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September 10, 2020

New Health Director? Not So Fast. Today at his press conference, Govenor Mike DeWine announced Dr. Joan Duwve, a native Ohioan and public health official working most recently in South Carolina, as his pick to be the next Director of Health, following the resignation of Dr. Amy Acton and another interregnum by Lance Himes. Some six hours later, the Governor reported that Dr. Duwve changed her mind for personal reasons. Back to the drawing board.

DD Residential Waiver Supplemental Payment Coming Soon. As we reported previously, the Department of Developmental Disabilities (DODD) is providing a Medicaid supplemental payment to providers of homemaker/personal care, on-site/on-call, and shared living services. The supplemental payment is meant to assist with increased costs related to COVID-19. Earlier this week, DODD shared that they expect to make direct deposits or to mail paper checks on September 18, with a back-up date of September 21. DODD’s Debbie Hoffine said providers will receive payment through the same method that they receive their normal claims payments. 

ODH Announces Next Week's SNF Testing Schedule. Answering at least temporarily whether the state is backing off the mandatory, every-two-week testing process for SNF staff, the Department of Health (ODH) posted the schedule for next week. In the Enhanced Information Dissemination and Collection notice about the schedule, ODH added:

All facilities that were previous assigned to Battelle have been reassigned to the Ohio Department of Health Lab. No other changes in lab assignments have been made. Facilities that switched from Battelle to ODH that already filled out their lab requisitions do not need to fill out new forms; the ODH lab will accept your forms with the incorrect lab assignment.

The state also is beginning user testing of its batching process for entering employee information into the ODH laboratory requisition portal.

Interpreting Federal Testing Guidance for SNFs: Documentation. One common question about the point-of-care (POC) antigen testing machines that the Department of Health and Human Services (HHS) is distributing to SNFs and the Centers for Medicare and Medicaid Services (CMS) is encouraging them to use is how to document testing conducted through the machines. This is a particular concern with the BD machine, which does not have a simple way to extract data from the unit. The question is whether SNFs are required to have a print-out or other documentation that the machine actually produces. The CMS Quality, Safety, and Oversight (QSO) letter 20-38-NH does not mandate this. See page 9, where the QSO specifies the following documentation requirements for routine staff testing:

For staff routine testing, document the facility’s county positivity rate, the corresponding testing frequency indicated (e.g., 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.

The QSO does not require independent verification of the date of testing or the results. The QSO has similar language for outbreak testing:

Upon identification of a new COVID-19 case in the facility (i.e., 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.

Again, CMS could have established a requirement to obtain and to maintain documentation from the POC unit itself, but did not.

Interpreting Federal Testing Guidance for SNFs: Contractors. A huge area of controversy and concern relative to QSO 20-38 is its expansive definition of facility staff, which includes not only employees but also "consultants, contractors, volunteers, and caregivers ...." By including personnel who are not employees in the definition, the QSO applies its various requirements to these individuals, for instance, the routine testing frequency and who can trigger outbreak testing. Because of these ramifications, it becomes very important to determine exactly who is included in the definition of facility staff. The QSO does not enumerate who is and who is not covered, but the words that immediately follow the previously-quoted list of personnel modify and explain the list: "who provide care and services to residents on behalf of the facility ...." These words clearly seem to exclude people who do not provide care and services, such as  delivery personnel and tradespeople performing repairs, as well as emergency medical services and first responders who provide care and services but do not do so on behalf of the facility.

Although it is more of a stretch, the interpretation of the "on behalf of" language could be expanded to exclude, for example, phlebotomists and radiology technicians (and even podiatrists, dentists, and attending physicians) who arguably are performing services on behalf of an independent health care provider entity and may not be considered to have contractual or consulting relationships with the facility. Because of their direct patient contact and the potential for spreading virus, we would not counsel members to exclude health care personnel who are providing care or services to patients in the facility without further clarification from CMS, but an argument could be made.

Further, the QSO includes this provision: "facilities should prioritize those individuals who are regularly in the facility (e.g., weekly) and have contact with residents or staff." Does this mean CMS intends to require testing only when a contractor or consultant (or employee, for that matter) is in the facility at least weekly and has contact with residents or staff? Again, without further clarification from CMS, we are not comfortable with reading the word "prioritize" as meaning "test," but it is a plausible interpretation.

The foregoing are our thoughts on the QSO as written. We will inform members of any further guidance that emerges.

CMS Provides Grace Period for CLIA Reporting. One of the aspects of using POC testing machines, such as those HHS is shipping to SNFs, is that the provider must report data to ODH about the test results, in addition to reporting that otherwise is required. This reporting is mandated under the Clincial Laboratories Improvement Amendments (CLIA). We explained the CLIA requirements most recently in last Friday's SNF News Bites. To assist with the transition to using POC machines for regular staff testing, CMS provided a three-week grace period for CLIA reporting that began September 2. See slide 15 from the slide deck for CMS's recent national call on SNF testing. Nonetheless, we recommend that if possible, you comply with the reporting requirements so you are familiar with them when they become mandatory.

Key AHCA Resources on SNF Testing. AHCA has provided and will continue to provide resources for SNF members on the new CMS testing requirements. Today, we would like to point out two that may be particularly helpful: "CMS Testing Mandate: How to Get Started" and "COVID-19 Testing Requirements in Nursing Homes - Frequently Asked Questions and Quick Links." The first guidance document came out last week and reflects the overall structure of the testing requirements while the second compiles questions that mainly came from this week's AHCA webinar on testing.