On January 30, 2023, the Biden Administration announced the COVID public health emergency (“PHE”) will expire and end on May 11, 2023.
The end of the PHE has a significant impact on skilled nursing facilities (“SNFs”) as it ends the remaining regulatory blanket waivers, revisits resident Medicaid eligibility and changes many COVID regulations that were issued during the PHE.
There are several key areas of focus for SNFs to assess what will change and what will not change as May 11, 2023 approaches.
Blanket Waivers
During the PHE, the Centers for Medicare & Medicaid Services (“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 (“HHS”) 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 blanket waivers currently impacted by the end of the PHE include:
- Pre-Admission Screening and Annual Resident Review (PASRR). CMS has allowed states and nursing homes to suspend these assessments for new residents for thirty 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. CMS will end this waiver at the end of the PHE.
- 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 an 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.
- 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.
- Provider Enrollment. During the PHE, CMS established toll-free hotlines for physicians, non-physician practitioners and Part A certified providers and suppliers who have established isolation facilities to enroll and receive temporary Medicare billing privileges. When the PHE ends, the hotlines will be shut down.
- Expedited Enrollment. CMS expedited any pending or new applications from providers and suppliers, including physicians and non-physician practitioners received on or after March 1, 2020. When the PHE ends, CMS will resume normal application processing times.
- 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. CMS will end this waiver at the end of the PHE.
- Physician Visits/Telehealth. CMS waived the requirement at 42 CFR § 483.30(c)(3) that all required physician visits (not already exempted in 42 CFR § 483.30(c)(4) and (f)) must be made by the physician personally. CMS waived requirements at section 1834(m)(4)(E) of the Social Security Act and 42 CFR § 410.78 (b)(2) to expand the types of health care professionals that can provide telehealth services. Section 4113 of the Consolidated Appropriations Act of 2023 reset these extended services through December 31, 2024. As a result, SNFs may use telehealth for approved services that include some physician visits.
COVID Regulations and the PHE
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.
- 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 PHE. Remember that nursing homes must have infection prevention and control according to national Centers for Disease Control and Prevention (“CDC”) standards, as well as test for symptoms and close contacts.
- 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. This interim final rule did provide for an ending date. As a result, SNFs need to continue to educate and offer COVID vaccination to staff and residents past the end of the PHE and at least until May 2024.
- 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. This interim final rule did provide for an ending date. As a result, SNFs need to continue to require staff, including volunteers, in SNFs to have the first two-shot series of the COVID vaccination or be granted an approved exemption past the end of the PHE and at least until May 2024.
- 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. In its Calendar Year (CY) 2022 Home Health Prospective Payment System (PPS) final rule (“CY 2022 Rule”), CMS established December 31, 2024, as a termination date for most COVID reporting except for vaccination status, which will end in May 2024.
- COVID SNF Notification Requirements. Also in 2020, CMS issued an interim final regulation to require that SNF 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.
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; or
- Your primary Hall Render contact.
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Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot give legal advice outside of an attorney-client relationship.
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