The Beginning of the End of COVID-19-Related Emergency Blanket Waivers

Healthcare providers have been waiting and watching for any sign of the end of the COVID-19 Public Health Emergency (PHE) and 1135 waivers, but very little has been published about it until recently.

On April 7, 2022, CMS Center for Clinical Standards and Quality/Quality, Safety & Oversight Group published REF: QSO-22-15-NH & NLTC & LSC, “Update to COVID-19 Emergency Declaration Blanket Waivers for Specific Providers,” which addresses the initial retraction of certain 1135 blanket waivers specific to:

• Skilled nursing facilities (SNF)
• Nursing facilities (NF)
• Inpatient hospices
• Intermediate care facilities for individuals with intellectual disabilities (ICF/IIDs)
• End stage renal disease (ESRD) facilities

The termination of these blanket waivers only applies to the above-listed entities and does not have any effect on other blanket waivers that remain in place, such as those specific to hospitals or critical access hospitals (CAHs). The retraction or end to these blanket waivers will take place in two waves, as follows:

Blanket Waivers Terminated in Wave 1

Effective May 7, 2022

• Skilled nursing facilities (SNFs) and nursing facilities (NFs) will no longer have the ability to restrict residents from participating in in-person groups and meetings.
• Regulation 42 CFR §483.30(e)(4) will no longer allow physicians to delegate any tasks to a physician assistant (PA), nurse practitioner (NP), or clinical nurse specialist (CNS) under the physician’s supervision when the task should be performed personally by the physician.
• Regulation 42 CFR §483.30(c)(3) requires physician visits (not already exempted in §483.30(c)(4) and (f)) to be performed by the physician personally.
• Regulation 42 CFR §483.30 requires physicians and non-physician practitioners to perform in-person visits for nursing home residents. Watch for updates to the Medicare telehealth approved services list, which should reflect this change.
  Per 42 CFR §483.75(b)–(d) and (e)(3), long-term care (LTC) facilities are required to develop, implement, evaluate, and maintain an effective, comprehensive, data-driven QAPI program.
• As part of the Detailed Information Sharing for Discharge Planning Long-Term Care (LTC) facilities (42 CFR §483.21(c)(1)(viii)), LTC facilities must assist residents and their representatives in the process of selecting a post-acute care provider using data, such as standardized patient assessment data, quality measures, and resources.
• Per 42 CFR §483.10(g)(2)(ii), LTC facility must provide a resident a copy of their medical records within two working days when requested by the resident.

Blanket Waivers Terminated in Wave 2

Effective June 7, 2022

• Physical environment for SNF/NF (42 CFR §483.90)
  • Ends the blanket waiver, which allowed a non-SNF building to become temporarily certified for residents with COVID-19 isolation needs; NFs to be used as temporary COVID-19 isolation and treatment locations; and LTC facilities to use beds (not normally used as a resident’s room) to help with emergency situations and to help with surge capacity.
• Equipment Maintenance & Fire Safety Inspections for ESRD facilities - 42 CFR §494.60(b) and (d)
  • Requires on-time preventive maintenance of dialysis machines, ancillary dialysis equipment, and the conduction of on-time, ESRD facility fire inspections.
• Facility and Medical Equipment Inspection, Testing & Maintenance (ITM) for Inpatient Hospice, ICF/IIDs and SNFs/NFs – 42 CFR §§418.110(c)(2)(iv), 483.470(j), and 483.90
  • Requires inspection, testing, and maintenance (ITM) for inpatient hospice, SNFs, NFs, and ICF/IIDs, which was previously waived to prevent potential exposure/transmission of COVID-19 and to reduce disruption of patient care.
• 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)
  • LSC and HCFC requires these facilities to adhere to pre-waiver inspection, testing, and maintenance schedules.
• Outside Windows and Doors for Inpatient Hospice, ICF/IIDs and SFNs/NFs – 42 CFR §§418.110(d)(6), 483.470(e)(1)(i), and 483.90(a)(7)
  • Every room used for sleeping must have an outside window or outside door.
• Life Safety Code for Inpatient Hospice, ICF/IIDs, and SNFs/NFs - 42 CFR §§418.110(d), 483.470(j), and 483.90(a)
  • Reinstates quarterly fire drills that move and gather staff together and no longer permits temporary construction that places walls and barriers between patients.
• Paid Feeding Assistants for LTC facilities: 42 CFR §§483.60(h)(1)(i) and 483.160(a)
  • Requires paid feeding assistants to receive the full training, and not the reduced one-hour training allowed with the waiver.
• In-Service Training for LTC facilities – 42 CFR §483.95(g)(1)
  • Requires nursing assistants to receive at least 12-hours of in-service training annually.
• Training and Certification of Nurse Aides for SNF/NFs - 42 CFR §483.35(d) (Modification and Conditional Termination)
  • SNFs/NFs may not employ anyone longer than four (4) months unless they meet all of the training and certification requirements listed in §483.35(d)
  • Refer to memo QSO-21-17-NH for details related to nurse aid training, waiver extensions based on delayed training due to available capacity, etc.

CMS will continue to review the need for existing emergency blanket waivers issued because of the COVID-19 PHE and repeal waivers as they deem necessary to improve standards of quality that help to ensure resident’s health and safety are protected. As findings from onsite surveys have recently revealed significant concerns related to resident care, unrelated to infection control such as but not limited to:

• Abuse
• Weight loss
• Depression
• Pressure ulcers

Additionally, the lack of necessary training in paid feeding assistants and nurse aids, as well as waived requirements of a physician or practitioner’s performance of in-person assessments, may have also contributed to increased findings of weight-loss, depression, and pressure ulcers, many of which will be rectified with the removal of these 1135 emergency blanket waivers.

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