Did New Jersey Just Cap Profits for Nursing Homes? New Jersey Takes Further COVID-19 Action Via Executive and Administrative Orders, and CMS Requires Positive COVID-19 Test for Add-On Payments.

For more information about this blog post, please contact Khaled J. KleleRyan M. MageeLabinot Alexander BerlajolliBrianna J. Santolli, or Daniel J. Parziale.

New Jersey Passes Bill Requiring New Prevailing Wage for Long-Term Care Facility Staff and Establishes a Direct Care Ratio for Nursing Homes

The New Jersey State Assembly and the New Jersey State Senate passed a new bill (A4482/S2758) establishing the minimum wage for certain long-term care facility staff and establishes direct care ratio requirements for nursing homes. First, the bill provides that the minimum wage for direct care staff in long-term care facilities is to be $3 higher than the prevailing State minimum wage and annually adjusted based on cost-of-living increase. Second, under the bill, the Commissioner of Human Services will be required to establish a direct care ratio reporting and rebate requirement that will take effect no later than July 1, 2021. Under the direct care ratio reporting and rebate requirement, nursing homes will be required to report total revenues collected, along with the portion of revenues that are expended on direct care staff wages, other staff wages, taxes, administrative costs, investments in improvements to the facility’s equipment and physical plant, profits, and any other factors as the Commissioner requires. The direct care ratio will require that 90% of a facility’s aggregate revenue in a fiscal year is expended on the direct care of residents.

New Jersey Passes Bill Establishing Temporary Rate Adjustment for Certain Nursing Facilities to Cover Costs Related to COVID-19

The New Jersey State Assembly and the New Jersey State Senate have passed a new bill (A4547/S2813) requiring a temporary rate adjustment for certain nursing facilities to support wage increases and to cover costs related to COVID-19. Specifically, the bill makes the reimbursement rate for Class I, Class II, and Class III nursing facilities equal to the rate received on September 30, 2020, plus a 10 percent adjustment, for the period running from October 1, 2020 through June 30, 2021. Moreover, under the bill, facilities receiving the rate adjustment will be required to use at least 60 percent of the rate adjustment for the sole purpose of increasing wages or supplemental pay for certified nurse aides providing direct care. Finally, the remainder of the rate adjustment will be used for other costs related to COVID-19 preparedness and response, including enhancing infection control measures, cleaning, reconfiguration of the facility to support cohorting, procurement of personal protective equipment, testing, or other staff wages and needs.

New Jersey Executive Directive No. 2020-17

The New Jersey Department of Health (“DOH”) issued Executive Directive No. 20-027 setting forth new personal protective equipment (“PPE”) stockpile requirements. Hospitals must have a ninety (90) day stockpile of surgical masks, N95 masks, face-shields, gloves, and gowns. Hospitals have two (2) months from the enactment of the Directive, or until October 23, 2020, to acquire the required PPE. By October 23, 2020, hospitals must send an attestation to the DOH via e-mail to CNLHospitalSEPHE@doh.nj.gov certifying compliance with the PPE stockpile requirements. PPE reporting is in addition to, not in place of, other data reporting requirements set forth in Executive Order No. 111.

New Jersey DCA Administrative Order No. 2020-15 and DCA Waiver No. 2020-14

The Division of Consumer Affairs (“DCA”) issued Administrative Order No. 2020‑15 and Waiver No. 2020‑14 to allow healthcare practitioners to utilize telemedicine to prescribe controlled dangerous substances (“CDS”). Pursuant to the Order and Waiver, in-person encounters are not required to issue a prescription for CDS. The Order shall remain in effect until whichever of the following occurs first: (1) the end of the state of emergency or public health emergency declared by Governor Murphy in Executive Order No. 103, whichever is later; or (2) the end of the telemedicine allowance designated by the United States Secretary of Health and Human Services on March 16, 2020, based upon the public health emergency declared by the Secretary on January 31, 2020.

New Jersey DCA Administrative Order No. 2020-17

The DCA issued Administrative Order No. 2020-17, which sets forth plans for resuming in-person education for cosmetology, Registered Nursing ("RN"), Licensed Practical Nursing ("LPN"), and Certified Homemaker-Home Health Aid ("CHHA") Programs.  Plans must be submitted to the appropriate board, i.e. the Board of Nursing, for review prior to resumption of in-person instruction. Among other things, the plans must be distributed to all students, teachers, and staff, social distancing is required, and sanitization and screening policies shall be adopted.

Within 30 days of the resumption of in-person instruction, each RN, LPN, and CHHA Program shall provide a certification to the Board of Nursing that in-person instruction is being conducted in compliance with the requirements set forth in the Order and other previously-issued directives. Cosmetology Programs shall submit a similar certification to the Board of Cosmetology, also within 30 days of the resumption of in-person instruction. 

CMS Now Requires Positive COVID-19 Test to Receive Medicare Boost

Centers for Medicare & Medicaid Services (“CMS”) issued new guidance requiring a positive COVID-19 test to be documented in a patient’s medical record for a claim to be eligible for the add-on payment for hospital admissions after September 1, 2020. Previously, under the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”), a 20 percent add-on payment was added to the inpatient prospective payment system diagnosis-related group rate for treating patients diagnosed with COVID-19 when a physician noted that the patient had COVID-19. Now, to receive the 20 percent add-on payment, the COVID-19 test must be taken within 14 days of the hospital admission and come back positive. For more information about this Update, please contact any of the authors below.