Department of Health Announces Testing Coverage for Contracted Providers

After weeks of discussion and deliberation, the Department of Health has agreed to reimburse the cost of testing home health and hospice providers that enter nursing home facilities to provide care to residents. 

TAHC made the request following implementation of an emergency rule that requires nursing homes to test all staff and residents by July 1st, 2020 and then weekly thereafter.  The Department of Health had previously agreed to reimburse nursing homes for testing of its staff and residents, then, by emergency rule, the Department defined "staff" to include contracted providers. 

After some nursing homes declined to test contracted providers because of the possibility that the free testing had value which was violative of the anti-kickback statutes, TAHC brought this issue to the Department's attention along with two possible solutions for consideration: 1) clarify that home health and hospice providers were nursing home staff for the purposes of the emergency rule and should be included in nursing homes' testing of staff and residents; or 2) provide independent testing of providers. 

After several weeks of deliberation, the Department of Health clarified via updates to their LTCF FAQ, that the emergency rule requiring weekly testing was not intended to apply to contracted providers employed by other entities (for example, nurses who are employed by a hospice organization).  While nursing homes have the option to require their contracted providers to test their employees weekly, the emergency rule does not require it.  However, because the Department strongly encourages weekly testing of all providers entering a nursing home facility to provide care to residents, they have agreed to reimburse contracted home health and hospice providers for weekly testing. 

In section 7 of the Revised LTCF Testing FAQ, the Department clarified: 

Tenn. Comp. R. & Regs. 1200-08-06-.06(j)(3) defines “Staff” or “Staff member” means an employee or any individual who contracts with the nursing home to provide resident care. The purpose of the rule is to ensure that reasonable measures are put in place to ensure testing of individuals providing direct care to residents, but the intent was not to require nursing homes to exercise control over the agents of other entities. The phrase “any individual who contracts with the facility to provide resident care” is interpreted to refer to those persons who are serving in the role of a full-time employee of the facility, but are doing so through a contractual relationship, rather than through actually being employed by the nursing home. One example of this includes, but is not limited to, agency staff and therapists.

However, the rule is not interpreted to extend to every individual providing direct care to a resident. A person must be tested every seven days if they are: 1) an employee, or 2) a contractor who is functioning in the capacity of a full-time employee. While the purpose of the rule is to ensure that reasonable measures are put in place to require testing of individuals providing direct care to residents, the intent was not to require nursing homes to exercise control over the agents of other entities, or to be obligated to test another entity’s employees. Therefore, if an individual provides services to residents, but is employed by another entity, they are not within the scope of individuals required to be tested every seven days. This would include, for example, home health agency employees, hospice employees, podiatrists, dentists, x-ray technicians, respiratory therapists, patient transport, EMTs, and contracted housekeeping personnel.

It is strongly recommended that all individuals providing care to nursing home residents are tested regularly, however. A nursing home can require those individuals or their employers to arrange for testing, rather than having the facility do it. To facilitate testing that is as comprehensive as possible, the Department will reimburse the cost of testing of an individual who is contracted with the facility when that testing is done through an approved laboratory provider. The reimbursement process is the same as it is reimbursed for the nursing home. Any individual can also be tested at community testing sites.

In discussions with the Department, it was further clarified that weekly testing is required, not proof of a negative test result each week.  The Department is aware that testing capacity may be strained and some delays already exist.  Sections 9 and 10 of the FAQ address testing specifics.  

In order to be reimbursed, providers must use a state approved laboratory for testing.  The Department has provided TAHC with two lists of test sites.  These lists should be consolidated soon. 

Test sites 1 (registered in Edison)

Test sites 2 (public-facing document)