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March 19, 2020

COVID-19 Roundup: NYS DOH, OMH, OPWDD, and OASAS Guidance

Amid the novel coronavirus (COVID-19) crisis, NYS agencies have released a flurry of guidance documents in an effort to curb the virus’ spread. Over the past week, guidance has been issued by the NYS Department of Health (DOH), Office of Mental Health (OMH), Office for People With Developmental Disabilities (OPWDD), and Office of Addiction Supports and Services (OASAS). The following is a summary of some of the most pertinent guidance and policy documents.

DOH Suspends All Visitation in Nursing Homes and Adult Care Facilities

On March 13, the DOH and the Centers for Medicare & Medicaid Services (CMS) released guidance restricting visitors to nursing homes and adult care facilities. This guidance suspended all visitation except when medically necessary or in imminent end-of-life situations and requires all health care personnel and other facility staff to receive health checks at the start of their shifts and to wear a facemask when within six feet of residents. For more information, see our previous “COVID-19: Updated Visitor Restrictions in Nursing Homes and Adult Care Facilities” legal alert.

DOH Guidance for Children’s Waiver Service Providers

On March 14, the DOH released guidance for home- and community-based services (HCBS) providers serving children and youth under the 1915(c) Children’s Waiver program. Through this guidance, the DOH authorized HCBS to be provided telephonically or via telehealth methods whenever possible instead of face-to-face contact. Providers are permitted to utilize these methods until the DOH rescinds the waiver, so long as applicable NYS telehealth regulations are followed.

According to the DOH guidance, in instances where face-to-face contact is clinically indicated, the provider should ask the individual and their parent, guardian, or legally authorized representative the following questions:

  1. Does the child or youth have a fever, cough, or shortness of breath?
  2. Has the child or youth or someone with whom they have had close physical contact traveled outside of the United States within the last 14 days?
  3. If yes, what countries did you or your contact travel to?
  4. Within the last 14 days, have you had any contact with any person(s) under investigation for COVID-19 or with any persons known to have COVID-19?

If a “yes” answer is received for any of the questions, HCBS staff are instructed to ensure that the member has been referred to the appropriate health care provider and to coordinate next steps with all parties and their public health or primary care provider. If immediate service needs are present, the agency should take appropriate measures to ensure they’re met and should follow Centers for Disease Control & Prevention (CDC) guidance when conducting face-to-face visits.

The DOH guidance also includes instructions for HCBS agency personnel who are at risk of being a person under investigation (PUI) and requires agencies to have policies in place regarding screening staff prior to face-to-face visits with members and to strictly enforce their illness and sick leave policies.

DOH Guidance for Health Homes

On March 14, the DOH released guidance pertaining to Medicaid providers identified as health homes serving adults, health homes serving children or youth, and care coordination organization/health homes (CCO/HH) that temporarily waives face-to-face requirements for health home providers.

For as long as the waiver remains in effect, telephonic or telehealth may be utilized by health home providers in lieu of face-to-face contact. According to the DOH guidance, health homes are permitted to continue to bill at the applicable rate for members contacted via alternative means during the billing month. In instances where face-to-face visits are postponed, care managers must coordinate next steps with the member and other providers.

If there are immediate care management needs—such as assistance with pharmacies or accessing food and other basic products, among others—the care manager is required to ensure there is a frequency of contact sufficient to preserve the member’s health and safety. Additionally, in instances where face-to-face visits are required, the care manager must utilize screening questions to determine whether the member has respiratory infection symptoms, has been in contact with a PUI or someone with known COVID-19, or has traveled to an affected country. If the member does not screen positive to any of the questions, the face-to-face meeting may proceed. Finally, guidance similar to the Children’s Waiver Service Providers document pertaining to agency personnel who are at risk of being a PUI applies.

DOH Interim Guidance for Home Care Services

On March 16, the DOH issued interim guidance for home care services requiring home care services agencies to consider the need for immediate services prior to their delivery. Specifically, agencies should consider whether it’s critical that the services be provided now, whether they can be postponed until the risk from COVID-19 is lower, or whether the services can be provided remotely through phone call or video conference, for example.

In instances where there cannot be a delay in providing services, staff are instructed to call ahead and ask the client and their family members (if applicable) screening questions regarding the presence of respiratory infection symptoms, exposure to any PUIs or persons with confirmed COVID-19, or travel to any affected countries. In certain instances, based on the individual’s response to these screening questions, visits should be postponed to a later date. If the services must be provided in the patient’s home, the agency is instructed to consult with their local health department.

The DOH guidance also requires agencies to encourage staff to use infection prevention strategies such as hand hygiene and avoiding touching their eyes, nose, or mouth with unwashed hands, among others.

