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June 15, 2020

ODH releases testing guidance. On the eve of National Guard testing at the first "sprint" of SNFs under the state's mandated testing program for facility staff, the Department of Health (ODH) posted a spate of documents to the Enhanced Information Dissemination and Collection system. These documents include the following:

Of particular interest is the FAQ, which addresses a number of issues on which we had heard the state's position verbally, but did not have it in writing. For instance, ODH confirms that laboratory fees are to be billed to Medicare, Medicaid, and commercial insurance, with a to-be-defined program for uninsured individuals, and that facility medical directors are expected to write orders for patient and employee tests. Also significant is the contingency and crisis staffing guidance, which are the return-to-work criteria. This document generally restates Centers for Disease Control and Prevention guidelines, but puts a black box and red warning around the provision on using asymptomatic positive staff to care for non-COVID-19 patients when there is a staffing shortage.

CMS backs off on reporting fines. OHCA member SNF providers and AHCA reported that starting Friday, the Centers for Medicare and Medicaid Services (CMS) began to rescind civil money penalties (CMPs) that had been imposed on SNFs for allegedly not reporting data timely or completely to the National Healthcare Safety Network. We understand that rescissions occurred in two situations. In some cases, CMS proactively removed the fines whether or not the provider filed for an independent informal dispute resolution (IIDR). These cases appear to be when the provider in fact reported, but may not have reported completely or on time. In other cases, we hear CMS eliminated the CMP after quickly reviewing an IIDR request. These cases may involve inability to register with NHSN. At this time, we only can verify from OHCA members the first scenario. If you have a CMP, please check the Quality Improvement and Evaluation System (QIES) to see if a rescission letter is there. If not, you still should file an IIDR request if you have not already done so.

ODM emergency rules mostly reflect Ohio’s 1135 waiver. As we reported last week, Governor Mike DeWine issued an executive order authorizing the Department of Medicaid (ODM) to adopt emergency rules for Ohio’s approved 1135 waiver as well as the Centers for Medicare and Medicaid Services (CMS) COVID-19 blanket waivers.

  • Among the emergency rules, OHCA found one that does not go as far as the waiver by allowing all new SNF admissions to be treated as exempted hospital discharges for Pre-Admission Screening and Resident Review (PASRR). Instead, the emergency rule, OAC 5160-3-15.1, only waives face-to-face requirements, most notably by allowing Level II determinations to be conducted through a telephonic or video conference assessment.
  • Likewise, the nursing facility (NF)-based level of care (LOC) rule, OAC 5160-3-14, also removes all face-to-face assessments and allows telephonic, video conference, or desk reviews.
  • Another emergency rule, OAC 5160-1-17.4, suspends all Medicaid provider agreement revalidations during the COVID-19 emergency. 
  • Regarding SNF bed-hold days, OAC 5160-3-16.4 permits bed-hold payments for Medicaid-eligible residents who, due to COVID-19, exceed thirty bed-hold days but intend to return before exceeding sixty bed-hold days.
  • With respect to the ventilator program, OAC 5160-3-18 states that while the ODM 10228 form is still required for centers with ventilator patients, a provider who had no vent patients during the reporting period does not have to submit the quarterly report. In addition, ODM will not select a random sample of vent providers for compliance review. 
  • Finally, regarding calculating case-mix scores, OAC 5160-3-43.3 states that if a SNF does not submit data timely, ODM may (as opposed to shall) assign a penalty score of 5% less than the quarterly facility average total case-mix score for the preceding calendar quarter.

Please take heed: Ohio providers reported for handling of resident stimulus checks. Unfortunately, concerns with SNF and assisted living providers' use of beneficiaries’ Economic Incentive Payments (EIPs - stimulus checks) continue to bubble up in the press and in our nation’s capitol. House Ways and Means Committee leaders sent letters to CMS and AHCA/NCAL requesting responses on efforts to prevent misuse of funds. Senate Finance Committee members likewise wrote the Office of the Inspector General requesting issuance of a scam alert. In response, CMS released guidance and a statement on the topic that we published last week. 

It is our understanding from AHCA that Ohio is one of the states where mishandling of resident stimulus checks has been reported. It appears the issue centers around using the EIP to pay an outstanding balance owed to the facility. As we reported in the June 1 COVID-19 Update, ODM's Cheryl Guyman made it clear that the resident has to approve applying their EIP to an outstanding balance. She encouraged facilities to maintain documentation of the approval, witnessed by someone who is not an employee of the facility. Coercion in any way is not permitted. AHCA provided an EIP FAQ for further guidance.