Since the outset of the pandemic, the California Department of Public Health (CDPH) has issued a flurry of directives to skilled nursing facilities and other health care facilities in the form of All Facility Letters, or AFLs as they are known to providers.
As of May 14, 2020, CDPH had issued 52 such letters, considerably more than it issued in all of 2019. Some of the letters have been revised multiple times and more than a few give contradictory guidance, such as the letter that directs skilled nursing facilities to prevent the spread of coronavirus in facilities while also directing them to admit patients with COVID-19.
In contrast with its constant communications with nursing home operators, CDPH mostly ignores residents, family members and the public in its pandemic-related communications. This is in keeping with its longstanding practice of treating nursing home operators, rather than nursing home residents, as its customers.
Here then is an effort to summarize and translate some of its most significant new guidance into a form aimed at consumers. This alert looks at some of the most important new developments between mid-April and mid-May 2020. It is not a comprehensive summary of all CDPH guidance to skilled nursing facilities during that period. The full set of 2020 AFLs are available on the CDPH website.
Be aware that the AFLs are in constant flux and that everything described below is subject to change. Also keep in mind that the letters and CDPH generally give little to no information on what it is doing to keep residents safe. The letters are directives to facilities, not a roadmap to CDPH’s plans on enforcing them.
CDPH issued AFL 20-38.1 on May 2, 2020 to all health care facilities on visitation rights and restrictions. The letter restates earlier guidance recommending that pediatric, labor and delivery, and end-of-life patients be allowed one “support person” to visit. In the case of prolonged hospitalizations of pediatric patients, it recommends two designated support persons with only one of them visiting at a time.
It expands on that guidance by recommending one support person be allowed to visit when medically necessary for patients with physical, intellectual and/or developmental disabilities and patients with cognitive impairments, which describes most of the people served by skilled nursing facilities. Sadly, CDPH’s failure to define “medically necessary” has made it easy for nursing homes to ignore or refuse to heed this recommendation.
The letter further states that support persons must be asymptomatic for COVID-19, not have or be suspected of having CVOID-19, and comply with facility screening procedures and instructions on personal protective equipment (PPE).
Finally, the letter states that “CDPH strongly encourages facilities, including but not limited to skilled nursing facilities, to create ways for residents and patients to have frequent video and phone call visits.” This duty should be stated as a requirement, not a suggestion, and take note of federal rights for nursing home residents that impose such a mandate.
CANHR is urging local, state and federal officials to go further in easing the visitation ban in long term care facilities.
Transparency and Reporting by Facilities
On May 13, 2020, CDPH issued AFL 20-43.2 to skilled nursing facilities on daily reporting requirements, part of its slow-moving transition from actively covering up nursing home coronavirus outbreaks to collecting information from facilities that will be used to inform its public reports.
This letter advises facilities of changes being made to update and synchronize facility reports with new federal requirements to report to the CDC. On a daily basis, nursing facilities are required to report suspected and confirmed COVID-19 infections among residents and staff, total deaths and COVID-19 deaths among residents and staff, census, access to testing, staff shortages, availability of PPE and hand hygiene supplies, and ventilator capacity and supplies.
CDPH now has separate webpages on daily reporting requirements for skilled nursing facilities and on the actual data reported by facilities. Due to facilities misreporting, under-reporting or not reporting at all, the CDPH system has been plagued by unreliability from the start.
The initial roll-out of the updated reporting system did not go well due to technical problems. Consequently, the number of reported nursing home resident deaths in California dropped from 1, 150 on May 13, 2020 to 848 on May 14, 2020.
CANHR has issued recommendations on transparency in its alert on Compromised Transparency.
California has not yet required universal, ongoing testing of residents and staff at long term care facilities as CANHR has recommend and other states and some California counties (San Francisco and Los Angeles) have ordered. State officials have said that they might adopt such a requirement in about two weeks.
