On May 1, 2023, the Quality, Safety & Oversight Group at CMS issued a memorandum entitled “Guidance for the Expiration of the COVID-19 Public Health Emergency (PHE)” (the “CMS Memo”) which announced that certain regulations or other policies included in the Interim Final Rules during the public health emergency (“PHE”) will be modified with the ending of the PHE. For this alert, “nursing homes” refers to skilled nursing facilities (often known as “SNFs”).
COVID Regulations Impacted
CMS issued several interim final rules during the PHE. Some interim final rules and provisions have specific ending dates. Interim final rules are effective for a period of three years from the date of publication if CMS does not take further action. The CMS Memo addresses details on several interim final rules after the PHE ends.
- COVID Testing Requirements. In 2020, CMS revised the nursing home infection control regulations at 42 CFR § 483.80 to establish a new requirement for nursing homes to test their nursing home residents and staff, including individuals providing services under arrangement and volunteers. The F-Tag associated with this regulation is F-886. The interim final rule sets out that these requirements are applicable for the duration of the PHE. The CMS Memo confirms that this testing regulation expires with the end of the PHE. The CMS Memo provides that while this specific regulatory requirement will end with the PHE, CMS still expects facilities to conduct COVID testing in accordance with accepted national standards, such as national Centers for Disease Control and Prevention (“CDC”) recommendations. Noncompliance with this expectation will be cited at F-880 for failure to implement an effective Infection Prevention and Control Program in accordance with accepted national standards.
- COVID Vaccine Education. In May 2021, CMS issued an interim final rule that required SNFs to educate staff and residents on the risks and benefits of COVID vaccination and to offer or assist in accessing COVID vaccination for staff and residents. The F-Tag associated with this regulation is F-887. The CMS Memo confirms that this requirement will remain in effect until May 21, 2024 unless additional regulatory action is taken.
- COVID Staff Vaccine. In November 2021, CMS issued an interim final rule requiring staff, including volunteers, in SNFs to have the first two-shot series of the COVID vaccination or be granted an approved exemption. The F-Tag associated with this regulation is F-888. The CMS memo provides that in light of the ending of the PHE and comments received on the interim final rule, CMS will “soon” end the requirement that covered providers and suppliers establish policies and procedures for staff vaccination. CMS stated that it will share more details regarding ending this requirement at the anticipated end of the PHE.
- COVID Reporting Requirements. In 2020, CMS issued an interim final regulation to require SNFs to electronically report to the CDC information about COVID in each SNF in a form specified by CMS through the National Healthcare Safety Network. The F-Tag associated with this regulation is F-884. The CMS Memo provides that through a subsequent rulemaking on November 9, 2021 at Medicare and Medicaid Programs; CY 2022 Home Health Prospective Payment System Rate Update CMS-1747-F, the requirement for reporting the COVID-19 vaccine status of residents and staff through NHSN is permanent and will continue indefinitely unless additional regulatory action is taken.
- COVID SNF Notification Requirements. Also in 2020, CMS issued an interim final regulation to require that SNFs notify SNF residents and their representatives to keep them informed of the conditions inside the SNF, including COVID cases in the SNFs. The F-Tag associated with this regulation is F-885. In the CY 2022 Rule, CMS set December 31, 2024, as a termination date for most COVID SNF notification requirements. The CMS Memo provides that CMS is concerned that the effort required to continue this reporting of COVID information to residents, their representatives and families provision may outweigh the utility of the information provided. For example, CMS has heard that providing families with the total number of cumulative COVID-19 cases (from June 2020) is not useful information. Additionally, this information is now publicly available on CMS’s COVID Nursing Home Data Website. The CMS Memo provides that CMS is exercising enforcement discretion and will not expect providers to meet the reporting of COVID information to residents, their representatives and families. However, the CMS Memo provides that all other reporting requirements referenced above remain in effect until December 31, 2024.
Blanket Waivers
During the PHE, CMS issued many versions and revisions to its memorandum entitled “COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers” that announced blanket waivers for providers, including SNFs. The authority to make those blanket waivers was granted under Sections 1135 and 1812(f) of the Social Security Act and allowed the Department of Health and Human Services to implement certain regulatory waivers during the PHE.
CMS ended several of the SNF blanket waivers in 2021 and 2022. The remaining SNF blanket waivers will expire with the PHE. The CMS Memo restated that blanket waivers currently impacted by the end of the PHE include:
- Pre-Admission Screening and Annual Resident Review (“PASARR”). CMS has allowed states and nursing homes to suspend these assessments for new residents for 30 days. After 30 days, new patients admitted to nursing homes with a mental illness or intellectual disability should receive the assessment as soon as resources become available. The CMS Memo confirmed that this waiver will end at the end of the PHE. CMS expects all providers to be in compliance with the requirements for PASARR with all admissions taking place after May 11, 2023.
- Three-Day Prior Hospitalization/Qualifying Hospital Stay. Using the statutory flexibility under Section 1812(f) of the Social Security Act, CMS temporarily waived the requirement for a three-day prior hospitalization for coverage of a SNF stay. This waiver provides temporary emergency coverage of SNF services without a qualifying hospital stay. This waiver will terminate at the end of the PHE. The CMS Memo provides that this means that all new SNF stays beginning on or after May 12, 2023 will require a qualifying hospital stay before Medicare coverage.
- Benefit Period Blanket Waiver. For certain beneficiaries who exhausted their SNF benefits, a blanket waiver authorizes a one-time renewed SNF coverage without first having to start and complete a 60-day “wellness period” (that is, the 60‑day period of non-inpatient status that is normally required in order to end the current benefit period and renew SNF benefits). This waiver will terminate at the end of the PHE. The CMS Memo provides that for any new benefit period that begins on or after May 12, 2023, the beneficiary will need to have completed a 60-day wellness period.
- Alcohol-Based Hand-Rub (“ABHR”) Dispensers. CMS waived the prescriptive requirements for the placement of alcohol-based hand rub dispensers for use by staff and others due to the need for the increased use of ABHR in infection control. The CMS Memo confirms that this waiver will end at the end of the PHE.
Practical Takeaways and Key Next Actions
- SNFs should review and revise any of their policies that they revised during the PHE to comply with these changes to the above blanket waivers and interim final rules.
- SNFs should confirm they have documentation of instances when they relied on or acted based on a blanket waiver or the expiring regulations.
- SNFs should retrain staff on the dates and timing of the end of each blanket waiver and interim final rule.
If you have questions or would like additional information about this topic, please contact:
- Sean Fahey at (317) 977-1472 or sfahey@hallrender.com;
- Brian Jent at (317) 977-1402 or bjent@hallrender.com;
- Todd Selby at (317) 977-1440 or tselby@hallrender.com; or
- Your primary Hall Render contact.
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