CMS Ending COVID-19 PHE-related Blanket Waivers

On April 7, 2022, the Centers for Medicare and Medicaid Services (CMS) released a new QSO Memo, “Update to COVID-19 Emergency Declaration Blanket Waivers for Specific Providers.” The new Memo states that CMS has continued to review the need for existing emergency blanket waivers throughout the pandemic, and now plans to end multiple waivers in two groups (first group ends in 30 days / second in 60 days). This is not the first time CMS has ended waivers, and while COVID-19 isn’t a exactly thing of the past, the Agency now believes that several additional waivers need to be terminated.

The Real Impetus Behind The Waivers Ending

In prior guidance published in a November 12, 2021 QSO Memo, CMS has noted that due to the “limited insight” that it had into nursing homes because State Agencies were not performing on-site surveys, it had concerns with multiple high-risk areas, including weight loss, pressure ulcers, abuse or neglect, loss of function/mobility, depression, inappropriate use of antipsychotic medications and nurse competency. As such, it directed surveyors to take a hard look at these areas when they were doing on-site surveys.

CMS also directed State Agencies to use a risk-based prioritization of surveys, and to survey providers with a history of/ allegations of abuse or neglect, staff competency issues, quality of care issues (including pressure ulcers and falls), staffing issues, infection control, and violations of transfer/discharge requirements before others. So, the first providers to get recertification surveys would be the ones with a bigger potential for issues in those areas.

Guess what the result has been? Surprise – Since “normal” survey & certification activities resumed late in 2020, surveyors are finding issues in these areas when performing surveys. The new April 7, 2022 QSO Memo states the following:

“While the waivers of regulatory requirements have provided flexibility in how nursing homes may operate, they have also removed the minimum standards for quality that help ensure residents’ health and safety are protected. Findings from onsite surveys have revealed significant concerns with resident care that are unrelated to infection control (e.g. abuse, weight loss, depression, pressure ulcers, etc.) We are concerned that the waiver of certain regulatory requirements has contributed to these outcomes and raises the risk of other issues.”

 So, surveyors have been finding what they were looking for, which gives you a direction for your own internal efforts, but also resulted in the plan to terminate the emergency waivers. Let’s look at what’s changing moving forward:

Waivers Ending in 30 Days (May 7, 2022)

Just a reminder – May 7 is a Saturday, so have things ready to go by Friday.

• Resident Groups – The waiver which allowed facilities to restrict in-person resident groups will be ending.
• Physician Delegation of Tasks in SNFs/ Physician Visits – The waivers that allowed physicians to delegate tasks to PAs/NPs/Clinical Nurse Specialists and to allow those same individuals to perform required physician visits will both be ending. CMS is also ending the requirement for physicians/non-physician practitioners to perform visits via telehealth instead of in-person.
• QAPI – A waiver that allowed nursing homes to focus their QAPI programs on infection control, adverse events and COVID-related care delivery will also end.
• Information Sharing for Discharge Planning – The waiver that gave LTC facilities a reprieve from providing detailed information to residents/ representatives to assist with selecting a post-acute provider will also end. Facilities will need to resume providing data to residents/ representatives to help them make informed decisions when choosing care providers, including using quality measure and other standardized patient assessment data.
• Clinical Records  – The waiver that allowed nursing homes more time to provide a resident with a copy of his/her clinical records within two working days of resident request will also be ending.

Waivers Ending in 60 Days (June 6, 2022)

June 6 is a Monday, so plan ahead to make sure everything is ready to go for that date. Many of these waivers were added to the list of blanket waivers in April 2020, so CMS will be terminating them two years later.

Physical Environment/Life Safety Waivers Ending:

• Physical Environment – The waiver that allowed non-SNFs to be temporarily certified for use by a SNF in the event that there was a need for COVID-19 isolation will be ending. Requirements which made it easier to temporarily open a nursing facility for COVID-19 (if a State determined it was necessary) will also end. That waiver also allowed for rooms that wouldn’t normally be used as a resident room to be used for resident care during emergencies and to assist with COVID-19, and that will end, too.
• Outside Doors and Windows – The waiver regarding every sleeping room having an outside window or door will be terminated.
• Life Safety Code (LSC) and Health Care Facilities Code (HCFC) ITM  – The waiver that allowed inspection, testing and maintenance (ITM) scheduled frequencies and activities to be modified will end.

Care-Related Waivers Ending:

• Paid Feeding Assistants – The waiver to allow paid feeding assistant training to be a minimum of one hour in length will end.
• In–Service Training for Nurse Aides – The waiver modified the nurse aide in-service training hours will be terminated. (View CMSCG’s “Ftag of the Week – F730 Nurse Aide Performance Review – 12Hr/Yr In-Service” here and our “Ftag of the Week – F947 Required In-Service Training for Nurse Aides” here).
• Training and Certification Nurse Aides – This waiver is listed as a “modification and conditional termination.” It waived certain requirements which allowed nursing homes to employ nurse aides for longer than the maximum four months for those who had not met necessary training and certification requirements.

There is extensive guidance in the QSO Memo about nurse aides, so it would be good to read through. Here are some of the highlights:

• All nurse aides, including those hired under the blanket waiver listed above, must complete a state-approved Nurse Aide Competency Evaluation Program (NATCEP) to become a certified nurse aide (CNA).
• All nurse aides must be competent to provide nursing and nursing-related services, and this requirement must continue to be met by staff. (View CMSCG’s “Ftag of the Week” for F729 Nurse Aide Registry Verification, Retraining for more information.)
• CMS is aware that there may be delays in nurse aides becoming certified due to the volume of individuals who need to complete the state program. If a facility or nurse aide can demonstrate with documentation their attempts to complete the training and testing, then a waiver would still be available  while continuing to attempt to become certified as soon as possible. The waiver is terminated for all others.
• CMS reminds states that their programs may need to be reevaluated if all components of the program are being adequately provided if the state sees that there are trends in poor quality of care among nurse aides that were hired under the training waiver. States would need to ensure that any gaps in on-site training that have been identified are addressed through supplemental training.

Read CMS QSO-22-15-NH & NLTC & LSC dated April 7, 2022 here. The list of blanket waivers is maintained on the CMS Current Emergencies webpage, along with other COVID-19 PHE guidance.

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