Regulatory Update

Renewal of Determination That a Public Health Emergency Exists and Blanket Waivers Ending for SNF/NFs

Polaris Group Profile
Polaris Group
April 12, 2022
September 14, 2022
Polaris Group Profile
Polaris Group
September 14, 2022
Summary

Announcement regarding the end of emergency waivers and details on areas affected by the change.

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Renewal of Determination That a Public Health Emergency Exists

On April 12th, 2022, Xavier Becerra, Secretary of Health and Human Services (HHS), renewed the current COVID-19 Public Health Emergency (PHE). The PHE was set to expire on April 16, 2022. The extension of the PHE means that the following regulatory flexibilities for SNFs among a few others identified in the 1135 blanket waivers will be preserved:

  • 3-Day Prior Hospitalization. Using the authority under Section 1812(f) of the Act, CMS is waiving the requirement for a 3-day prior hospitalization for coverage of a SNF stay, which provides temporary emergency coverage of SNF services without a qualifying hospital stay, for those people who experience dislocations, or are otherwise affected by COVID-19.

In addition, for certain beneficiaries who recently exhausted their SNF benefits, it authorizes renewed SNF coverage without first having to start a new benefit period. This waiver will apply only for those beneficiaries who have been delayed or prevented by the emergency itself from commencing or completing the process of ending their current benefit period and renewing their SNF benefits that would have occurred under normal circumstances).

Emergency Declaration Blanket Waivers Ending for SNF/NFs 30 Days from Publication of this QSO-22-15 Memorandum

While the PHE was renewed and extends certain 1135 blank waivers, CMS' QSO-22-15 memo dated 4-7-2022 ends waivers for 16 areas previously in effect. Here is, in part, the thought process behind ending the waivers identified below:

  1. Concerns with resident declines not related to infection control have been validated through onsite surveys in the following areas: Abuse, Weight Loss, Depression, Pressure Ulcers.
  2. Because paid feeding assistant training and CNA training requirements were waived, employees may not have known how to identify and prevent weight loss
  3. Because physicians and NP’s could perform assessments remotely, signs of depression and presence of pressure ulcers may have been missed.
  4. Because certain life-safety code requirements were waived, facilities may not have had their fire prevention systems inspected to ensure effective operations.

 

Areas Affected by the QSO-22-15

  • Resident Groups - CMS waived the requirements which ensure residents can participate in-person in resident groups. This waiver permitted the facility to restrict in-person meetings during COVID-19 PHE.

  • Physician Delegation of Tasks in SNFs - CMS waived the requirement that prevents a physician from delegating a task when the regulations specify that the physician must perform it personally. This waiver gave physicians the ability to delegate any tasks to a physician assistant, nurse practitioner, or clinical nurse specialist, but specified that any task delegated under this waiver must continue to be under the supervision of the physician.

  • Physician Visits - CMS waived the requirement that all required physician visits (not already exempted in §483.30(c)(4) and (f))must be made by the physician personally. The waiver modified this provision to permit physicians to delegate any required physician visit to a nurse practitioner, physician assistant, or clinical nurse specialist who is not an employee of the facility, who is working in collaboration with a physician, and who is licensed by the State and performing within the state’s scope-of-practice laws.

  • Physician Visits in Skilled Nursing Facilities/Nursing Facilities- CMS waived the requirement for physicians and non-physician practitioners to perform in-person visits for nursing home residents and allow visits to be conducted, as appropriate, via telehealth options.

  • Quality Assurance and Performance Improvement (QAPI) –CMS modified certain requirements which require long-term care facilities to develop, implement, evaluate, and maintain an effective, comprehensive, data driven QAPI program. This waiver gave providers the ability to focus on adverse events and infection control, and those aspects of care delivery most closely associated with COVID-19 during the PHE.

  • Detailed Information Sharing for Discharge Planning for Long-Term Care (LTC) Facilities - CMS waived the discharge planning requirement which requires LTC facilities to assist residents and their representatives in selecting a post-acute care provider using data, such as standardized patient assessment data, quality measures and resource use. CMS maintained all other discharge planning requirements.

  • Clinical Records - CMS modified the requirement which requires long-term care (LTC) facilities to provide a resident a copy of their records within two working days (when requested by the resident). Emergency Declaration Blanket Waivers For Various Provider-Types Ending 60 Days from Publication of this Memorandum:

  • Physical Environment for SNF/NFs - CMS waived requirements to allow for a non-SNF building to be temporarily certified and available for use by a SNF in the event there were needs for isolation processes for COVID-19 positive residents, which may not be feasible in the existing SNF structure to ensure care and services during treatment for COVID-19, provided that the state has approved the location as one that sufficiently addresses safety and comfort for patients and staff. Page 4 of 6  Certain conditions of participation and certification requirements for opening a NF if the state determines there is a need to quickly stand up a temporaryCOVID-19 isolation and treatment location. o Requirements to temporarily allow for rooms in a long-term care facility not normally used as a resident’s room, to be used to accommodate beds and residents for resident care in emergencies and situations needed to help with surge capacity.

  • Equipment Maintenance & Fire Safety Inspections for ESRD facilities- CMS waived the requirement for on-time preventive maintenance of dialysis machines and ancillary dialysis equipment. Additionally, CMS waived the requirements for ESRD facilities to conduct on-time fire inspections.

  • Facility and Medical Equipment Inspection, Testing& Maintenance(ITM) for Inpatient Hospice, ICF/IIDs and SNFs/NFs –CMS waived ITM requirements for facility and medical equipment to reduce disruption of patient care and potential exposure/transmission of COVID-19.

  • Life Safety Code (LSC) and Health Care Facilities Code (HCFC) ITM for Inpatient Hospice, ICF/IIDs and SNFs/NFs -CMS waived ITM required by the LSC and HCFC, with specified exceptions, which permitted facilities to adjust scheduled ITM frequencies and activities to the extent necessary.

  • Outside Windows and Doors for Inpatient Hospice, ICF/IIDs and SFNs/NFs–CMS waived the requirement to have an outside window or outside door in every sleeping room. This permitted spaces not normally used for patient care to be utilized for patient care and quarantine.

  • Life Safety Code for Inpatient Hospice, ICF/IIDs, and SNFs/NFs - CMS waived these specific LSC provisions: § Fire Drills: Due to the inadvisability of quarterly fire drills that move and mass staff together, CMS permitted a documented orientation training program related to the current fire plan, which considered current facility conditions. § Temporary Construction: CMS waived requirements that would otherwise not permit temporary walls and barriers between patients.

  • Paid Feeding Assistants for LTC facilities: CMS modified the requirements regarding required training of paid feeding assistants to allow that training can be a minimum of one hour in length. CMS did not waive other requirements related to paid feeding assistants or required training content.

  • In-Service Training for LTC facilities –CMS modified the nurse aide training requirements for SNFs and NFs, which required the nursing assistant to receive at least 12 hours of in-service training annually.

  • Training and Certification of Nurse Aides for SNF/NFs - CMS waived the requirements which require that a SNF and NF may not employ anyone for longer than four months unless they met the training and certification requirements under §483.35(d). CMS previously provided information related to Page 5 of 6nurse aides working under this blanket waiver in CMS memorandum QSO-21-17- NH.

 

These 1135 blanket waivers do not affect the 1812(f) waiver for the three-day hospital qualifying stay or the 60-day new benefit period waiver which were extended in January 2022. There will be more to come from CMS in the future.  

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