By Patrick Formato, Barbara Phair and Frank Mazzagatti

Previously on April 2, 2020, CMS had issued “COVID-19 Long Term Care Facility Guidance” alerting facilities to the need to separate residents based on their COVID-19 status by transfers within the facility, to other long-term care facilities or to other non-certified locations designated by the Stateto prevent its transmission of COVID-19. To facilitate cohorting, CMS issued a physical environment waiver to temporarily allow the use of rooms not normally used as a resident room in an LTC facility.

On April 13, 2020, CMS issued a memorandum to provide supplemental information for transferring or discharging residents between facilities for the purpose of cohorting residents based on COVID-19 status under the following scenarios.

  • Transfers between two or more certified LTC facilities intended to create a COVID-19 and a non-COVID-19 facility are permitted without additional approval. Each facility bills Medicare for the residents in their facility.
  • Transfers of residents from one or more certified LTC facilities to a non-certified location that is State-approved and where residents are cared for by LTC facility staff has also been approved by waivers issued by CMS. Medicare reimbursement is maintained by the facility now caring for the transferred residents.
  • Transfers of COVID-19 residents to Federal/State run facilities staffed with Federal or State personnel by order of a governmental authority, such as FEMA, is permissible and no waivers are necessary so long as the transfer is consistent with the State’s emergency preparedness or pandemic plan or directed by the NYS Department of Health.

Please see the attachment “LTC Facility Transfer Scenarios” from CMS for a depiction and explanation of these scenarios.

The healthcare attorneys at Abrams Fensterman are committed to providing you with the most current and accurate information and guidance from CMS, the CDC, the New York State Department of Health and via Executive Orders issued by the Governor. When updated information is made available, we will provide you with additional or revised Client Updates. Should you have questions about the CMS COVID-19 Long-Term Care Facility Transfer Scenarios guidance, feel free to contact Patrick Formato, Esq., Barbara Stegun Phair, Esq., Frank A. Mazzagatti, Esq., or any other attorney in our health law practice group.