During this challenging and uncertain time in the fight against COVID-19, the Agency for Health Care Administration (“AHCA”) has been working closely with the Florida Department of Health (“DOH”) and health care providers on COVID-19 prevention and response efforts to ensure that facilities across Florida have the knowledge and training to take every precaution to ensure the health and safety of patients, residents and health care staff. AHCA shares key guidance from the Centers for Disease Control and Prevention (“CDC”) and DOH on the importance of restricting visitors, infection control protocols, and hygiene best practices. All licensees need to be vigilant in the protection against the spread of COVID-19 at their facilities. In facilities such as Assisted Living Facilities (“ALFs”) and Skilled Nursing Facilities (“SNFs”), it is extremely important to follow prevention guidelines because once COVID-19 appears in a facility it is a quick battle to isolate it and prevent others from being infected. Unfortunately, sometimes the battle is not quickly won, and the good guy suffers despite following detailed recommendations released by the CDC and the DOH.
Although AHCA and the DOH provide information on training, prevention, and response efforts, it must be noted that they are the policing agencies that are responsible for making sure that the Florida facilities protect their residents. Alerts released through AHCA require that facilities must report the positive COVID-19 cases in their facilities on a daily basis through the Emergency Status System (“ESS”). The ESS is the approved database for all licensees providing residential or inpatient services to report their emergency status. The number of COVID-19 cases in a facility is considered emergency status and must be reported daily.
AHCA and other state survey agencies are under extreme pressure to survey facilities to ensure compliance with COVID-19 directives. In fact, on January 4, 2021, the Centers for Medicare and Medicaid (“CMS”) issued a revised memorandum detailing new triggers for focused infection control surveys. The original CMS memorandum from June 1, 2020 identified two triggers for an infection control survey: nursing homes that report three or more new COVID-19 cases in the past week or one new resident case in a nursing home that was previously COVID-free as reported to National Healthcare Safety Network (“NHSN”). These surveys must be initiated by the state survey agency within three to five days of identification.
The January 4, 2021 update has outlined five more triggers for a focused infection control survey which went into effect immediately. Now nursing homes must meet one of the original case criterion plus at least one of the following new criteria: multiple weeks with new COVID-19 cases, low staffing, selection as a Special Focus Facility (a facility identified by CMS to have a documented pattern of providing poor care), concerns related to conducting outbreak testing per CMS requirements, or allegations or complaints that pose a risk of harm or immediate jeopardy to the health or safety or that are related to certain areas such as abuse or quality of care (e.g., pressure ulcers, weight loss, depression, decline in functioning). A survey may not be necessary for nursing homes meeting the above criteria if the nursing home received an onsite focused infection control survey in the three weeks prior to meeting the criteria, either as a stand-alone survey or as part of a recertification survey. However, in the event that a nursing home continues to meet the above criteria in the fourth week following the prior focused infection control survey, a new survey should be initiated. It must be noted that the original June 1, 2020 memorandum directed that state survey agencies must conduct a focused infection control survey of a minimum of 20% of the nursing homes in the state during the fiscal year 2021. Additionally, to meet this minimum of 20% of state nursing homes surveyed, only stand-alone focused infection control surveys may be counted.
In February 2021, AHCA issued its most recent emergency rules regarding mandatory entry for testing: 59AER21-3 Mandatory Entry for Testing and Infection Control for Nursing Homes and 59AER21-2 Mandatory Entry for Testing and Infection Control for Assisted Living Facilities. These rules provide updated DOH infection control directives and infection control duties concerning staff and resident testing, including making off-shift staff available at the facility for testing.
AHCA’s Field Operations Offices are responsible for conducting facility surveys. When deficiencies are found, a report called a Statement of Deficiencies (“SOD”), is generated to the facility for corrective action. The SOD issued to the facility will specify which rules or statutes the facility is deficient in following. In a situation where a facility is the subject of a focused COVID survey, the SOD may contain a deficiency for Resident Care – Rights & Facility Procedures pursuant to F.A.C. 59A-36.007(6) and F.S. 429.27 and F.S. 429.28 for failure to adhere to recognized standards from the CDC. Such failure may be in the form of failing to ensure social distancing and/or, failure to ensure residents and staff wore personal protective equipment (“PPE”) to prevent the spread of COVID-19. Additionally, it may include facility’s failure to ensure that the staff were knowledgeable about the prevention of the spread of COVID-19 and failure to screen staff and residents appropriately.
