State, Federal Nursing Home Testing Rules Raise Questions

Sep 4, 2020

Florida’s long-term care industry and a top state regulator are befuddled by what appears to be competing state and federal regulatory requirements for conducting coronavirus tests of visitors and staff at long-term care facilities.

The issue involves whether a rule published by the federal Centers for Medicare and Medicaid Services conflicts with three state emergency rules and a new executive order lifting a moratorium on visitation at nursing homes and assisted living facilities.

“I think we all continue to have some unanswered questions about next steps,” state Agency for Health Care Administration Secretary Mary Mayhew said on a Thursday phone call with long-term care providers.

The federal rule requires testing, with the frequency dictated by coronavirus positivity rates in the counties where facilities are located. The state rules require testing of facility staff every two weeks.

“We are continuing to work on some of these issues, obviously evaluating how it aligns with the emergency rules the state put in place for staff testing,” Mayhew said referring to a contract with the company Curative, which provides testing supplies. “But we are continuing to work with HHS (the federal Department of Health and Human Services) and others to get additional information on the  proposed rule to further inform all of you and help to support alignment with the state’s requirement regarding staff testing.”

The federal government announced it is directing $127 million to nursing homes to assist with testing and infection-prevention efforts. It also put forward the rule, which went into effect Wednesday. Under it, testing of long-term care visitors and staff is required monthly in counties that have under a 5 percent COVID-19 positivity rate. It increases to weekly and twice weekly for facilities located in counties with positivity rates of between 5 and 9 percent and rates of 10 percent or more, respectively.

According to federal data, nursing homes in 20 Florida counties would be required to test twice weekly. But Mayhew said issues with the data include time lags.

The Florida Health Care Association, meanwhile, maintains the federal testing policy runs afoul of the new state executive order lifting the ban on nursing home visitation. The executive order does not require visitors to be tested for COVID-19 prior to entering facilities, not even “essential” caregivers who help residents with daily activities such as bathing and eating.

Tom Parker, the association’s director of reimbursement, said the nursing-home industry group thinks the federal rule requires essential caregivers to be tested. Parker asked Mayhew whether nursing facilities would be authorized to shift the testng costs to the essential caregivers or residents if mandatory testing was required.