Biden Administration’s COVID-19 Action Plan Impact on Senior Living
Home and Community-Based Services (HCBS):
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IDPH Monthly Meeting Recap
LeadingAge Illinois and the associations continue monthly meetings on COVID issues with the Illinois Department of Public Health (IDPH), in addition to other meetings on specific issues. Here is a recap of last week’s meeting.
- Emergency rules will be filed soon on staff vaccinations.
- The Governor has called for state employees to be vaccinated, which would include surveyors. IDPH currently provides for surveyor testing on a weekly basis and the frequency may increase for those who are unvaccinated.
- Unvaccinated staff in buildings should get tested on a weekly basis.
- Facilities may require visitors to be tested if they are not vaccinated.
- Staff may not work in a facility if they are unvaccinated by the deadline and refuse testing. Employers can determine the actions to take on their employment at the facility. It is recommended that you check with your legal counsel in these instances.
- IDPH reported that they can no longer meet the testing needs for facility staff who choose to test rather than vaccinate.
- You can see an FAQ on the federal mandate for nursing homes put together by LeadingAge National here.
LeadingAge Illinois again urged for reinstatement of the Temporary Nursing Assistant (TNA) program. IDPH reported that they are internally talking about it and looking at the number of Certified Nursing Assistants (CNAs) that joined the workforce over the last year and see who used the TNA program previously (they estimate about 175 facilities). IDPH is not considering re-engaging strike teams at this time.
IDPH is working with their IT team on getting PNJ data directly from CMS and inputting into their staffing system. Facilities would still need to enter their census information, but PBJ data submitted to the federal government could be used to fulfill the new state requirement for submitting data to IDPH.
- September 19: Governor Pritzker mandated that all healthcare workers are required to receive the initial dose of the COVID-19 vaccine by September 19.
Biden Administration’s COVID-19 Action Plan Impact on Senior Living
In an address from the White House recently, President Biden announced a six-pronged COVID-19 action plan, the “Path out of the Pandemic,” and issued an Executive Order requiring federal employees to be vaccinated without a testing alternative. The action plan includes vaccination requirements for workers in most health care settings that receive Medicare or Medicaid reimbursement, in addition to all workers at companies with 100 or more employees. The requirements will become effective upon publication in the federal register, expected in October. Argentum staff and outside counsel are actively reviewing the proposal and its impact on the senior living industry, including the relation to previously issued federal guidance.
Argentum is supportive of efforts to increase vaccination rates as the most effective means of protecting against COVID-19, but we have several concerns regarding the practicalities of the administration’s sweeping federal mandates. As an industry, senior living has led vaccination efforts with overall rates higher than 99% of all U.S. counties with 90% of residents and 80% of staff vaccinated, and last month the Argentum Board of Directors issued a statement in support of employer-based vaccine mandates in the industry.
However, we have repeatedly called on the administration to provide reasonable support to operators, including with the ongoing efforts to administer booster doses, and targeted and equitable relief to offset the financial burdens incurred by providers. We have stressed that adding new financial and administrative burdens to providers only exacerbates the existing challenges facing the industry. We will continue to push the administration to recognize the critical needs of senior living providers and to adopt reasonable policies that reflect good faith efforts to meet the overall objectives of increased vaccination.
The Biden administration’s action plan includes six primary components:
- Vaccinating the Unvaccinated
- Further Protecting the Vaccinated
- Keeping Schools Safely Open
- Increasing Testing & Requiring Masking
- Protecting Our Economic Recovery
- Improving Care for those with COVID-19
Requirements for Health Care Settings:
The Centers for Medicare & Medicaid Services (CMS) is expected to release an Interim Final Rule with Comment Period in October that will apply to all Medicare and Medicaid certified facilities. The rule would expand on a rule announced on August 18 that would have more narrowly applied to nursing homes (that rule has not yet been promulgated and some senior living facilities that participate in Medicaid may be subject). The new rule is expected to apply to significantly more health care workers in all facilities that participate in Medicare or Medicaid.
Argentum is seeking clarification on the scope of this rule’s impact on senior living facilities. As an IFR with Comment Period, the rule would take effect upon publication, but may be modified depending on feedback received through public comments.
Requirements for Large Businesses:
The Department of Labor, through the Occupational Safety and Health Administration (OSHA), is expected to release an Emergency Temporary Standard (ETS) in October that would mandate all companies with more than 100 employers to mandate workers be vaccinated or take a weekly test. This ETS is expected to broadly apply to senior living operators that have more than 100 employees. As with the ETS issued in June, the ETS would require employers to provide paid time off for vaccination and any side effects from the vaccine. Employers not in compliance with the ETS could be subject to a $14,000 per violation penalty. This would become effective upon publication but may be modified based on public comments.
