On April 8, 2021, the Quality, Safety & Oversight Group at Centers for Medicare & Medicaid Services (“CMS”) issued a memorandum entitled “Updates to Long-Term Care (LTC) Emergency Regulatory Waivers Issued in Response to COVID-19” (“Blanket Waiver Update Memo”) that announced the termination of several blanket waivers for skilled nursing facilities (“SNFs”) related to resident transfers, care plans and assessments. As a result, SNFs will have to review and adapt their practices and procedures. CMS issued the termination of the SNF waivers as part of its review of the need for existing waivers issued in response to the Public Health Emergency (“PHE”). In 2020, in response to the PHE and under its authority at section 1135 of the Social Security Act, CMS enacted several temporary emergency blanket waivers which were intended to provide nursing homes with flexibility to respond to the COVID-19 pandemic.
Section 483.15 – Transfer and Discharge
Under 42 CFR 483.15, SNFs are 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. Under the blanket waivers, SNFs did not have to follow these guidelines.
Under the Blanket Waiver Update Memo, CMS is terminating the waiver at 42 CFR 483.15(c)(4)(ii) regarding notice of transfer of discharge. As a result, SNFs must provide notice to a resident and resident representative at least 30 days or as soon as practicable prior to transfer or discharge.
Section 483.10 – Roommate Changes
Under 42 CFR 483.15, before the emergency blanket waiver related to notice before room changes, SNFs were required to notify the resident prior to making a room or roommate change. These waivers allowed SNFs to notify residents of a room change or transfer after the transfer has occurred, which helped SNFs to quickly transfer a resident to another unit for cohorting purposes. Under the blanket waivers, SNFs did not have to follow these guidelines.
Under the Blanket Waiver Update Memo, CMS is terminating the waiver at 42 CFR 483.10(e)(6) regarding providing written notice before a room/roommate change. As a result, SNFs must provide notice to residents prior to change of room or roommate.
Section 483.21 – Care Planning Requirements
42 CFR 483.21 requires that SNFs home complete a baseline care plan and comprehensive care plan within 48 hours and 7 days of admission to the SNF, respectively. As part of the blanket waivers, CMS waived these requirements when transferring or discharging residents to another long‑term care facility requirements for the certain cohorting purposes of admission, after a comprehensive Minimum Data Set (“MDS”).
Under the Blanket Waiver Update Memo, CMS is terminating the waiver at 42 CFR 483.21 regarding these care plan requirements. As a result, SNFs must complete baseline care plans within 48 hours of admission and comprehensive care plans within 7 days of completion of the comprehensive assessment.
Section 483.20 – Minimum Data Set Timeframe Requirements
As part of the blanket waivers, CMS waived the MDS timeframe requirements at 42 CFR 483.20 for assessments to allow providers flexibility in completing and transmitting assessments. This action was intended to allow SNFs to prioritize infection control efforts in response to the PHE.
Under the Blanket Waiver Update Memo, CMS is terminating the waiver at 42 CFR 483.20 regarding these MDS reports. As a result, SNFs must provide timely completion and submission of all required MDS assessments.
Section 483.35(d) – Training and Certification of Nurse Aides
To help SNFs address staffing shortages during the pandemic, 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.
CMS is not ending at this time the waivers at §483.35(d) related to training and certification of nurse aides.
CMS recommends that states evaluate their Nurse Aide Training and Competency Evaluation Programs and consider allowing some of the time worked by the nurse aides during the PHE to count towards the 75-hour training requirement. States must also ensure that all of the required areas of training per 42 CFR 483.152(b) are addressed, and any gaps in onsite training that are identified are fulfilled through supplemental training. CMS further reminds states that nurse aides must still successfully pass the state’s competency exam per 42 CFR 483.154.
In the blanket waivers, CMS waived the requirements that prohibit a SNF from using any individual working in the SNF as a nurse aide for more than four months unless they complete certain requirements under 42 CFR 483.35(d)(1). While this waiver has been in effect, many nurse aides have been able to work longer than four months to support staffing needs. In the Blanket Waiver Update Memo, CMS advised states, SNFs and stakeholders that the 4-month regulatory timeframe will be reinstated when the blanket waiver ends and will start at that time. As a result, nurse aides will have the full 4-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.
Effective Date
The four blanket waivers mentioned above and in the Blanket Waiver Update Memo will end effective May 10, 2021.
Policy Updates Needed
SNFs should review and revise any of their policies that they revised during the PHE to comply with these changes.
If you have questions or would like additional information about this topic, please contact:
- Sean Fahey at (317) 977-1472 or sfahey@wp.hallrender.com; or
- Your regular Hall Render attorney.
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