On April 9, 2020, the Centers for Medicare & Medicaid Services (“CMS”) issued its third version of a memorandum entitled “COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers” (“Blanket Waiver Memo”) that announced additional blanket waivers for providers, including skilled nursing facilities (“SNFs”). The Blanket Waiver Memo adds several physician services waivers for SNFs. As a result, nurse practitioners, in addition to physicians, may now perform some medical exams on Medicare patients at skilled nursing facilities. CMS issued the SNF waivers to address potential staffing shortages, maximize the use of medical personnel and protect the health and safety of residents during the Public Health Emergency.
Background – Section 483.30 – Physician Services
Under 42 CFR 483.30, a physician must personally approve in writing a recommendation that an individual be admitted to a SNF. Each resident must remain under the care of a physician. A physician, physician assistant, nurse practitioner or clinical nurse specialist must provide orders for the resident’s immediate care and needs.
42 CFR 483.30(e)(4) provides that “a physician may not delegate a task when the regulations specify that the physician must perform it personally, or when the delegation is prohibited under State law or by the facility’s own policies.”
Further, 42 CFR 483.40(c)(3) provides that all required physician visits must be made by the physician personally and cannot be delegated. A required physician visit includes the initial comprehensive visit in a SNF and every alternate visit thereafter, as required by 42 CFR 483.30(c)(4). The initial comprehensive visit in a SNF is the initial visit during which the physician completes a thorough assessment, develops a plan of care and writes or verifies admitting orders for the resident.
Physician Delegation of Tasks in SNFs – 42 C.F.R. 483.30(e)(4)
CMS has waived the requirement in § 483.30(e)(4) that prevents a physician from delegating a task when the regulations specify that the physician must perform it personally. This waiver gives physicians the ability to delegate any tasks to a physician assistant, nurse practitioner or clinical nurse specialist who meets the applicable definition in 42 C.F.R. 491.2 or, in the case of a clinical nurse specialist, is licensed as such by the state and is acting within the scope of practice laws as defined by state law.
The waiver of this regulation requires that any task delegated under this waiver must continue to be under the supervision of the physician. The waiver does not include the provision of § 483.30(e)(4) that prohibits a physician from delegating a task when the delegation is prohibited under state law or by the SNF’s own policy.
Physician Visits – 42 C.F.R. 483.30(c)(3)
CMS has waived the requirement at 42 C.F.R. 483.30(c)(3) that all required physician visits (not already exempted in § 483.30(c)(4) and (f)) must be made by the physician personally. CMS 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 SNF, 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.
Exceptions
CMS is not waiving the following:
- Frequency. The requirements for the frequency of required physician visits at § 483.30(c)(1), but has only modified the requirement to allow for the requirement to be met by a nurse practitioner, physician assistant or clinical nurse specialist and via telehealth or other remote communication options, as appropriate.
- Supervision. The requirements for physician supervision in 42 C.F.R. 483.30(a)(1) and the requirement at 42 C.F.R. 483.30(d)(3) for the SNF to provide or arrange for the provision of physician services 24 hours a day, in case of an emergency. CMS reminded SNFs that it is important that the physician be available for consultation regarding a resident’s care.
Policy Updates Needed
If the SNFs want to take advantage of these, SNFs should review and revise their policies to allow physicians to delegate the actions allowed in the Blanket Waiver Memo.
Considerations for Skilled Nursing Section 1135 Waiver Request
Skilled nursing providers that believe that SNF waivers granted in the Blanket Waiver Memo are not enough should consider requesting waivers for topics, which could include, but are not limited to:
- 42 C.F.R. 483.45(c) Temporarily waive monthly medication regimen reviews of medical charts and enable those reviews to be conducted by telehealth.
- Adjust and relax the requirements for physician assessment every 30 days in the first 90 days and every 60 days thereafter at 42 C.F.R. 483.30.
- Adjust documentation requirements such as the SNF’s facility assessment and QAPI plan.
Next Actions
We are working with post-acute providers across the care continuum on these issues and are available to assist post-acute care providers to design and submit their Section 1135 waiver requests.
If you have questions or would like additional information about this topic, please contact:
- Sean Fahey at (317) 977-1472 or sfahey@hallrender.com;
- Todd Selby at (317) 977-1440 or tselby@hallrender.com;
- Brian Jent at (317) 977-1402 or bjent@hallrender.com; or
- Your regular Hall Render attorney.
More information about Hall Render’s Post-Acute and Long-Term Care services can be found here.
Hall Render’s attorneys and professionals continue to maintain the most up-to-date information and resources at our COVID-19 Resource page, through our 24/7 COVID‑19 Hotline at (317) 429-3900, or your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
