Centers for Medicare and Medicaid Services End COVID-19 Waivers

On April 7, 2022, the Centers for Medicare and Medicaid Services (CMS) released guidance ending many blanket waivers applicable to skilled nursing (SNF) facilities, inpatient hospices, intermediate care facilities for individuals with intellectual disabilities (ICF/IID) and late stage renal failure (IRT) institutions. The number of general waivers that end is notable; although there have been terminations of waivers before, these were generally limited to a single waiver.

CMS expressed concern “about how the health and safety of residents has been affected by the regulations that have been lifted, and the length of time they have been lifted”. CMS reported that the results of on-site investigations at these facilities “revealed significant concerns about resident care that are unrelated to infection control.” As a result, CMS is acting to remove certain operational flexibilities that are not directly related to infection control.

Existing blanket waivers for hospitals and critical access hospitals remain in effect and none have been terminated by CMS at this time. However, CMS continues to assess all waivers and their impact on patient care.

Termination of general waivers occurs in two groups, either 30 days or 60 days from the date of the memorandum (May 7 or June 6). CMS has asked SNFs and other affected suppliers to “take immediate action so that they can return to compliance with the reinstated requirements” within these deadlines. The general derogations ending are as follows:

End of general emergency declaration exemptions for SNF/NF 30 days of the publication of the memorandum (ending May 7, 2022):

  • Resident groups – 42 CFR §483.10(f)(5)

  • Physician Task Delegation in NFS – 42 CFR §483.30(e)(4)

    • CMS has 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 task 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 doctor.

  • Physician Visits – 42 CFR §483.30(c)(3)

    • CMS waived the requirement that all required medical visits (not already exempted in §483.30(c)(4) and (f)) be performed by the physician personally. The waiver amended this provision to allow physicians to delegate any required medical visits to a nurse practitioner, physician assistant, or clinical nurse specialist who is not an employee of the facility, who works in conjunction with a physician and who is licensed by the state and to act within state scope of practice laws.

  • Physician Visits to Skilled Nursing Facilities/Nursing Facilities – 42 CFR §483.30

    • CMS has waived the requirement for physicians and non-physician practitioners to conduct in-person visits for nursing home residents and to allow visits, where appropriate, via telehealth options.

  • Quality Assurance and Performance Improvement (QAPI) – 42 CFR §483.75(b)–(d) and (e)(3)

    • CMS has changed certain requirements that require long-term care facilities to develop, implement, evaluate, and maintain an effective, comprehensive, and data-driven QAPI program. This waiver gave providers the flexibility to focus on adverse events and infection control, as well as the aspects of care delivery most closely associated with COVID-19 during PHE.

  • Sharing Detailed Information for Discharge Planning in Long-Term Care (LTC) Facilities – 42 CFR §483.21(c)(1)(viii)

    • CMS waived the discharge planning requirement that requires LTC facilities to help residents and their representatives select a post-acute care provider using data, such as standardized assessment data from patients, quality measures and resource utilization. CMS maintained all other leave planning requirements.

  • Clinical Records – 42 CFR §483.10(g)(2)(ii)

End of general emergency declaration exemptions for various suppliers 60 days of the publication of the memorandum (ending June 6, 2022):

  • Physical environment for SNF/NF – 42 CFR §483.90

    • CMS has waived requirements to allow a non-SNF building to be temporarily certified and available for use by an SNF in the event that isolation processes are needed for COVID-19 positive residents, which may not be possible within the existing SNF structure to provide care and services during the treatment of COVID-19, provided that the State has approved the location as being sufficiently suitable for the safety and comfort of patients and staff.

    • Certain participation requirements and certification requirements for opening an FN if the State determines that it is necessary to quickly set up a temporary location for COVID-19 isolation and treatment.

    • Requirements to temporarily authorize rooms in a long-term care facility that are not normally used as resident rooms, to be used to accommodate beds and residents for resident care in the event of emergencies and situations necessary to help with surge capacity.

  • Equipment Maintenance and Fire Safety Inspections for ESRD Facilities – 42 CFR §494.60(b) and (d)

    • CMS has waived the requirement for timely preventive maintenance of dialysis machines and ancillary dialysis equipment. Additionally, CMS has waived requirements for ESRD facilities to perform timely fire inspections.

  • Inspection, Testing, and Maintenance of Medical Facilities and Equipment (ITM) for Inpatient Palliative Care, ICF/IID, and SNF/NF – 42 CFR §§418.110(c)(2)(iv), 483.470(j) ) and 483.90

  • Life Safety Code (LSC) and Health Care Facilities Code (HCFC) ITM for Inpatient Hospice, ICF/IIDs and SNFs/NFs – 42 CFR §§ 418.110(d)(1)(i) and (e), 483.470(j) (1)(i) and (5)(v), and 483.90(a)(1)(i) and (b)

    • CMS waived the ITM required by the LSC and HCFC, with specified exceptions, allowing facilities to adjust scheduled ITM frequencies and activities as necessary.

  • Exterior Hospice Windows and Doors, ICF/IID and SFN/NF – 42 CFR §§418.110(d)(6), 483.470(e)(1)(i) and 483.90(a)(7)

  • Safety Code for Hospitalized Patients, ICF/IID and SNF/NF – 42 CFR §§418.110(d), 483.470(j) and 483.90(a)

  • Paid Feeding Assistants for LTC Facilities – 42 CFR §§483.60(h)(1)(i) and 483.160(a)

  • On-the-Job Training for LTC Facilities – 42 CFR §483.95(g)(1)

  • SNF/NF Caregiver Training and Certification – 42 CFR §483.35(d) (Conditional Amendment and Termination)

    • CMS waived requirements that require an SNF and NF not to employ anyone for more than four months unless they meet the training and certification requirements under section 483.35(d). CMS has previously provided information relating to orderlies working under this general waiver in CMS Memorandum QSO-21-17-NH. (Additional information on modifying this waiver is provided in the CMS Memorandum.)

©2022 Epstein Becker & Green, PC All rights reserved.National Law Review, Volume XII, Number 98

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