May 21, 2020
Government Investigations & White Collar Defense Alert
The Centers for Medicare & Medicaid Services announced new guidance to help state and local officials identify factors to inform the timeline for reopening nursing homes and other long-term care facilities.
On May 18, 2020, the Centers for Medicare & Medicaid Services (CMS) announced new guidance to help state and local officials identify factors to inform the timeline for reopening nursing homes and other long-term care facilities (LTCFs). As many states begin a phased reopening of businesses, CMS recommends certain critical steps before relaxing the restrictions that have been imposed on LTCFs to prevent the spread of COVID-19. CMS’ stated goal is for communities to have a plan in place for when LTCFs may safely reopen.
One critical step CMS recommends is that all residents and staff receive test results from a base-line test for COVID-19 before any restrictions are loosened, with staff testing to continue on a weekly basis thereafter. States are encouraged to survey those LTCFs that have had significant outbreaks of COVID-19 to ensure the LTCFs are taking steps to mitigate the spread of the virus and ensure the safety of residents and staff. CMS also recommends that even as the rest of the community implements the initial phases of government reopening plans, LTCFs remain at the highest level of mitigation and should not de-escalate or relax restrictions until the community progresses to later phases of reopening. This will ultimately translate to LTCFs being among the last to reopen in the community.
State and local leaders are encouraged to consider the following factors when determining whether restrictions on LTCFs should be relaxed:
CMS cautions that these factors should be reexamined periodically, and that facilities may need to reconfigure reopening plans as COVID-19 continues to impact communities in different ways. CMS’ guidance also attaches a sample plan, Recommended Nursing Home Phased Reopening for States, which complements the federal Opening Up America Again phased reopening plan,  but incorporates stricter criteria in light of the heightened risk of infection to LTCF residents and staff. Each phase of the sample plan outlines criteria for implementation of that phase, visitation and service considerations, and surveys to be performed during each phase. Notably, CMS’ sample plan contemplates that with the exception of compassionate care situations during Phases One and Two of the federal plan, LTCFs will remain closed to visitors until Phase Three. Reopening to visitors and other topics are addressed in CMS’ FAQs.
The Appendix to CMS’ guidance advises that with respect to the surveys to be performed during each phase of its sample plan, states should consider certain criteria when prioritizing which facilities to survey first once a LTCF moves into a new phase. There are two lists of criteria—one for surveys investigating complaints and one for standard recertification surveys—the latter of which includes as the top priority, “[f]acilities that have had a significant number of COVID-19 positive cases.” Ultimately, CMS states:
We recognize that there are many different scenarios or combinations of timing of surveys and types of noncompliance that will exist. We defer to [s]tates for final decisions on scheduling surveys consistent with CMS survey prioritization guidelines.
As state and local officials formulate and implement reopening plans specific to their communities, LTCFs should consult CMS guidance, as well as other federal, state, and local government-issued guidance to ensure they are taking adequate steps to control the spread of COVID-19 in their facilities.  Facilities are advised to ensure that any plans to reopen fully incorporate not only CMS’ guidance but mandates from state and local regulators as well.
Additionally, as we discussed in an earlier client alert, LTCFs are likely to face increased government enforcement action in the wake of the COVID-19 crisis. LTCFs are therefore advised to consider taking steps, if they have not already, to prepare for success in the event of a government audit, investigation, enforcement action, or lawsuit.
We will continue to monitor COVID-19 developments affecting LTCFs and will provide updated guidance.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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