-related services between January 1, 2018 – December 31, 2019.
Additionally, to be eligible to apply, the applicant must meet all of the following requirements:
- Filed a federal income tax return for fiscal years 2017, 2018, 2019; or be exempt from filing a return
- Provided patient care after January 31, 2020 (Note: patient care includes healthcare services and support, as provided in a medical setting, at home, or in the community)
- Did not permanently cease providing patient care directly or indirectly
- Did not receive a previous General Distribution payment totaling approximately 2% of annual patient revenue
Receipt of funds from SBA and the Federal Emergency Management Agenc (FEMA) for coronavirus recovery or of Medicaid home and community-based services (HCBS) retainer payments does not preclude a healthcare provider from being eligible.
Once a provider determines eligibility, its Tax ID Number must be validated. Following application for funding, the provider must attest to receipt of the funds and must be prepared to report details on how funds were used.
Accelerated payments: The recoupment dilemma
There were hopes for a reprieve from the recoupment of accelerated payments received by many post-acute providers in the early days of the public health emergency. However, respite has not arrived in the form of additional stimulus guidance from Congress. Stories are now starting to surface about rural hospitals being exceptionally burdened by the repayment schedule that came with their requests for accelerated payments back in March and April. Kaiser Health News has reported that hospitals serving rural areas, especially in the South, lost an estimated 70% of their income due to the effects of the pandemic. Mark Holmes, director of the Cecil G. Sheps Center for Health Services Research at the University of North Carolina-Chapel Hill, has pointed out that “we know closure[s] lead to high mortality pretty quickly. That’s pretty clear.”
A big problem, we think, is that some skilled nursing facilities not part of a larger group, and many small, thinly capitalized home health agencies may not be far behind. Consider that, of the $100 billion that was earmarked for this program, $5 billion went to home health and skilled nursing facilities and both were obligated to begin the repayment process on the 121st day following receipt of funds. That money — $5 billion — represents about 13% of all Medicare fee-for-service outlays last year.
For a provider that borrowed money on April 15, just before the program was collapsed by CMS, the repayment period ostensibly began in mid-August and will continue through the first week or two of March, or for 210 days or until the funds are fully repaid, whichever comes first. Even with the benefit of Provider Relief Funds, there will be many providers that will be hard pressed, as a result of decreased admissions and/or continuing expenditure increases, to easily forego payments on new claims as a means of satisfying these obligations. Rural hospitals, many of which have only days, not months, of operating cash on hand are already feeling the pinch. Post-acute providers won’t be far behind unless we can convince Washington to intervene. For all of us, now might be a good time to dial up our Congressional representatives to make the case for a bit of additional relief sooner rather than later. Remind them that one day they and/or their loved ones might also need post-acute care, and providers like you must be able to provide it.
New Department of Labor FAQs related to school openings
Readers may recall that we published news about a U.S. District Court ruling regarding the Families First Coronavirus Response Act (FFCRA) that set aside the U.S. Department of Labor’s (DOL) definition of “healthcare provider.” Here is the refresher. Under the DOL rules published in conjunction with FFCRA, all employees of post-acute providers are included in the definition of “healthcare provider” and are, as a result, exempt from the provisions of the act related to leave requirements. Based on legal action that was brought against the DOL, the U.S. District Court for the Southern District of New York vacated several of the provisions contained in the FFCRA including the expansive definition of who is — and isn’t — a healthcare provider. This decision, at least thus far, only affects counties in southern New York, but the decision can, and probably will, set precedent in other areas of the country as other cases make their way through the courts. Consequently, my advice — both then and now — is pretty simple. To be on the safe side, get legal advice before you determine policy around who is, and is not, eligible for family leave related to a COVID-19 issue.
In that vein, last week, the DOL came out with three additions to their FFCRA FAQs related to whether parents with children in hybrid or remote school attendance arrangements would qualify for leave under the FFCRA. Here are the three questions and answers:
1. My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances?
Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.
2. My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances?
No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her.
Also, as explained more fully in FAQ 98 [the FAQ response above], if your child’s school is operating on an alternate day (or other hybrid-attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively “closed” to your child on those days.
3. My child’s school is beginning the school year under a remote learning program out of concern for COVID-19 but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances?
Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child’s school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations.
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In closing
Usually in this section of the briefing I try to provide lighter content because so much of what we report is heavy and a little sad. This week, though, I found a different sort of article that speaks volumes about the value of nurses everywhere — the people we rely in the toughest times. The STAT article is titled “My Severe COVID-19: It felt like dying in solitary confinement.” The article is about a nurse who “saved” a doctor. The article starts out, “One day I was a healthy 44-year-old doctor, CEO of a health care company…then I was a COVID-19 patient a few shallow breaths away from being put on a ventilator. A nurse saved me from that fate.” The article goes on:
“The hospital was fantastic. I knew many of the doctors, including the chief medical officer and the chief of cardiology. They would walk by the window of my room, knock on the glass, then call my cell and reassure me I was in good hands. . . .
On Tuesday night, my ICU nurse was a 6-foot-tall woman from Jamaica named Helen, though I’m pretty sure she had been a drill instructor in another life. If she wanted me to sit on the edge of the bed and I said ‘no,’ we reached an understanding: I sat on the edge of the bed. Helen started her shift by changing my gown and sheets, then helped me take a chlorhexidine towel bath. Those small acts of kindness felt wonderful.
Despite having trouble breathing, I sometimes fell asleep. Then my breathing would slow and my blood oxygen level would drop to unsafe levels. Helen would open the door to my room and yell, ‘Chris, c’mon. You’ve got to breathe. Breathe for me.’ I knew what she was doing: waking me up so I would breathe faster. When I took faster breaths, my blood oxygen would rise and the alarm attached to my pulse oximeter would stop chirping.
If I couldn’t breathe on my own, I would be put on a ventilator and, if that happened, my chance of dying would skyrocket. I believe that Helen saved my life that night.”
I’ve known many rather incredible nurses in my career, and some come to mind as I write this ending to the last weekly briefing. And for all of you — and not incidentally for the people who support you and the work you do every day — I have the same wish. May you remain healthy, happy, full of commitment for what you do, and ready to greet the next challenge which surely will come. More to come in a month. In the interim, be careful out there. You are nothing short of awesome!