Another potential violation of the above rule and statutes that the SOD may contain is for failure to properly abide by the Division of Emergency Management (“DEM”) Order No. 20-011 (signed October 20, 2020) regarding the prohibition of entry of individuals to the facility except in certain circumstances as follows:
1. Every facility must continue to prohibit the entry of any individual to the facility, except in the following circumstances:
K. General visitors, i.e. individuals other than compassionate care visitors, under the criteria detailed below:
iii. Before allowing general visitors, the facility shall:
1. Set a policy to prohibit visitation if the resident receiving general visitors is quarantined, positive for COVID-19 and not recovered (as defined by most recent CDC guidance), or symptomatic for COVID-19;
2. Screen general visitors to prevent possible introduction of COVID-19;
3. Establish limits on the total number of visitors allowed in the facility, or with a resident at one time based on the ability of staff to safely screen and monitor visitation;
4. Establish limits on the length of visits, days, hours, and number of visits allowed per week;
5. Schedule visitors by appointment only;
6. Maintain a visitor log for signing in and out;
7. Immediately cease general visitation if a resident—other than in a dedicated wing or unit that accepts COVID-19 cases from the community—tests positive for COVID-19, or is exhibiting symptoms indicating that he or she is presumptively positive for COVID-19, or a staff person who was in the facility in the prior ten (10) days tests positive for COVID-19;
8. Monitor visitor adherence to appropriate use of masks, PPE, and social distancing;
9. Notify and inform residents and their representatives of any changes in the facility’s visitation policy;
10. Clean and disinfect visiting areas between visitors and maintain handwashing or sanitation stations; and
11. Designate staff to support infection-prevention and control education of visitors on use of PPE, use of masks, hand sanitation, and social distancing.
2. Individuals seeking entry to the facility, under the above section 1, will not be allowed to enter if they meet any of the screening criteria listed below:
A. Any person infected with COVID-19 who does not meet the most recent criteria from the CDC to end isolation.
B. Any person showing, presenting signs or symptoms of, or disclosing the presence of a respiratory infection, including cough, fever, shortness of breath, sore throat, chills, headache, muscle pain, repeated shaking with chills, new loss of taste or smell, or any other COVID-19 symptoms identified by the CDC.
C. Any person who has been in close contact with any person(s) known to be infected with COVID-19, who does not meet the most recent criteria from the CDC to end quarantine.
Clearly, this Order is very detailed on when and how a facility can admit visitors into the facility and it can easily be found that a facility failed to follow it precisely.
Another possible deficiency that a facility may be cited for is failure to follow the Comprehensive Emergency Plan that is required by F.S. 408.821. This statute requires that any licensee providing residential or inpatient services must utilize an online database approved by AHCA to report information to AHCA regarding the provider’s emergency status, planning, or operations. As stated above, all facilities are required to report their COVID-19 positive cases through the ESS on a daily basis. If a facility fails to report a positive case on any day, it can be cited for failure to follow the Comprehensive Emergency Plan violating the statute.
AHCA imposes administrative fines for violations according to a classification system in statute, based on the nature of the violation and the gravity of its probable effect on facility residents. ALFs’ (governed by Chapter 429, Part I, Florida Statutes, in addition to Chapter 408, Florida Statutes) deficiencies are classified as a Class I, Class II, Class III, or Class IV violation. The core licensing statutes for the facility type determine the Class and the fine that AHCA is authorized to charge the provider. SNFs are governed by Chapter 400, Part II, Florida Statutes, as well as Chapter 408, Part II, Florida Statutes. The “classification” system and applicable penalties for SNFs are found in section 400.23(8), Florida Statutes, and while similar to those of ALFs have striking differences. Specifically, the SNF statute provides for different levels of fines depending on whether the deficiency was isolated, patterned, or widespread. Additionally, for Class I, II, and III deficiencies, section 400.23(8), Florida Statutes, provides that “The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection.” (emphasis added).
As part of a survey that results in deficiencies due to COVID-19, AHCA may request a facility to enter a Voluntary Limitation on Admissions in order to help control the spread of COVID-19 in the facility. Many facilities will agree to the voluntary limitation in the best interests of their residents. Unfortunately, the facility cannot begin readmitting former residents or admitting new residents until AHCA issues a letter lifting the voluntary limitation. When the facility finally gets the green light on admissions it is possible that they will have lost numerous readmissions and initial admissions and therefore face a steep financial challenge.
Additionally, even though a facility agrees to a voluntary limitation and then quickly contains the COVID-19 outbreak, they are still at risk for being the subject of an Administrative Complaint. The Administrative Complaint will seek administrative fines, a survey fee, and will sometimes seek to take action against the facility license (e.g., license suspension or revocation). Once served with an Administrative Complaint, the facility has the option to file a Petition for Formal Administrative Hearing to challenge the validity of AHCA’s action or proposed action on the license. Hearings on license proceedings are held before an independent administrative law judge at the Division of Administrative Hearings. Such hearings are an opportunity to prove that the true facts do not support the sought fines, and suspension or revocation of the facility license.
If your facility has received an Administrative Complaint resulting from COVID-19 issues, we can help. Contact an attorney at Smith & Associates today to discuss your rights and options. For additional information on challenging a statement of deficiency or on classification of violations, please see our article Defending Alleged Survey Deficiencies At Assisted Living Facilities (ALFs) and Skilled Nursing Facilities (SNFs).