On May 2, 2020, CDPH issued AFL 20-44.1, its most recent guidance on testing. This letter sets out priorities for testing, with testing of asymptomatic residents or staff of long term care facilities in the top priority after positive cases have been identified in a facility or prior to resident admission or re-admission to a facility. The latter phrase appears to give nursing homes authority to require a test before admitting or readmitting hospitalized patients.
Under the letter, facilities are expected to have policies on how testing results will be used for infection control, frequency of testing, placement decisions, cohorting of residents and staff, continuity of care and other purposes.
Facility Mitigation Plans
On May 11, 2020, CDPH issued AFL 20-52 to skilled nursing facilities advising them of the requirement to submit a facility specific COVID-19 mitigation plan to CDPH within 21 days. In this context, “mitigation” means taking actions to keep the coronavirus out of facilities, prevent its spread within them and prevent severe illness, suffering and death of residents.
Facility mitigation plans must address the following six elements: testing and cohorting; infection prevention and control; personal protective equipment (PPE); staffing shortages; designation of space; and communication. CDPH provided a model facility mitigation plan for this purpose.
The AFL adopts some long-recommended steps, such as assigning a full-time, dedicated infection preventionist and designating a staff member to be responsible for daily communications with staff, residents and families regarding the status and impact of COVID-19 in the facility.
The letter states that CDPH will visit each facility every six to eight weeks to “validate its certification” and it may take enforcement actions if it identifies unsafe practices.
Months late in requiring facility mitigation plans, CDPH took a step forward with this AFL. Ironically, CDPH imposed this requirement on facilities without having developed its own mitigation plan for keeping nursing home residents safe.
Keeping Coronavirus Out of Nursing Homes
On May 15, 2020, CDPH reissued one of its most troubling letters, AFL 20-33.2, to skilled nursing facilities on admitting and transferring residents with COVID-19. It directs skilled nursing facilities to prevent the spread of coronavirus in facilities while also directing them to admit patients with COVID-19.
The letter gives nursing facilities cover to say no to admitting COVID-19 patients with language stating they must be able to follow Centers for Disease Control and Prevention (CDC) infection prevention and control recommendations for the care of COVID-19 patients, including adequate supplies of personal protective equipment (PPE). Most nursing homes do not meet CDC standards.
However, another AFL, AFL 20- 32, has an opposing provision, stating that SNFs shall not refuse to admit or readmit a resident based on their status as a suspected or confirmed COVID-19 case. Some of the worst performing nursing homes are using this ALF to justify admitting COVID-19 patients to their facilities.
Other states, such as New York, have reversed policies directing nursing homes to admit COVID-19 patients, replacing them with policies that prohibit hospitals from discharging patients to nursing homes unless they have tested negative for the virus. California has not reversed its policy.
Alternate Care Sites
CDPH issued AFL 20-48. 1 on May 6, 2020, which established guidelines for transferring COVID-positive patients to “alternate care sites” to alleviate strain on acute hospitals and nursing facilities. It is predicated on the idea that the wide spread of COVID-19 is likely to tax intensive care unit admissions, and in order to let overburdened ICUs handle the most acute cases, the state is working to identify “alternative care sites”. These sites would only admit persons who are positive or presumptively positive for COVID-19.
Alternative care sites are “low acuity” sites that could receive adult patients from emergency departments for ongoing monitoring, or directly from the 911 system, or from nursing homes and assisted living facilities as a substitute for low-acuity hospitalization. Patients selected are to be at “lower risk for decompensation” and at least semi-ambulatory. The California Emergency Medical Services Authority (CalEMSA) has contracted with four sites to provide this service.
Alternate care sites are to have ample staffing, including physicians, nurse practitioners and respiratory therapists, and should have basic lab capacity, ability to provide IV fluids, and nebulizer treatments and suctioning, if appropriate PPE and setting (single room) are available.
SNFs transferring residents must hold the resident’s bed for 14 days and accept residents for readmission unless CDPH deems otherwise.