The nation’s nursing facilities, assisted-living facilities, inpatient rehabilitation facilities and home care providers—and their long-term care (LTC) workforce—are at the forefront of the COVID-19 crisis. Roughly 2.5 million seniors and other medically fragile Americans receive care in nursing facilities and other congregate care settings, while more than 10 million Americans with functional impairments require assistance at home or in their communities with their personal care or daily routine needs.
Caring for those at highest risk of contracting COVID-19 and experiencing severe cases, LTC providers are faced with overwhelming challenges and difficult decisions. They must protect and care for their patients while keeping their workers safe and their businesses operating efficiently and in compliance with evolving federal and state rules.
In addition to navigating on-the-ground operational challenges, LTC providers must simultaneously:
- Absorb an enormous volume of federal and state directives and guidance, including on provider operational protocols;
- Advocate directly or through associations to state and federal leaders for key regulatory relief;
- Operationalize and ensure reimbursement for newly deployed telehealth modalities; and
- Navigate privacy and security flexibilities and compliance.
Below are five key challenges LTC providers are facing that require rapid responses and virtually real-time decisions in an evolving COVID-19 policy, regulatory and clinical environment.
1. Protecting and Supporting Frontline Workers and Staff
LTC providers are being called on to rapidly review, widely communicate and effectively implement infection control procedures to ensure all appropriate protections, including increasingly scarce personal protective equipment (PPE), are in place to prevent the spread of COVID-19 in patients, as well as among healthcare workers and staff. Federal guidance and state-specific directives are clarifying the processes that both facilities and home health agencies must deploy to swiftly screen their staff and respond if COVID-19 symptoms are identified, as well as providing regulatory flexibilities to redeploy or add new staff to ensure sufficient provider capacity as the crisis unfolds.
Different providers, however, are facing their own unique challenges in implementing the guidance. For example, skilled nursing facilities (SNFs) are being called on to implement infection control procedures in a congregate environment with a high-risk population, which is difficult even in normal times. Home care providers are being called on to go directly into patients’ homes. They must rely on patients and their families or other caregivers for COVID-19 screening (e.g., taking temperature) and self-reporting of COVID-19 symptoms and severity. As a result, the safety and capacity of home care workers are difficult to monitor and manage.
2. Screening, Triaging, Treating and Monitoring Patients
Treating and protecting patients is providers’ core mission. Providers must have clear and comprehensive protocols in place to detect, triage, isolate and monitor COVID-19 positive patients promptly, minimizing potential exposure to other patients, staff and necessary visitors. Federal guidance, as well as state directives, for Medicare and Medicaid providers have clarified these processes. The COVID-19 outbreak has dramatically accelerated the use of telehealth as a method of triaging and treating individuals who are infected, and as an alternative source of treatment for high-risk patients. Healthcare providers, supported by states and payers, can leverage telehealth in ways not possible in previous epidemics, while effectively protecting healthcare workers and reducing the spread of the disease. Although telehealth is now authorized in various care settings and as a care management and treatment modality, providers still must successfully deploy telehealth (often in stages), ensure providers and caregivers can document remote assessments and visits and monitor ongoing care needs, and ensure reimbursement for their telehealth activities.
3. Supporting Patients Through Care Transitions
One of the most precarious and controversial situations facing LTC providers is safely transitioning both COVID-19 positive and other patients across care settings, particularly hospitals, SNFs and homes. Minimizing potential exposures to staff, workers, family members or other caregivers, as well as other patients, is of utmost concern and importance. Clear and comprehensive transition and care protocols for every step of each type of transition, starting prior to the transition, are critical to minimize the potential spread of the virus.
The initial epicenter of the COVID-19 crisis in the United States was a nursing facility in Washington State. To date, COVID-19 cases are occurring in a growing number of facilities across the country. Overwhelmed hospitals need to transition mild COVID-19 cases to nursing or other facilities or to home-based settings. Recipient settings, however, are understandably concerned about ensuring that appropriate protocols are in place to prevent further spread of the virus. New York has mandated that SNFs take mild COVID-19 cases to free up hospital bed capacity for more severe cases, which puts SNFs in a position of potentially introducing COVID-19 into their facilities. Concerns are heightened by the fact that there is a lack of clarity and direction on appropriate protocols or the risk of those cases to workers or other patients. As New York has had by far the most COVID-19 cases to date, more states likely will follow suit and implement similar directives. Providers will have to work with their hospital partners and state leaders to ensure there are appropriate SNF or other care settings available to take and treat COVID-19 positive cases in a safe manner.
4. Understanding and Operationalizing New Federal and State Regulatory Flexibilities
Both the federal government and states are issuing healthcare industry guidance and directives at an unprecedented rate. Much of the guidance for LTC providers has focused on implementing infection control procedures and other protocols to help them operate their facilities, treat patients and protect workers safely, expeditiously and efficiently. Additionally, the federal government is granting, on its own and at states’ and provider associations’ request, various easements from Medicare and Medicaid regulatory requirements. These easements relate to, for example, provider screening and other licensing requirements and care management processes, as well as flexibilities to redeploy staff from one care setting to another, implement and be reimbursed for telehealth, and conduct and be paid for COVID-19 home testing. Providers are now grappling with how to operationalize these flexibilities; ensure they are able to code and bill for services rendered to protect their financial solvency; continue to track the regulatory waivers that are being granted; and identify and advocate, either directly or through associations, for additional flexibilities with state and federal leaders.
5. Navigating Privacy and Security Flexibilities and Compliance
Because of states’ social distancing and, in some cases, shelter-at-home mandates, the LTC workforce may be largely working from home. Working from home creates unique challenges to complying with the Health Insurance Portability and Accountability Act (HIPAA). The Office of Civil Rights (OCR) has issued several HIPAA waivers to ease regulatory burdens on providers by exercising enforcement discretion and waiving potential penalties—for HIPAA violations and for failure to distribute notices of privacy practices—against healthcare providers that serve patients through everyday communications technologies during the COVID-19 nationwide public health emergency. These waivers, however, do not protect LTC workers if they do not employ reasonable safeguards in the home work environment. In light of the fact that cybercriminals often capitalize on changing technological environments by increasing phishing attempts or scams, LTC providers are operating in a particularly challenging environment. LTC providers should distribute clear and simple guidance to their entire workforce regarding how to protect Protected Health Information (PHI), as well as electronic PHI.
Final Thought: Know Your Resources: Manatt COVID-19 Response Team
For additional assistance with respect to your company’s response to COVID-19, please reach out to Stephanie Anthony at santhony@manatt.com or Randi Seigel at rseigel@manatt.com.