OMH Guidance for Behavioral Health Programs

On March 11, OMH released guidance for behavioral health programs. The guidance applies to outpatient services and residential settings.

For outpatient treatment and support programs, including mobile services and HCBS, providers should screen patients prior to arriving and prior to community-based visits and scheduling appointments. The screening should involve asking the patient whether they have had symptoms of a respiratory infection, whether they have had contact with a PUI or a person with confirmed COVID-19, and whether they have traveled to affected countries.

In instances where the patient has traveled or had contact with PUIs or someone with known COVID-19 but does not have respiratory infection symptoms, staff should immediately consult the clinical team to assess whether the individual has any urgent behavioral health needs and whether they can be safely met remotely. If the patient responds yes to all of the screening questions, the patient should be instructed to remain at home and contact their medical professional and local health department. If the patient is at a program site, they should be given a mask, placed in a separate room behind a closed door (if possible), and either be assessed by a program medical provider or contact their own medical professional. The program must also contact the local health department. Notably, the same guidance also applies to circumstances where a patient at an OMH-funded or licensed residential program answers yes to all three of these questions.

The OMH guidance also instructs providers to develop policies for scheduling and completing telephone pre-screenings of all program visitors who are neither patients nor staff. Additionally, individuals arriving for unscheduled visits should either be told to leave and to call to schedule a visit or should be screened before being permitted to enter the program. Finally, programs are required to contact entities that have staff who regularly visit their programs—including, for example, pharmacy delivery organizations, cleaning agencies, and per diem staffing agencies—to review and approve their screening protocols. If the protocols don’t meet the standards identified in the OMH guidance, the provider will be responsible for the screenings. This guidance regarding visitors applies to all program settings.

OMH Supplemental Guidance of Use of Telemental Health

On March 12, we wrote about the regulatory waiver for telemental health services issued by the OMH. Subsequently on March 13, the OMH released supplemental guidance expanding on the previously provided telemental health services waiver information. The supplemental guidance expands the definition of telemental health as well as the staff permitted to utilize the service method during the duration of the COVID-19 disaster emergency. Notably, the supplemental guidance only applies to certain OMH-licensed programs and designated services. For more information, see our previous “COVID-19: OMH Issues Supplemental Telemental Health Guidance” legal alert.

OPWDD Guidance for Residential and Non-Residential Facilities

On March 10, the OPWDD issued guidance requiring all residential and non-residential facilities certified or operated by the OPWDD receiving regular, in-person contact with the public (including families, care managers, and advocates, among others) to immediately develop policies for scheduling and pre-screening all planned visits by telephone. Screenings require using questions related to symptoms of respiratory infection, contact with any PUIs or anyone with known COVID-19, or travel to a country which the CDC has issued a level two or three travel designation.

Visitors who have symptoms of a respiratory infection—such as fever, cough, shortness of breath, or sore throat—should be restricted from visiting until they are no longer exhibiting any symptoms. If a visit is permitted to occur, the visitor must wear a mask and can only visit in a contained area, such as a single bedroom. Agencies are instructed to consider any heightened risk factors, including the medical status of the individual being visited and others in the home, when determining whether a visit should still occur.

Additionally, visitors who answer “yes” to the questions regarding contact and travel but who do not have symptoms of a respiratory infection may not be permitted to visit and should be instructed to contact the DOH for further direction. Finally, facilities that receive unscheduled or unannounced visitors should implement a protocol for visitor screening prior to the visitor being permitted to enter the facility.

The OPWDD guidance also directs facilities to consider additional factors when implementing temporary visitation restrictions in addition to the screening questions above. Factors to be considered include:

  1. The general health or medical status of the individuals served that might increase their risk
  2. The potential or actual infection status of individuals served by the program
  3. Any increased potential for risk due to the prevalence of confirmed COVID-19 cases within the geographic area

Visitation limits are required to be time-limited and reviewed on an ongoing basis. Facilities are also required to post the visitor notice poster issued by the DOH at all facility entrances.

OPWDD Guidance for ICF/IIDs

On March 14, the OPWDD issued guidance for intermediate care facilities for individuals with intellectual disabilities (ICF/IIDs) that applies to all ICF/IIDs operating statewide.

The guidance suspends all visitation to ICF/IIDs, except for instances where the visitation is medically necessary. Medical necessity is found when the visitor is essential to the patient’s care or is providing support in imminent end-of-life situations. The exception also applies to family members in imminent end-of-life situations and those providing hospice care.

