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Clarification from CMS on 1135 waivers in light of ending the public health emergency

Doug Beardsley
By Doug Beardsley  |  May 5, 2023  |  All providers

This week, the Centers for Medicare & Medicaid Services (CMS) released a new regulatory memo QSO-23-13-ALL entitled: “Guidance for Expiration of the COVID-19 Public Health Emergency (PHE) on May 11, 2023.” The memo outlines each waiver CMS put into place during COVID-19 and how the end of the PHE will affect those waivers. Additionally, the memo outlined timelines for certain regulatory requirements issued through the PHE. This memo applies to long-term care (LTC), intermediate care facilities (ICF), and other provider types.

Noticeably missing from the QSO was any revised guidance regarding PPE use. The Centers for Disease Control & Prevention (CDC) is currently in the clearance process for revised COVID-19 guidance for healthcare facilities; it is assumed CMS requirements will align with any new CDC guidance once it is released (hopefully before May 11). Following is a summary of the key elements in the memo:

Reporting to residents, representatives, and families on COVID-19
CMS will exercise enforcement discretion for the requirement to report to residents, their representatives and families and not expect providers to meet this requirement at this time. This pertains to the requirement associated with F885.The American Healthcare Association (AHCA) has advocated for this relief and is clarifying with CMS when this change takes effect. 

Staff COVID-19 vaccine requirements
Related to the interim final rule issued November 5, 2021, CMS will soon end the interim final rule requiring all healthcare staff to be fully vaccinated for COVID-19. CMS will provide more information on this at the anticipated end of the PHE. CMS does continue to urge everyone to stay up to date on their COVID-19 vaccine.

Requirements for educating about and offering residents and staff the COVID-19 vaccine
Facilities will need to continue to educate and offer residents and staff the COVID-19 vaccine until the interim final rule expires, three years after issuance, which would be May 21, 2024. 

Requirements for reporting related to COVID-19
The requirement to report via NHSN is set to terminate December 31, 2024. This will continue until that time as a requirement to support national efforts to control the spread of COVID-19.  

CMS does note that some reporting, such as COVID-19 vaccine status of residents and staff through NHSN, is permanent and will continue indefinitely unless additional regulatory action is taken. 

Providers should also be aware that the SNF Quality Reporting Program (QRP) will require reporting of two COVID-19 vaccine related measures: 
  • COVID-19 Vaccine: Percent of Patients/Residents Who Are Up to Date (FY24)
  • COVID-19 Vaccination Coverage among Healthcare Personnel 

Emergency preparedness
During the PHE, facilities were not required to complete full-scale emergency drills. This allowance will expire at the end of the PHE.

Three-day prior hospitalization
As previously reported, the three-day waiver will terminate immediately with the expiration of the COVID-19 PHE. Meaning, beginning May 12, 2023, SNF stays will require a qualifying hospital stay before Medicare coverage. Additionally, residents will be required to have a 60-day wellness break to begin a new benefit period.

Nurse aide training competency and evaluation programs (NATCEP)
All individual waivers granted to states and individual facilities will terminate at the conclusion of the PHE, unless a facility or state has been granted a waiver that expires prior to the end of PHE. Uncertified nurse aides working in a LTC facility covered by a waiver granted to a state or individual facility will have four months from the date the PHE ends (or from the termination date of the facility’s or state’s waiver, if earlier) to complete a state approved NATCEP program. This includes those LTC care facilities, or facilities in states that were granted an extension of the waiver after October 6, 2022.

Preadmission screening and annual resident review (PASARR)
As previously reported, CMS will begin requiring residents to have a PASARR prior to admitting to facilities when the PHE expires. This will affect all admissions taking place after May 11, 2023.

Resident roommates and grouping
CMS waived the requirements in 42 CFR 483.10(e)(5) and (7) solely for the purposes of grouping or cohorting residents with respiratory illnesses. The requirements of this waiver will end with the conclusion of the PHE.

Requirements for COVID-19 testing
The COVID-19 testing requirements will expire with the end of the PHE. However, COVID-19 testing remains important and is a nationally recognized standard to help identify and prevent the spread of COVID-19. Facilities should continue to follow CDC guidelines for when to test residents and staff.

Focused infection control (FIC) surveys
Beginning in fiscal year (FY) 24, states will no longer be required to conduct additional FIC surveys in their states. For FY23, states are still required to survey 20% of their nursing facilities utilizing FIC surveys. 

Doug Beardsley  |  Vice President of Member Services  |  |  952-851-2489


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