Updates to LTC Emergency Regulatory Waivers Issued in Response to COVID-19

Mary Madison, RN, RAC-CT, CDP 
Clinical Consultant – Briggs Healthcare

On Thursday, April 8, 2021, CMS issued QSO-21-17-NH.

This is an important QSO memorandum for all LTC providers so review it carefully!   CMS is ending select emergency blanket waivers.

  • CMS is only ending the waivers at 42 CFR §483.10(e)(6) for providing written notice before a room/roommate change, and at 42 CFR §483.15(c)(4)(ii) 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.
  • CMS is ending the emergency blanket waiver for 42 CFR§483.21(a)(1)(i), (a)(2)(i), and (b)(2)(i).  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 MDS. Similar to rationale for ending other waivers, CMS believes that nursing homes should have developed processes for completing these important care planning tasks.
  • The majority of facilities have been completing and transmitting assessments timely, therefore CMS believes all providers should be able to complete and transmit MDS assessments as required at 42 CFR §483.20. Also, CMS believes nursing homes should have developed practices for completing these assessments timely, which are critical for resident care planning. As a result, CMS is ending the emergency blanket waiver for 42 CFR §483.20.  Note that CMS is not ending the waiver at 42 CFR §483.20(k) related to the Pre-Admission Screening and Annual Resident Review (PASARR) at this time.
  • CMS is not ending the current nurse aide training and certification waiver. However, 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). CMS recommends that states evaluate their NATCEP and consider allowing some of the time worked by the nurse aides during the PHE to count towards the 75-hour training requirement. However, states must ensure that all 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. Lastly, nurse aides must still successfully pass the state’s competency exam per 42 CFR §483.154.

Additionally, 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 (per 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 facilities’ staffing needs. However, nursing homes and nurse aides have raised concerns about what will happen when the waiver ends. For example, CMS has received questions on whether these individuals will need to leave the nursing home immediately when the waiver ends, if they have not completed the requirements for certification in the last four months.

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. However, though nurse aides will have up to four months from the end of the blanket waiver to complete the required training and certification, we strongly encourage states and nurse aides to explore ways to complete all the training and certification requirements as soon as possible.

Effective Date: The four Emergency Blanket Waivers at 42 CFR §483.10(e)(6),

§483.15(c)(4)(ii), §483.20 and §483.21(a)(1)(i), (a)(2)(i), and (b)(2)(i) will end effective May 10,

2021.

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