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CMS Issues Guidance for the Expiration of the COVID-19 Public Health Emergency

On May 1, 2023, the Centers for Medicare and Medicaid Services (CMS) issued memorandum QSO-23-13-ALL advising providers of the termination of certain waivers that were in place as a result of the COVID-19 Public Health Emergency (PHE). Section 1135 of the Social Security Act permits waivers to certain regulations to allow for greater flexibility during a PHE. With the declared end of the PHE on May 11, 2023, these waivers will end.

In reviewing the QSO, members should pay particular attention to pages 2-6. Members should take time to review their current policies and procedures to ensure that they align with current requirements, as some of the conditions under which they may have been operating during the PHE may no longer apply. Particularly noteworthy are the following:

Staff Vaccination: CMS will soon end the requirement that covered providers and suppliers establish policies and procedures for staff vaccination. CMS will share more details regarding ending this requirement at the anticipated end of the PHE.

Emergency Preparedness (EP): CMS regulations for EP require the provider/supplier to conduct exercises to test their EP plan to ensure that it works and that staff are trained appropriately about their roles and the provider/supplier’s processes. During or after an actual emergency, the EP regulations allow for a one-year exemption from the requirement that the provider/supplier perform testing exercises. The exemption only applies to the next required full-scale exercise (not the exercise of choice), based on the 12-month exercise cycle. The cycle is determined by the provider/supplier (e.g., calendar, fiscal, or another 12-month timeframe). The exemption only applies when a provider/supplier activates its EP program for an emergency event. Providers/suppliers are expected to return to normal operating status and comply with the regulatory requirements for EP with the conclusion of the PHE. This includes conducting testing exercises based on the regulatory requirements for specific provider/supplier types as follows:

  • Inpatient Providers and Suppliers: The provider/supplier must conduct a full-scale exercise within its annual cycle for 2023 and an exercise of choice.

Three-Day Prior Hospital Stay: These waivers will terminate immediately with the expiration of the PHE. This means that all new skilled nursing facility (SNF) stays beginning on or after May 12th will require a qualifying hospital stay before Medicare coverage. Additionally, for any new benefit period that begins on or after May 12th, the beneficiary will need to have completed a 60-day wellness period.

Alcohol-based Hand-Rub (ABHR) Dispensers: CMS waived the requirement for ABHR dispensers for SNFs/NFs at 42 CFR § 483.90(a) during the PHE because of the need for the sudden increased use by staff and others of ABHR in infection control. The waiver of this requirement ends with the conclusion of the PHE.

Preadmission Screening and Annual Resident Review (PASARR): CMS waived 42 CFR § 483.20(k), allowing nursing homes to admit new residents who have not received Level I or Level II Preadmission Screening. The waiver of this requirement ends with the conclusion of the PHE.

Resident Roommates and Grouping: CMS waived the requirements in 42 CFR § 483.10(e)(5) and (7) solely for the purposes of grouping or cohorting residents with respiratory illness symptoms and/or residents with a confirmed diagnosis of COVID-19 and separating them from residents who are asymptomatic or tested negative for COVID-19. The waiver of these requirements ends with the conclusion of the PHE (note that (e)(6) was terminated on May 10, 2021 per QSO-21-17-NH).

Resident Transfer and Discharge: CMS waived requirements in 42 CFR § 483.10(c)(5) to provide advance notification of options relating to transfer/discharge to another facility and § 483.15(c)(5)(i) and (iv), (c)(9), and (d) for the written notice of transfer or discharge to be provided before the transfer or discharge. This notice must be provided as soon as practicable (with some exceptions) to allow a long term care (LTC) facility to transfer or discharge residents to another LTC facility solely for cohorting purposes. The waiver of these requirements ends with the conclusion of the PHE (note that § 483.10(e)(3) was terminated on May 10, 2021 per QSO-21-17-NH).

Nurse Aide Training Competency and Evaluation Program (NATCEP): CMS waived the requirements that a SNF and NF not employ anyone for longer than four months unless they meet the training and certification requirements. CMS terminated this blanket waiver; however, individual states and facilities could apply for a separate time-limited waiver of these requirements for instances where the volume of nurse aides that had to complete a state-approved NATCEP exceeded the availability of approved training and testing programs. All individual waivers granted to states and individual facilities will terminate at the conclusion of the PHE, unless a facility or state has been granted a waiver that expires prior to the end of the PHE. Uncertified nurse aides working in an LTC facility covered by a waiver granted to a state or individual facility will have four months from the date the PHE ends (or from the termination date of the facility’s or state’s waiver, if earlier) to complete a state-approved NATCEP. This includes those LTC facilities or facilities in states that were granted an extension of the waiver after Oct. 6, 2022.

Requirements for Reporting Related to COVID-19: CMS published an Interim Final Rule with Comments (IFC) (CMS-5531-IFC) requiring all LTC facilities to report COVID-19 information using the Centers for Disease Control and Prevention (CDC) National Healthcare Safety Network (NHSN) (42 CFR § 483(g)). Additionally, facilities were required to inform residents, their representatives, and families following the occurrence of either a single confirmed infection of COVID-19 or three or more residents or staff with new onset of symptoms. CMS is exercising enforcement discretion and will not expect providers to meet the requirements at 42 CFR § 483.80(g)(3) of reporting to families at this time. NHSN reporting requirements remain in effect until Dec. 31, 2024.

Requirements for COVID-19 Testing: On Aug. 25, 2020, CMS issued an IFC (CMS-3401-IFC) requiring LTC facilities to perform routine testing of residents and staff for COVID-19 infection. As noted in the IFC, this testing regulation will expire with the end of the PHE.

Focused Infection Control (FIC) Surveys: QSO-20-31-All requires states to conduct FIC surveys in 20 percent of their nursing homes in fiscal year (FY) 2023. They are not required to conduct additional FIC surveys in FY 2024. CMS will continue to make the FIC survey available for states to use at their discretion (e.g., to conduct complaint surveys when concerns related to COVID-19 infection control arise).

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