State Requires Nursing Homes and ACFs to Test Staff and Certify Compliance

Nursing homes and adult care facilities (ACFs) are required to test all personnel two times weekly for COVID-19 and certify their compliance with all State directives under an Executive Order (EO) issued on May 10^th. Nursing homes and ACFs must submit a plan for testing staff by 5 p.m. on Wed., May 13^th and a compliance certification by May 15^th.

Staff Testing

Under EO 202.30 and a related May 11^th Dear Administrator Letter (DAL), nursing homes and ACFs must provide or arrange for testing twice weekly of all personnel, including all employees and contract staff. Positive test results must be reported to the Department by 5 p.m. on the day following receipt of the result. Whether a facility arranges for testing of its staff or provides it directly, the facility must maintain records demonstrating that it is in compliance with EO 202.30. This may require providing personnel with access to a computer and printer that can be used to print and submit test results to the facility. Facilities must maintain records of personnel testing and results for one year. Facilities must also ensure that testing is reasonably accessible for their personnel. The Department of Health (DOH) has indicated that it will be providing further guidance on the scope of testing required and method for reporting results.

The DAL suggests the following options for providing or offering testing to personnel:

Facilities may offer testing to their personnel through their occupational health program.
Facilities may direct their personnel to a local drive-through or walk-in testing site.
Personnel can call 1-888-364-3065 to inquire about testing . . . Facilities must advise personnel to find out how to get documentation of their results, such as through a laboratory portal.
Facilities may contract with a third party to offer testing.
Facilities may accept documentation of testing conducted by an individual’s health care provider.

Testing plans are to be submitted via a Health Emergency Response Data System (HERDS) survey created for this purpose.

LeadingAge NY recognizes that there are many unanswered questions in relation to this requirement. Most critical is the lack of sufficient testing capacity. Our analysis indicates that the State's testing capacity would have to increase threefold in order to accommodate this new demand. The Governor indicated in his press conference that DOH will be reviewing facility testing plans, and that if a county or region lacks sufficient testing capacity, the Department will work with the facility. If facilities anticipate difficulty in obtaining sufficient tests to comply with the mandate, we suggest indicating their capacity challenges in one of the free text sections of their testing plan.

Members have also raised questions regarding who must be tested, such as those who work off-campus or who work only a few days each month or who have recovered from COVID-19. We are raising these issues with the Department. Based on the questions posed in the DOH testing plan survey, it appears that staff who have previously tested positive for COVID-19 or the antibodies associated with COVID-19 are exempt from further testing. We have also heard from members that the costs of these tests will be prohibitive. We are pressing DOH to clarify the scope of the mandate and to provide on-site testing for staff at no cost.

Work Exclusion

According to the May 11^th DAL, personnel who test positive must remain at home in isolation, in accordance with the guidance of the State DOH and the Local Health Department (LHD). Referencing guidance issued on April 29^th to nursing homes, the May 11^th DAL states that personnel who test positive for COVID-19, but remain asymptomatic, are not eligible to return to work for 14 days from the date of the first positive test. Further, "symptomatic nursing home employees may not return to work until 14 days after the onset of symptoms, provided at least 3 days (72 hours) have passed since resolution of fever without the use of fever-reducing medications and respiratory symptoms are improving."

The applicability of the 14-day exclusion period to ACF staff is unclear. The April 29^th guidance is specific to nursing homes, but the inclusion of that guidance in the May 11^th testing DAL, which is addressed to both ACFs and nursing homes, suggests that the Department may be contemplating applying the 14-day exclusion to ACFs as well. Prior to the issuance of the May 11^th testing DAL, ACFs were subject to more general return-to-work guidance that established a seven-day exclusion period, if 14-day furloughs would cause staffing shortages. LeadingAge NY is seeking clarification on this point and others.

Personnel who refuse to undergo testing for COVID-19 must not be scheduled for, or permitted to, work or provide services for the facility, in any capacity, until testing is performed. The May 11^th DAL further provides that personnel who are ordered or directed to remain isolated as a result of a positive test result are entitled to certain benefits, including paid sick leave benefits.

We understand that the invasive nature of the nasopharyngeal swab and the lengthy exclusion period are likely to create staffing shortages. We have raised these issues with DOH and are advocating for a more reasonable approach in line with Centers for Disease Control and Prevention (CDC) guidance. Members that are experiencing staffing shortages are encouraged to refer to LeadingAge NY's Workforce Resources.

Hospital Discharge Prohibition

EO 202.30 and the associated DAL also prohibit general hospitals from discharging patients to nursing homes and ACFs, unless the facility has certified that it is able to properly care for the patient. In addition, "[n]o hospital may discharge a patient who has been diagnosed with COVID-19 to a NH or ACF, until that patient has received one negative test result using [a molecular test for SARS-Cov-2 RNA]." Although the EO affected only discharges to nursing homes, the DAL expands the prohibition to include discharges to ACFs.

In addition, the DAL requires hospital discharge planners to confirm to the facility to which the patient is being discharged (whether nursing home or ACF), by telephone, that the resident is medically stable for discharge and to provide comprehensive discharge instructions prior to the transport of a resident to the nursing home or ACF.

With the exception of patients of hospitals who have not tested negative, a nursing home or ACF cannot deny admission of a resident based solely on a resident’s COVID-19 diagnosis. If a nursing home or ACF is unable to certify that they can provide adequate care, a hospital may, in the event its capacity is necessary for more acute patients, choose to call the regional office of DOH to arrange discharge and transportation to an alternate facility.

Compliance Certification

In addition to submitting a staff testing plan by May 13^th, nursing homes and ACFs must certify by Fri., May 15^th that they are in compliance with all applicable EOs and DOH directives. According to the May 11^th DAL, the operator and the administrator must each provide DOH with a certification of compliance with EO 202.30 and all other orders and directives, including, as applicable, and without limitation:

EO 202.1, directing nursing homes to follow any guidance issued by DOH relating to visitation restrictions;
EO 202.18, as amended by EO 202.19, requiring notification to family members or next of kin within 24 hours of a resident testing positive or suffering a COVID-19-related death;
The directive of the Commissioner of Health, issued May 10, 2020 [sic], titled “Hospital Discharges and Admissions to Nursing Homes and Adult Care Facilities.”

This list of orders and directives is clearly not intended to be an exhaustive list. We have asked the Department to compile a complete list of the provisions with which facilities are expected to comply. As members are aware, the guidance and EOs have been evolving rapidly, and certain EOs were suspended or modified last week. The certification form is available here.

We will continue to work on these issues with DOH and keep members apprised of any new instructions or clarifications.

Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8838