CMS Ending Numerous COVID-19 Blanket Waivers for SNFs, Inpatient Hospice, ICF/IIDs, and ESRD Facilities

On April 7, 2022, the Centers for Medicare and Medicaid Services (CMS) issued guidance terminating numerous blanket waivers applicable to skilled nursing facilities (SNFs), inpatient hospices, intermediate care facilities for individuals with intellectual disabilities (ICF/IIDs), and end stage renal disease (ESRD) facilities.  The amount of blanket waivers ending is notable; while there have been terminations of waivers previously, these were usually limited to a single waiver.

CMS expressed concern “about how residents’ health and safety has been impacted by the regulations that have been waived, and the length of time for which they have been waived.” CMS reported that findings from onsite surveys at these facilities “revealed significant concerns with resident care that are unrelated to infection control.” Accordingly, CMS is acting to remove certain operational flexibilities not directly related to infection control.

The existing blanket waivers for hospitals and critical access hospitals remain in effect and none were terminated by CMS at this time. However, CMS does continue to evaluate all waivers and their impact on patient care.

The termination of the blanket waivers occurs in two groups, either 30 days or 60 days from date of the memorandum (May 7 or June 6). CMS instructed SNFs and the other affected providers to “take immediate steps so that they may return to compliance with the reinstated requirements” within these timeframes.  The blanket waivers ending are as follows:

Emergency Declaration Blanket Waivers Ending for SNF/NFs 30 Days from Publication of the Memorandum (ending May 7, 2022):

• Resident Groups - 42 CFR §483.10(f)(5)
  • 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 the COVID-19 PHE.
• Physician Delegation of Tasks in SNFs - 42 CFR §483.30(e)(4)
  • 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 - 42 CFR §483.30(c)(3)
  • 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 - 42 CFR §483.30
  • 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) – 42 CFR §483.75(b)–(d) and (e)(3)
  • 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 - 42 CFR §483.21(c)(1)(viii)
  • 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 - 42 CFR §483.10(g)(2)(ii)
  • 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 Providers Ending 60 Days from Publication of the Memorandum (ending June 6, 2022):

• Physical Environment for SNF/NFs - 42 CFR §483.90
  • 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.
  • Certain conditions of participation and certification requirements for opening a NF if the state determines there is a need to quickly stand up a temporary COVID-19 isolation and treatment location.
  • 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 - 42 CFR §494.60(b) and(d)
  • 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 - 42 CFR §§418.110(c)(2)(iv), 483.470(j), and 483.90
  • 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 - 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 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 – 42 CFR §§418.110(d)(6), 483.470(e)(1)(i), and 483.90(a)(7)
  • 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 - 42 CFR §§418.110(d), 483.470(j), and 483.90(a)
  • 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-- 42 CFR §§483.60(h)(1)(i) and 483.160(a)
  • 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 - 42 CFR §483.95(g)(1)
  • 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 - 42 CFR §483.35(d) (Modification and Conditional Termination)
  • 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 nurse aides working under this blanket waiver in CMS memorandum QSO-21-17- NH.  (Additional information on the modification of this waiver is provided in the CMS memorandum.)