DOH Infection Prevention Audit 'Non-Compliance' Letters Transmitted to Nursing Homes

(Sept. 9, 2024) Some nursing homes have received letters from the Department of Health (DOH) identifying areas of non-compliance in response to their infection prevention audits. The letters require facilities to provide updated policies and/or additional information. The deadline for responding is two weeks from the date of the letter.

LeadingAge NY has had an opportunity to review several letters that members shared with association staff. The association has expressed concern to DOH leaders that the letters use imprecise language which potentially mischaracterizes the statutory requirements and sub-regulatory guidance related to the infection prevention measures audited. We requested that the Department modify the letters to align with current State and national requirements and recommendations.

Areas of Non-Compliance Identified

As stated in the letters reviewed by LeadingAge NY, the areas of non-compliance noted include the following:

1. General/COVID Infection Control Staffing and Cohorting Plans – Needs verbiage re: Having dedicated, consistent staffing teams who directly interact with residents that are confirmed or suspected to be infected with a contagious or infectious disease; AND Limiting clinical and other staff who have direct resident contact to specific areas of the facility and not rotating staff between various areas of the facility during the period they are working each day during periods of recognized outbreaks.
2. Dedicated Infection Control Staffing Team – To include a list of staff names and/or titles who directly interact with residents who are confirmed or suspected to be infected with a contagious or infectious disease (ex. CNA, RN, DON)
3. Infection Control Policy and Procedure (General and COVID) – Needs verbiage re: The plan to investigate, control and take action to prevent infections in the nursing home; AND Procedures for isolation and universal precautions for residents suspected or confirmed to have a contagious or infectious disease; AND Maintaining a record of incidences and corrective actions related to infections at the nursing home.
4. The nursing home shall have a written plan for daily communications with staff, residents, and the residents' families regarding the status of infections at the nursing home.
5. The nursing home shall ensure ongoing access to the necessary supplies for hand hygiene for staff and residents, hospital disinfectants or alternatives to allow for necessary and appropriate cleaning and disinfecting of surfaces and shared resident care equipment.
6. The nursing home shall assign an infection lead staff person to implement infection control based on federal and state public health advisories, guidelines and rules.
7. The nursing home shall train staff and establish protocols for selecting, donning and doffing appropriate personal protective equipment and demonstrate competency during resident care. The nursing home must keep a record of staff training in proper storage, use, reuse, and disposal of personal protective equipment.
8. During an outbreak, the nursing home shall demonstrate that there has been advanced planning, with an employee responsible for conducting a daily assessment of staffing status and needs.
9. A sick-leave policy that does not punish staff with disciplinary action if they are absent from work because they are exhibiting symptoms or test positive for an infectious disease during an outbreak.
10. During an officially declared national emergency, or state or municipal emergency declared pursuant to article two-B of the executive law, related to a contagious or infectious disease outbreak, the nursing home shall have screening requirements for every individual entering the facility, including staff, for symptoms associated with the infectious disease outbreak.

LeadingAge NY Concerns

The association’s concerns pertain to the items describing non-compliance with communication, cohorting, and dedicated staff requirements or recommendations. They are:

• Dedicated Staff and Cohorting:  Item #1 of the non-compliance letter requests “verbiage re: Having dedicated, consistent staffing teams who directly interact with residents that are confirmed or suspected to be infected with a contagious or infectious disease” [sic]. 
  • The State’s nursing home infection control competency audit law (Public Health Law (PHL) Section 2803-aa) requires a staffing and cohorting plan to limit transmission, which is based on national (e.g., Centers for Disease Control and Prevention (CDC) and Centers for Medicare and Medicaid Services (CMS)), State, or local authority recommendations. The State aligned its guidance with CDC and CMS guidance in 2022 and 2023. According to the CDC,  when health care personnel are "dedicated" to a particular group, they "are assigned to care only for these patients during their shifts." Neither the CDC nor CMS requires facilities to have staff who are assigned to serve only residents with an infectious disease, nor are facilities required in all cases to have dedicated space for individuals with infectious diseases.
  • Specifically, the CDC infection prevention guidance for COVID states that facilities “could consider” dedicated space and staffing when the number of infected patients is high. It also recognizes that dedicated units and/or personnel “might not be feasible due to staffing crises or a small number of patients with SARS-CoV-2 infection.”
  • Likewise, the general CDC guidance on isolation precautions, which applies to health care settings and infectious diseases generally, does not require dedicated space or staffing in every situation. In long-term care and other residential settings, for infections that require transmission-based precautions, the guidance directs the facility to "make decisions regarding patient placement on a case-by-case basis, balancing infection risks to other patients in the room, the presence of risk factors that increase the likelihood of transmission, and the potential adverse psychological impact on the infected or colonized patient." For infections that require airborne precautions, it recommends, “in the event of an outbreak or exposure involving large numbers of patients who require Airborne Precautions:
    • Consult infection control professionals before patient placement to determine the safety of alternative room that do not meet engineering requirements for an AIIR.
    • Place together (cohort) patients who are presumed to have the same infection( based on clinical presentation and diagnosis when known) in areas of the facility that are away from other patients, especially patients who are at increased risk for infection (e.g., immunocompromised patients).
    • Use temporary portable solutions (e.g., exhaust fan) to create a negative pressure environment in the converted area of the facility. Discharge air directly to the outside, away from people and air intakes, or direct all the air through HEPA filters before it is introduced to other air spaces."
• Communication:  Item #4 of the non-compliance letter states that the “nursing home shall have a written plan for daily communications with staff, residents, and the residents' families regarding the status of infections at the nursing home.” In fact, this is not required. 
  • PHL Section 2803-aa requires a communication plan consistent with PHL Section 2803(12). 
  • PHL Section 2803(12) requires facilities to have a pandemic emergency plan that includes: daily communication with infected residents and families and upon a change in condition; weekly communication with all families and residents on infections and deaths; and an update for all residents, authorized family members, and resident representatives not later than 5 p.m. the next calendar day following the detection of a confirmed infection of a resident or staff member.
  • Facilities are not required to activate the plan and engage in these periodic communications with all residents and families unless there is a declared pandemic. Since the pandemic has ended as of May 2023, facilities are only required to have the plan, not deploy it (see Dear Administrator Letter (DAL) 23-03). Moreover, the State requirements do not include communications with staff. The federal communication requirements, which (unlike the State requirements) included staff, were terminated in 2023.

Facilities are encouraged to review the CDC infection prevention guidance on COVID in its entirety here and the general CDC guidance on isolation precautions here. In responding to the Department’s audit letters, alignment with CDC guidance and PHL 2803(12) should satisfy infection prevention audit requirements.

LeadingAge NY will update members if DOH responds to our concerns.

Contact: Karen Lipson, klipson@leadingageny.org