By Angela Sorbelli, J.D., LL.M, MBA, CHC

On April 7, 2022, the Centers for Medicare & Medicaid Services (CMS) issued a Press Release detailing the beginning of the phase-out activity for the temporary emergency waivers that have been in effect since the beginning of the COVID-19 Public Health Emergency (PHE). CMS has focused this first phase out on waivers primarily impacting long-term care facilities, indicating that although these flexibilities were implemented to aid in the operational efficiencies of skilled nursing facilities and nursing homes during the pandemic, there is now heightened concern that the waivers have removed the minimum standards for quality in these facilities and have contributed to a heightened risk of other health and safety issues.

In an effort to allow impacted providers an opportunity to prepare for the adjustment back to pre-COVD policies, CMS has categorized the expiration of specific waivers in two groups: the first group is slated to expire within 30-days of the date of the Press Release (May 7, 2022), while the second group is slated to expire with 60-days of the date of the Press Release (June 6, 2022).

The broad list of waivers scheduled to expire include the following:

Ending in 30-days:

• Resident Groups – 42 CFR §483.10(f)(5)
• Physician Delegation of Tasks in SNFs – 42 CFR §483.30(e)(4)
• Physician Visits – 42 CFR §483.30(c)(3)
• Physician Visits in Skilled Nursing Facilities/Nursing Facilities – 42 CFR §483.30
• Quality Assurance and Performance Improvement (QAPI) – 42 CFR §483.75(b)–(d) and (e)(3)
• Detailed Information Sharing for Discharge Planning for Long-Term Care (LTC) Facilities – 42 CFR §483.21(c)(1)(viii)
• Clinical Records – 42 CFR §483.10(g)(2)(ii)

Ending in 60-days:

• Physical Environment for SNF/NFs – 42 CFR §483.90
• Equipment Maintenance & Fire Safety Inspections for ESRD facilities – 42 CFR §494.60(b) and(d)
• 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
• 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)
• 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)
• Life Safety Code for Inpatient Hospice, ICF/IIDs, and SNFs/NFs – 42 CFR §§418.110(d), 483.470(j), and 483.90(a)
• Paid Feeding Assistants for LTC facilities: 42 CFR §§483.60(h)(1)(i) and 483.160(a)
• In-Service Training for LTC facilities – 42 CFR §483.95(g)(1)
• Training and Certification of Nurse Aides for SNF/NFs – 42 CFR §483.35(d) (Modification and Conditional Termination)

CMS has also updated the COVID-19 Emergency Declaration Blanket Waivers with the specific details regarding what specifically was waived and how the administrative flexibilities impacted providers.

What does this methodical sun-setting of these specific waivers signify?

According to Xavier Becerra, Secretary of the Department of Health & Human Services, the Federal Government will take steps to ensure healthcare providers are given advance notice of when the PHE will end to allow the industry to adjust and prepare for the reversion back to pre-pandemic regulatory framework.

Secretary Becerra last reviewed the national PHE on January 16, 2022 and extended it another 90-days until April 16, 2022. Given that there has been no indication that the PHE would not be renewed (at least in part) before the April 16th end date, it is likely to be extended. However, the communication from CMS dated April 7, 2022 may be the first indication that the Government may now be considering an end to the PHE in the coming months.

Have questions? Contact Angela Sorbelli, J.D., LL.M, MBA, CHC