The transfers and discharges of COVID-19 positive and COVID-19 negative residents are challenging for skilled nursing facilities (“SNFs”) and/or nursing facilities (“NFs”), (in this alert, SNFs and NFs are collectively Long‑Term Care Facilities “LTC Facilities”) as they navigate the evolving government guidance and delicate communication and public relations areas. On April 13, 2020, the Quality, Safety & Oversight Group at the Centers for Medicare & Medicaid Services (“CMS”) issued a memorandum entitled “2019 Novel Coronavirus (“COVID-19”) Long-Term Care Facility Transfer Scenarios” (“QSO Memo”) that clarified guidance offered in the prior Section 1135 waivers for SNFs and NFs regarding discharge and transfer of residents.
On April 2, 2020, CMS and Centers for Disease Control released the “COVID-19 Long-Term Care Facility Guidance,” which recommended certain immediate actions to keep residents safe and prevent transmission of COVID-19.
These actions include that LTC Facilities should use separate staffing teams for COVID-19-positive residents to the best of their ability, and work with state and local leaders to designate separate LTC Facilities or units within a LTC Facility to separate COVID-19 negative residents from COVID-19 positive residents and individuals with unknown COVID-19 status. This may mean LTC Facilities will need to transfer residents:
- Within the LTC Facility;
- To another long-term care LTC Facility; or
- To other non-certified locations designated by the state.
CMS Blanket Waivers
Recently, to facilitate cohorting of residents based on COVID-19 status, CMS issued blanket waivers for certain portions of the CMS Requirements for LTC Facilities. These include a physical environment waiver to temporarily allow rooms not normally used as a resident’s room in a certified SNF to be used to accommodate beds and resident care. These also include certain transfer and discharge requirements that are waived solely for the purposes of cohorting.
CMS Illustrations of Transfers and Discharges
The QSO Memo provides additional guidance and illustrations for transferring or discharging residents between facilities.
1) Transfers and Discharges when creating COVID-19 only facilities.
Scenario: Two or more certified LTC Facilities transfer residents between the two LTC Facilities to create a COVID-19 and a non-COVID-19 facility, which is allowed under CMS blanket waivers without additional approval.
Who bills? Each certified facility bills Medicare for the residents in their facility.
What is CMS waiving? CMS is waiving the following requirements:
- The right to be informed in advance of the risks and benefits of proposed care and to choose the alternative or option he or she prefers. 42 CFR 483.10(c)(5).
- Notice before transfer. 42 CFR 483.15(c)(3).
- Timing of the notice. 42 CFR 483.15(c)(4)(ii).
- Contents of the notice. 42 CFR 483.15(c)(5)(i) and (iv).
- Room changes. 42 CFR 483.15(c)(9).
- Notice of bed-hold policy and return. 41 CFR 483.15(d).
- Baseline care plans developed within forty‑eight hours of a resident’s admission. 42 CFR 483.21(a)(1)(i).
- Comprehensive care plan development within forty‑eight hours of a resident’s admission. 42 CFR 483.21 (a)(2)(i).
- Comprehensive care plan must be developed within seven days after the comprehensive assessment. 42 CFR 483.21(b)(2)(i).
It is important to note that, in 42 CFR 483.10, CMS is only waiving the requirement under 42 CFR 483.10(c)(5) that a facility provides advance notification of options relating to the transfer or discharge to another facility. Otherwise, all other requirements related to 42 CFR 483.10 are not waived.
In addition, in 42 CFR 483.15, CMS is only waiving the requirement, under 42 CFR 483.15(c)(3), (c)(4)(ii), (c)(5)(i) and (iv), and (d), for the written notice of transfer or discharge to be provided before the transfer or discharge. The notice must still be provided and be provided as soon as practicable.
In general, if two or more LTC Facilities want to transfer or discharge residents between those LTC Facilities for the purpose of cohorting, those LTC Facilities do not need any further approval to accomplish this. This new guidance should allow the transfer or discharge of residents to other LTC Facilities solely for the following cohorting purposes for the transfers of residents:
- With symptoms of a respiratory infection or confirmed diagnosis of COVID-19 to another LTC Facility that agrees to accept each specific resident and can care for that resident;
- Without symptoms of a respiratory infection or confirmed to not have COVID-19 to another LTC Facility that agrees to accept each specific resident, and can care for that resident to prevent them from acquiring COVID-19; or
- Without symptoms of a respiratory infection to another LTC Facility that agrees to accept each specific resident to observe for any signs or symptoms of a respiratory infection over fourteen days.
2) Transfer residents from one or more certified LTC Facilities to a non‑certified location that is state-approved.
Scenario: Transfer residents from one or more certified LTC Facilities to a non-certified location that is state-approved and where residents must be cared for by LTC Facility staff.
Who bills? Medicare reimbursement remains with the LTC Facility caring for patients in the new location. This location could be utilized by multiple LTC Facilities, providing care with their own staff.
What is CMS waiving? Provided that the state has approved the location as one that sufficiently addresses safety and comfort for patients and staff, CMS is waiving the physical environment requirements under 42 CFR 483.90 to allow for a noncertified LTC Facility building to be temporarily certified and available for use by a LTC Facility in the event there are needs for isolation for COVID-19 positive residents, which may not be feasible in the existing LTC Facility structure. The purpose of that new location is to ensure care and services during treatment for COVID-19 are available while protecting other vulnerable adults.
These requirements are also waived when transferring residents to another facility, such as a COVID-19 isolation and treatment location, with the provision of services “under arrangements,” as long as it is not inconsistent with a state’s emergency preparedness or pandemic plan, or as directed by the local or state health department. In these cases, the transferring LTC Facility need not issue a formal discharge, as it is still considered the provider and should bill Medicare normally for each day of care. The transferring LTC Facility is then responsible for reimbursing the other provider that accepted its resident(s) during the emergency period.
In the end, if a LTC Facility would like to transfer or discharge residents to a non-certified location for the purposes of cohorting, they need approval from the state agency.
3) Transfer of COVID-19 residents to federal/state-run facilities.
Scenario: Transfer of COVID-19 residents to federal/state-run facility staffed with federal or state personnel. This could include transfers by Order of Governmental Authority (e.g., FEMA operated site or location).
Who bills? No reimbursement to the LTC Facility.
What is CMS waiving? No waiver necessary as long as the transfer is not inconsistent with a state’s emergency preparedness or pandemic plan, or as directed by the local or state health department.
Next Actions: Policy and Practice Reviews Needed
- LTC Facilities should carefully review these paths as they consider opening COVID-19-only locations.
- LTC Facilities should review and revise their procedures for transfer to another LTC Facility, a non-certified location that is state-approved and to a federal or state-run facility.
- LTC Facilities should carefully communicate these procedures to residents, staff, vendors and families.
- LTC Facilities should educate staff that only portions of the Requirements for Long Term Care Facilities are waived under the blanket waivers and remain compliant with those portions still in effect.
If you have questions or would like additional information about this topic, please contact:
- Sean Fahey at (317) 977-1472 or firstname.lastname@example.org;
- Todd Selby at (317) 977-1440 or email@example.com;
- Brian Jent at (317) 977-1402 or firstname.lastname@example.org; or
- Your regular Hall Render attorney.
More information about Hall Render’s Post-Acute and Long-Term Care services can be found here.
Hall Render’s attorneys and professionals continue to maintain the most up-to-date information and resources at our COVID-19 Resource page, through our 24/7 COVID‑19 Hotline at (317) 429-3900 or by contacting your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.