CMS Testing Requirement Complicates Tennessee's Existing Requirements

In May, the Tennessee Department of Health proposed, and the Board for Licensing Healthcare Facilities adopted, an emergency rule requiring weekly testing of all nursing home staff and residents.  Since that time, we have been working with the Department of Health to obtain clarification where needed, and to advocate for our members.  One result of our advocacy was the Department of Health’s decision to reimburse contracted providers (including home health and hospice) who either choose to, or are required by a facility, to test all staff.

Last week, in an interim final rule, CMS announced that all Medicare-certified nursing homes would have to perform weekly testing of all staff and residents.  Although Tennessee already had a weekly testing requirement, there are differences between the CMS rule and Tennessee’s existing rule.  For example, in the QSO to the interim rule, CMS defined “facility staff” to include  employees, consultants, contractors, volunteers, and caregivers who provide care and services to residents on behalf of the facility, and even students in the facility’s nurse aide training program.  The Tennessee emergency rule, however, has been interpreted to exclude contracted providers, like hospice and home health staff.

In a call with the Tennessee Department of Health yesterday, September 2^nd, TDH confirmed that for now, until the CMS rule is successfully and fully implemented, nursing homes should comply with the Tennessee emergency rule.  TDH also assured TAHC that while TDH leadership is developing its implementation plan, there will be opportunities for collaboration and clarification on this rule. If you find, in your agency/organization’s review of the interim rule, that you have concerns or questions, please let us know so that we can notify TDH.

Yesterday, we received a notice of emergency rulemaking from TDH, and it appears from the agenda that the TDH is planning to waive the emergency rule establishing Tennessee’s testing program.  TAHC will be attending the meeting and making comments to the rulemaking as appropriate.  The meeting will occur by Webex on Tuesday, September 7^th.