Board for Licensing Health Care Facilities Abandons its Emergency Rule in Favor of New CMS
Wednesday, September 16, 2020
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Posted by: Maegan Carr Martin
Tennessee Board for Licensing Health Care Facilities Abandons its Emergency Rule in Favor of New CMS Testing Rule
Tuesday, September 8th, the Board for Licensing Healthcare Facilities met to consider waiving the recently adopted emergency testing rules for nursing homes and to amend Board policy #82. Although these rules apply to nursing homes, they impact our member providers seeking to enter nursing homes as well.
We have written to our members regarding the emergency rule on multiple occasions. The rule was first adopted in May and required all Tennessee licensed nursing homes to perform baseline testing of all staff and residents by July 1st and weekly thereafter. Because Emergency rules are only effective for 180 days, this particular rule was scheduled to expire on November 25th, 2020.
However, on August 25th, CMS released an interim final rule that applies to all Medicare-certified nursing homes. The following day, CMS released the accompanying QSO. Like the Tennessee rule, the CMS rule also established a testing requirement for certified nursing homes. Because all but one of the licensed nursing homes in the state are also Medicare-certified, without action by the Board for Licensing Healthcare Facilities, all but one Tennessee nursing homes would have to comply with both the state and federal testing rules.
To reduce the complexity of the regulatory framework, the Board for Licensing Health Care Facilities (“the Board”) was asked to consider waiving the state rule for Medicare-certified nursing homes. The Board ultimately decided to waive the state rule for these facilities.
Effective October 1st, 2020, Tennessee licensed nursing homes who are Medicare-certified will have to comply with the CMS rule only. The state rule is being waived for these providers. To effectuate this change, the Board also amended its Interpretative Guidelines. You can view the amended policy here (see page 86).
While the state rule has required testing once very 7 days for all staff and residents, the CMS rule will require routine testing in accordance with the virus’ prevalence in the community in the preceding week. Therefore, facilities should use their county positivity rate in the prior week as the trigger for staff testing. - Facilities located in a county with a positivity rate over less than 5% can test staff once a month.
- Facilities located in a county with a positivity rate greater than 5% and less than 10% can test staff once a week.
- Facilities located in a county with a positivity rate greater than 10% can test staff twice a week.
Asymptomatic residents are not required to submit to routine testing absent a triggering event. CMS advises facilities to consider testing residents who frequently leave the facility, such as for dialysis or chemotherapy.
CMS, like the state, will allow a facility to comply with the testing requirements through the use of rapid point-of-care (POC) diagnostic testing devices.
The CMS rule adopts a more expansive definition of “staff” than the state rule. You may remember, the state rule defined staff to include “any individual who contracts with the facility to provide resident care.” The state later clarified that it did not intend to include individuals who provide services to residents but are employed by another entity. (See number 7 in LTCF Weekly Testing FAQ).
The CMS rule, by contrast, defines staff as “individuals that have arrangements to provide services for the facility, and any individuals volunteering at the facility.” CMS adds, “an example of individuals providing services under arrangement include a hospice that may have an agreement in accordance with the requirements for the use of outside resources under § 483.70(g) and (o) to provide hospice care for residents in the facility.”
What does this mean for home care providers seeking to enter the nursing facility? Unfortunately, because testing frequency will change from week to week and county to county, providers will have their work cut out for them trying to predict the testing requirements from one facility to the next, from one week to the next.
We will continue to monitor developments related to this change and provide updates as appropriate.
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