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CMS Issues Guidance on 1135 Waivers

On April 8th, the Centers for Medicare and Medicaid Services (CMS) issued memorandum QSO 21-17-NH announcing that several 1135 waivers will end effective May 10th. The waivers had been granted in response to the Public Health Emergency (PHE), and CMS believes that as nursing homes have developed policies and practices, certain waivers are no longer necessary.

The following waivers will end May 10th:

  • Waiver of requirements related to the timing of notifying residents prior to transfer and discharge to enable facilities to expeditiously cohort residents to prevent the transmission of COVID-19 to uninfected residents / requirements related to the timing of notifying residents of changes in rooms or roommates.

Before enacting the emergency blanket waiver related to providing notice when transferring or discharging residents, facilities were required to provide notice of the transfer or discharge to the resident/representative 30 days in advance, or as soon as practicable prior to the transfer or discharge. Therefore, facilities are now required to resume providing notice as required in the regulations:

  • With 30 days advanced notice, or as soon as practicable before the transfer or discharge of a resident; and
  • Before a room or roommate change.

CMS is only ending the waivers for providing written notice before a room/roommate change and for timing of notification of transfer or discharge. The related waivers, which continue to allow facilities to transfer or discharge and change rooms for the sole purposes of cohorting, remain in effect.

  • Waiver of requirements related to the timing of completing certain care plans.

Federal regulations require that a nursing home complete a baseline care plan and comprehensive care plan within 48 hours and seven days of admission to the facility, respectively. CMS waived these requirements when transferring or discharging residents to another long term care facility for the certain cohorting purposes of admission, after a comprehensive Minimum Data Set (MDS) assessment.

  • Waiver of timeframe requirements for completing and transmitting resident assessment information (MDS) in order to allow facilities to focus on resident care.

CMS waived the MDS timeframe requirements for assessments to allow providers flexibility in completing and transmitting assessments. CMS now believes that the majority of facilities have been completing and transmitting assessments timely and that all providers should be able to complete and transmit MDS assessments as required.

  • Waiver of requirements related to nurse aides in training to mitigate potential staffing shortages by enabling facilities to employ nurse aides quickly and for extended periods of time.

CMS provided a blanket waiver for the nurse aide training and certification requirements at 42 CFR §483.35(d) (except for requirements that the individual employed as a nurse aide be competent to provide nursing and nursing-related services at 42 CFR §483.35(d)(1)(i)), specifically to permit nurse aides to work for longer than four months without having completed their training. This waiver allows facilities to employ individuals beyond four months in a nurse aide role even though they might not have completed a state-approved Nurse Aide Training and Competency Evaluation Program (NATCEP). The individual could continue to work as long as the nursing home ensured that the nurse aide could demonstrate competency in skills and techniques needed to care for residents. CMS is not ending the current nurse aide waiver.

CMS is clarifying how federal regulations can be applied to nurse aides working under the blanket waiver and help enable these individuals to become certified nurse aides (CNAs).

NATCEP participants are required to take 75 hours of training in certain areas that are critical for performing their role as a CNA, such as infection control, residents’ rights, and basic nursing skills. While these federal requirements specify the topics and number of hours that the training must include, they do not specify how the training must be delivered. CMS recommends that states evaluate their NATCEP and consider allowing some of the time worked by the nurse aides during the PHE to count toward the 75-hour training requirement. However, states must ensure that all of the required areas of training are addressed and that any gaps in onsite training that are identified are fulfilled through supplemental training.

CMS waived the requirements that prohibit a nursing home from using any individual working in the facility as a nurse aide for more than four months unless they complete certain requirements.

Though this waiver is not being terminated at this time, CMS is advising stakeholders that the four-month regulatory timeframe will be reinstated when the blanket waiver ends and will start at that time. In other words, nurse aides will have the full four-month period starting from the end of the blanket waiver to successfully complete the required training and certification, regardless of the amount of time worked during the time the waiver was in effect.

LeadingAge NY has reached out to the Department of Health (DOH) to determine if they will issue additional guidance around the nurse aide certification issues outlined in the CMS guidance.

Contact: Elliott Frost, efrost@leadingageny.org, 518-441-8761