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June 12, 2020
Health Law Weekly

CMS Issues Recommendations to States on Reopening Nursing Homes

This Featured Article is contributed by AHLA's Post-Acute and Long Term Services Practice Group.
  • June 12, 2020
  • Tessa Carberry , Gordon Rees Scully Mansukhani LLP

On May 18, 2020, the Centers for Medicare & Medicaid Services (CMS) issued guidance entitled Nursing Home Reopening Recommendations for State and Local Officials. The guidance recommends to the states a phased reopening of nursing homes. While the Opening Up America Again (OUAA) guidance issued by President Trump, provides a more general scheme for reopening and offers recommendations for “senior living facilities,” this guidance by CMS provides more targeted recommendations for nursing homes to protect the most vulnerable.
How States Can Use the Recommendations
Each state, county, or individual facility is unique with differing exposure risks and caseloads. For this reason, CMS suggests states can apply the recommended phased approach on a statewide, regional or county, or facility level. State leaders should work with the state survey agency, and state and local health departments to decide which plan works best for the state. This may cause a facility to be in a different phase than the surrounding community or another facility. When relaxing restrictions, states should look at:
  • Case status in the geographical community;
  • Case status in the nursing home;
  • Staffing resources;
  • Facility access to testing and testing plan;
  • Source control;
  • Access to PPE for staff; and
  • Local hospital capacity.
Highlights of Recommended Phased Reopening
The three-phase plan “cross-walks” with OUAA and looks to balance infection prevention and control with resident quality of life. The guidance:
  • Notes states may require a waiting period longer than the suggested 14 days before relaxing restrictions;
  • Provides state survey agencies with guidance to prioritize surveys starting in Phase 2;
  • Indicates if a new case is detected while in any phase, the facility must go back to the significant mitigation phase and start over; and
  • Includes the phrase “additional precautions” encompassing social distancing, hand hygiene, and cloth face covering or mask.
Initial Criteria for Reopening Nursing Homes
1. Base-line Testing
All residents and staff must receive a base-line test before any steps to reopen occur.
2. Survey of Certain Facilities
If a facility had a significant COVID-19 outbreak prior to reopening, states should survey those facilities for transmission prevention procedures.
3. Lag of Reopening
Nursing homes should remain in the “Significant Mitigation” phase, while the surrounding community is in Phase 1 of OUAA.
Phased Reopening
  Significant Mitigation Phase 2 Phase 3
OUAA Related Phase Phase 1 Phase 2 Phase 3
  • Now
  • No rebound in cases after 14 days in Phase 1
  • No new onset cases for 14 days
  • No staff shortages
  • Adequate PPE and cleaning/disinfecting supplies
  • Adequate access to testing
  • Hospitals have bed capacity
  • No rebound in cases during Phase 2
  • No new onset cases for 28 days
  • Additional requirements same as Phase 2
Visitation and Other Entry
  • Generally prohibited
  • Allowed in cases of compassionate care with screening and additional precautions
  • No change from Phase 1
  • Allowed with screening and additional precautions
  • Restricted entry of non-essential health care personnel
  • Limited entry of non-essential health care personnel/contractors with screening and additional precautions
  • Entry of non-essential health care personnel/contractors and volunteers with screening and additional precautions
Facility Activities
  • Limited communal dining (for negative or asymptomatic residents only)
  • Residents may eat in the same room with social distancing
  • No change from Phase 1
  • No Change from Phase 1 or 2
  • Restrict group activities
  • Some may be conducted (for negative or asymptomatic residents only) with additional precautions
  • Permit group activities limited (for negative or asymptomatic residents only)
  • No more than 10 people and additional precautions
  • Includes outings
  • Permit group activities limited (for negative or asymptomatic residents only)
  • No more than the number of people where social distancing among residents can be maintained with additional precautions
  • Avoid non-medically necessary trips outside facility
  • For medically necessary trips resident must wear a face covering and COVID status shared with transportation service and provider
  • No change from Phase 1
  • No change from Phase 1 or 2
  • Universal source control for everyone in the facility
  • No change from Phase 1
  • No change from Phase 1 or 2
  • All staff wear PPE consistent with CDC guidance on optimization of PPE
  • Staff wear cloth face covering if facemask is not indicated
  • No change from Phase 1
  • No change from Phase 1 or 2
  • Dedicated space in facility for cohorting and managing care for residents with COVID
  • Plan to manage new/readmissions with an unknown COVID status and residents who develop symptoms
  • No change from Phase 1
  • No change from Phase 1 or 2
Screening and Testing
  • Screen 100% of persons entering the facility and staff at the beginning of each shift, including: temperature checks; all outside persons entering building have cloth face covering or mask; questionnaire about symptoms and potential exposure; observation of any signs or symptoms
  • Screen 100% of residents daily, including: temperature checks; questions about and observation for other signs or symptoms of COVID-19
  • All staff tested weekly
  • All residents tested upon identification of an individual with symptoms consistent with COVID-19 or if staff have tested positive for COVID-19
  • Weekly testing continues until all residents test negative.
  • No change from Phase 1
  • No change from Phase 1 or 2
Survey Activity
  • Investigate and revisit Immediate Jeopardy complaints
  • Focused on infection control surveys
  • Initial certification surveys
  • Any state-based priorities
  • All Phase 1 surveys
  • Addition of investigation into actual harm complaints
  • Return to normal survey operations
  • Complaint and revisit survey required to identify and resolve any non-compliance with health and safety
  • Standard surveys and revisits
  • Focused infection control surveys
  • State-based priorities