CMS COVID-19 Guidance Should Please Nursing Homes and Concern Everyone Else

On May 18, 2020, Centers for Medicare and Medicaid Services (CMS) released a ten-page Memorandum making recommendations to state and local officials for operation of "Medicare/Medicaid certified long term care facilities (hereafter 'nursing homes') to prevent the transmission of COVID-19." 

Nursing homes can breathe easier since the Guidance includes no mandatory language directed at operators.  In some instances CMS identifies "choices" for the states, such as whether to require all facilities in a state to go through reopening phases at the same time, by region, or on individual bases.  The memo says that facilities "should" have CDC-compliant testing plans, including "capacity" for all residents and staff members to have a single baseline test with retesting until all test negative. 

Unless you are an operator, the Guidance is concerning.  Does the Guidance mean that a nursing home should be able to test everyone before easing visiting restrictions, but can choose not to do so?   

 CMS cross-references ("cross-walk") to reopening phases for all "senior care facilities" under President Trump's Opening Up America Again plan on page 4 of the Guidance.  The document describes "surveys that will be performed at each phase" of the reopening process, referring to the states' obligations to conduct surveys on prioritized timelines.  No  hard numbers for such oversight suggested for states, and of course, as a result no hard numbers are in place for nursing homes.

CMS recommends that each nursing home "should spend a minimum of 14 days in a given phase, with no new nursing home onset of COVID-19 cases, prior to advancing to the next phase," and CMS says states "may choose to have a longer waiting period (e.g., 28 days) before relaxing restrictions for facilities that have had a significant outbreak of COVID-19 cases."   The Memorandum apparently leaves determination of what constitutes a significant outbreak to the states or the nursing homes themselves, as well as application and enforcement of the recommendation 

There is also much missing.  For example,  there is nothing in the latest CMS guidelines regarding staff members who work at more than one facility, thus posing a clear potential for cross-contamination. There is nothing in the latest CMS guidelines for testing of and segregation of residents transferred from a hospital, and there is nothing that prevents states from compelling institutions to accept transfers from hospitals or other government entities of COVID-19 infected patients (even younger than one might normally find in such institutions), thereby risking spread of the contagion within an institution.  

What is most comforting, is the detail the Memorandum provides, and the depth to which "thinking" regarding COVID-19 transmission has evolved.  It is important to remember that . although disease transmission protocol is not new, COVID-19, and its unique and intense challenges only became known less than five months ago, and, of course, we are still learning new details.