Relation to other Federal Regulations:
It is possible that the rules that will be promulgated may supersede previously issued guidance, to include the Emergency Temporary Standard (ETS) issued in June by OSHA relating to COVID-19 workplace safety requirements for certain health care settings, and the Interim Final Rule (IFR) issued by CMS relating to vaccine education, administration, and reporting.
The ETS took effect upon publication, although Argentum submitted comments asking that it not be finalized, or if it is finalized, to specifically exclude assisted living from the requirements. Similarly, the IFR was effective upon publication, and Argentum also submitted comments asking that the requirements not extend to cover assisted living facilities that participate in Medicaid and to make these programs for assisted living providers voluntary. While both of these have taken effect, they may be revised based on the comments submitted and may ultimately be substituted for rules issued as a result of the action plan.
The executive order mandating vaccines for executive branch employees and contractors who do business with the federal government does not include an alternative for weekly testing, and a similar standard may extend for health care settings; however, there are religious and medical exemptions available to workers, which may also apply to both the health care setting rule and the forthcoming OSHA ETS.
Argentum is closely monitoring developments relating to implementation of the action plan and will be working with administration officials to urge reasonable flexibility for operators and request necessary support and relief to meeting the administration’s objectives.
Nursing and Rehabilitation:
Nursing Home Visitation
Nursing homes should continue to follow the current CMS guidance on visitation outlined in QSO-20-39-NH-REVISED. This means that indoor visitation should be suspended during the initial round of outbreak testing (including the first round of testing in individuals identified as “close contacts” and “higher risk exposures”) and may resume on unaffected units if the initial round of testing indicates that the outbreak is contained. Indoor visitation is restricted on the affected unit (i.e. the unit where the positive staff member works or the positive residents live). Outdoor visitation may continue uninterrupted, even during an outbreak.
CMS acknowledges that this may seem confusing now that outbreak testing follows the contact tracing protocol and states that they are reviewing the visitation guidance with CDC to determine if revisions can be made.
Here’s what LeadingAge National asked CMS to keep in mind as they consider revisions:
- Because testing is now determined based on contact tracing, can visitation restrictions be determined based on contact tracing? In other words, indoor visitation can continue on “affected units” for those who have not been identified as having “close contact” exposure. Previously, CMS clarified that individuals on an affected unit could continue outdoor visitation during outbreak provided they had not been placed on transmission-based precautions due to being identified as having “close contact” exposure. Those who had been identified as “close contact” exposure and placed on TBP were permitted neither indoor nor outdoor visitation except in cases of compassionate care. Now that CDC has recommended fully vaccinated residents do not need to quarantine after close contact exposure, can fully vaccinated residents with close contact exposure continue indoor and outdoor visitation while undergoing outbreak testing?
- It was further noted on this call that indoor visitation for unvaccinated residents continues to be determined based on nursing home-wide resident vaccination rates and county positivity rates. CMS confirmed that a nursing home can continue to refer to the county positivity rate in these circumstances and should reference the CDC COVID-19 Data Tracker to determine county positivity. CMS further reminds nursing homes that visitation cannot be restricted based on a visitor’s vaccination status.
Changes are coming to NHSN that will require Level three access for reporting. These changes are scheduled to appear in NHSN on September 18 and are required beginning with the reporting week ending October 3. You should do the following:
- Attend the CDC webinar on September 23 that will review these changes. Register for the webinar here.
- Double-check that at least one person in your nursing home has SAMS Level 3 access and will be available to complete required reporting on the week ending October 3.
- Work now to upgrade enrollment for other NHSN users in your nursing home so that you have multiple people with SAMS Level 3 access in the event of illness, vacation, staff turn-over, etc.
- Remember, the SAMS Level 3 access is specific to the individual, not to your nursing home. When an individual with SAMS Level 3 access leaves your nursing home, the SAMS Level 3 access goes with him/her. To initiate the process for upgrading NHSN users to SAMS Level 3, email with the subject line “Enhancing Data Security” then follow the instructions here. Information on how to add users to NHSN can be found here.