When visitors are allowed, the duration and number of visits should be minimized. Visitors must wear a facemask, may only visit in the resident’s room, and must be screened in the same manner as staff. ICF/IIDs are instructed to provide other methods to meet residents’ social and emotional needs, such as video calls, and must post signs notifying the public of the suspension of visitation and proactively notify residents’ family members.

The OPWDD guidance requires all health care personnel and other facility staff to receive a health screening at the beginning of each shift. Importantly, any health care professionals and other staff with respiratory infection symptoms or a temperature of 100°F or higher should be sent home along with health care professionals or other staff who develop symptoms or a fever while in the facility. All health care professionals and other staff must wear a facemask when within six feet of residents.

In addition to visitation and screening requirements, the OPWDD guidance also addresses instances of confirmed cases of COVID-19 in an ICF/IID. It instructs facilities to notify their local health department, the DOH, and the OPWDD Incident Management Unit (in accordance with earlier OPWDD guidance) and also provides a variety of steps that must be taken in the affected unit including:

  1. Actively monitoring all residents on the affected unit once per shift, with monitoring meeting certain requirements
  2. Requiring residents on affected units to remain in their rooms and canceling group activities and communal dining
  3. Discontinuing floating staff between units

The OPWDD guidance also provides direction for handling suspected cases of COVID-19 as well as guidance relating to residents’ access to the community.

OPWDD Suspends All Day and Prevocational Services

Effective March 17, the OPWDD announced a temporary suspension of services at all day habilitation, day treatment, and prevocational services locations. Providers are required to implement temporary suspension measures immediately and must submit a plan for temporary suspension to the OPWDD by Friday, March 20. For more information, see our previous “COVID-19: OPWDD Suspends All Day and Prevocational Services” legal alert.

OPWDD Revised Interim Guidance on Telehealth Use

On March 17, the OPWDD released revised interim guidance applicable to all residential and non-residential facilities and programs certified or operated by the agency allowing and encouraging the use of telehealth to remotely provide services to individuals with intellectual or developmental disabilities whenever possible.

According to the guidance, health and habilitation services may be provided remotely via telehealth when a provider, exercising good clinical judgment, has determined that a telehealth encounter is appropriate for delivering services to the specific individual. Services that require the physical presence of a staff member for the individual’s health and safety cannot, however, be delivered via telehealth.

Health care services delivered by telehealth are reimbursable by Medicaid so long as:

  1. The provider is licensed or certified or currently registered in accordance with applicable law and enrolled in Medicaid.
  2. The services are delivered by a provider acting within the scope of their practice, exercising good clinical judgment, and practicing in the appropriate use of telehealth with respect to the service.

Reimbursement will be in accordance with existing Medicaid policies related to supervision as well as billing rules and requirements. The OPWDD guidance instructs Article 16 clinic providers to bill using the rules for the specific services rendered along with the telehealth modifier for the location code. The guidance also requires certain documentation and retention requirements to be met.

OPWDD DSPs Defined as Essential Employees

On March 18, the OPWDD issued guidance clarifying that direct support professionals (DSPs) are considered essential and integral employees to the agency’s programs and services. In support of this position, the OPWDD pointed to guidance issued by the NYS Education Department on March 17 that classifies DSPs as essential health care workers.

OASAS Issues Telepractice Waiver

On March 9, the OASAS released guidance announcing a waiver of certain regulatory provisions pertaining to telepractice. Specifically, the waived regulatory provisions include those requiring:

  1. Prior written authorization to implement telepractice services
  2. A written proposed plan and attestation for request for designation to provide services
  3. At least one in-person evaluation session with clinical staff prior to the telepractice session

Providers who are not currently approved to deliver telepractice services must complete a self-attestation prior to providing services via telepractice. The self-attestation’s completion allows providers to deliver telepractice services to any patient admitted or seeking admission to an OASAS program for the duration of the disaster emergency. The self-attestation must be submitted to the OASAS Bureau of Certification at certification@oasas.ny.gov, and once the receipt is acknowledged, the provider may begin telepractice.

Updated guidance released by the OASAS on March 13 clarifies that telephonic delivery is an acceptable means of service delivery under the waiver. Providers are instructed to bill for services in the same way in which they bill for services by other means, except for use of a specific telepractice modifier code. Notably, the OASAS guidance stated that additional guidance on billing and practice would be forthcoming.

Barclay Damon’s health care attorneys have significant experience handling regulatory and compliance issues for providers licensed and certified by the OMH, OASAS, and OPWDD. We will continue to track the ever-changing landscape during this unprecedented and fluid situation. Our highly experienced team is here to help.

If you have any questions regarding the content of this alert, please contact Dena DeFazio, associate, at ddefazio@barclaydamon.com or another member of the firm’s Health Care & Health and Human Services Practice Area.

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