IDPH Extends Infection Control Rules
The Illinois Department of Public Health (IDPH) recently adopted emergency rules effective August 19 for 150 days. This emergency rulemaking continues and updates the provisions of a previous emergency rules. They state that each facility must maintain written infection control policies and procedures on site and make them available upon request to residents, their families or representatives, IDPH, and the certified local health department.
Additionally, the facility shall provide to IDPH upon request a copy of any infection control recommendations made by the entity responsible for annual review of infection control policies and procedures (e.g., quality assurance committee). The rulemaking also lists updated Centers for Disease Control and Prevention guidelines and federal regulations concerning COVID-19 testing and infection control that facilities must follow. If a resident, employee or volunteer of a long term care facility tests positive for COVID-19, all residents, staff and volunteers must be tested.
Those who do not test positive must be retested every 3 to 7 days until no new cases are identified. If there are no active cases in a facility, staff and volunteers, as well as asymptomatic residents who leave the facility for medical treatment and return (e.g., dialysis patients), must be tested at least twice a week if the county’s positivity rate for COVID-19 testing is above 10%; once a week if the positivity rate is between 5% and 10%; and once a month if the positivity rate is below 5%.
Mandatory Vaccination Bill Introduced
HB4134 was introduced August 26 by Rep. Anna Moeller (D-43rd District; Elgin), chair of the House Human Services Committee. Here is what the bill does:
- Amends the Nursing Home Care Act.
- Within one month after the effective date of the amendatory Act, all nursing homes must adopt and implement a COVID-19 vaccination mandate that requires all facility staff members licensed in this State to receive a single-shot COVID-19 vaccine or the first dose of a 2-dose COVID-19 vaccine within 7 business days after the facility’s mandate takes effect.
- The mandate must also require those licensed facility staff members who receive the first dose of a 2-dose COVID-19 vaccine to receive the second dose within the timeframe recommended by the U.S. Food and Drug Administration.
- Requires the Department of Public Health to issue a notice of noncompliance to facilities and licensed facility staff members who violate the provisions of the amendatory Act.
- A facility shall be fined $500 for each week that the facility fails to comply, not to exceed $24,000 per calendar year.
- If a facility fails to comply with the requirements of the amendatory Act within 10 business days after receiving a notice of noncompliance, the Department shall notify the facility in writing that its operational license is subject to revocation.
- If a facility staff member fails to comply with a facility’s COVID-19 vaccination mandate within 5 business days after receiving a notice of noncompliance, the facility staff member shall be notified by the Department that his or her occupational or professional license will be revoked.
- A facility staff member’s license will be reinstituted upon providing proof of compliance with the facility’s COVID-19 vaccination mandate to the Department.
- Creates the Nursing Home Infection Control Fund.
- Effective immediately.
- IDPH will adopt rules to implement.
This bill would still need to go through the full legislative process, but we wanted to make you aware of its introduction. It likely will come up in a series of hearings set by the legislature on Nursing Home Reform. LeadingAge Illinois participated in yesterday’s four-hour hearing and will be present again at the hearing next week. We will keep you abreast of all activity.
Home and Community-Based Services (HCBS):
Join the HCBS Cabinet
The LeadingAge Illinois Home and Community-Based Services (HCBS) Cabinet has set their series of meetings for 2022 and will work towards setting the agenda for HCBS for the association. The Cabinet, which met this morning, is looking for additional members to join that either currently have HCBS or are looking to start HCBS. If you are interested, contact LeadingAge Illinois.
Visit the LeadingAge Illinois Website for Resources and More
Be sure to frequently visit the LeadingAge Illinois website for the latest resources and information to assist you and your staff. Our website resource include:
- Advocacy Center
- COVID-19 Resource Center
- Illinois Aging Services Network (ILASN)
- LeadingAge Illinois PAC
- Value First
View these resources and much more at our website.
- Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the COVID-19 Pandemic is the main source document for healthcare providers and settings. CDC advises us that this guidance should be used in settings where healthcare is provided, including places like an assisted living where healthcare is provided by home health.
- Interim Infection Prevention and Control Recommendations to Prevent SARS-CoV-2 Transmission in Nursing Homes will continue to be the main source document for nursing homes and long-term care settings. Updates to this guidance include changes to recommendations around testing in nursing homes. CMS has issued a revised memo QSO-20-38-NH-REVISED to adopt these recommendations for testing.
- Interim Guidance for Managing Healthcare Personnel with SARS-CoV-2 Infection and Exposure to SARS-CoV-2 is the source document for determining when staff should be restricted from work and when staff can return to work. This document will also help nursing homes determine which staff should be tested during outbreak testing.