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Although many states are beginning to relax stay-at-home and other restrictions in response to the novel coronavirus pandemic, the Centers for Medicare and Medicaid Services (CMS) continues to issue or revise COVID-19 emergency declaration blanket waivers to facilitate efforts by health care providers to respond to and contain the spread of the disease. The latest blanket waivers were announced by CMS on May 11. As is the case with all such waivers, the new or revised waivers are retroactive to March 1, 2020 and will extend through the end of the emergency declaration.
Medicare-enrolled hospitals, except for psychiatric hospitals and long term care hospitals – In response to the difficulty many hospitals have experienced discharging patients to skilled nursing facilities (SNFs) during the COVID-19 public health emergency (“PHE”), CMS is expanding the ability of hospitals to utilize “swing beds” whereby the hospital offers long-term care services for patients who no longer require acute care services but who meet SNF eligibility criteria. Specifically, CMS is waiving the hospital eligibility criteria of 42 C.F.R. 482.58(a)(1)-(4).1 In order to qualify for this waiver, hospitals must:
- Not use SNF swing beds for acute level care.
- Comply with all other hospital conditions of participation and those SNF requirements specified at 42 C.F.R. § 482.58(b)2 to the extent not waived.3
- Be consistent with the state’s emergency preparedness or pandemic plan.
Further, the hospital must make the following attestations to CMS:
- The hospital has made a good faith effort to exhaust all other options;
- There are no SNFs within the hospital’s catchment area that, under normal circumstances would have accepted SNF transfers, but are presently not willing to accept or able to take patients because of the PHE;
- The hospital meets all waiver eligibility requirements; and
- The hospital has a plan to discharge patients as soon as practicable when a SNF bed becomes available, or when the PHE ends, whichever is earlier.
Hospitals Classified as Sole Community Hospitals (SCHs)
CMS is waiving certain eligibility requirements at 42 CFR § 412.92(a) for hospitals classified as SCHs prior to the PHE. Specifically, CMS is waiving the distance requirements at paragraphs (a), (a)(1), (a)(2), and (a)(3) of 42 C.F.R. § 412.92, and is also waiving the “market share” and bed requirements (as applicable) at 42 C.F.R. § 412.92(a)(1)(i) and (ii). CMS states the move is intended to provide for increased capacity and to promote appropriate cohorting of COVID-19 patients.
Hospitals Classified as Medicare-Dependent, Small Rural Hospitals (MDHs)
For hospitals classified as MDHs prior to the PHE, CMS is waiving the eligibility requirement at 42 C.F.R. § 412.108(a)(1)(ii) that the hospital has 100 or fewer beds during the cost reporting period, and the eligibility requirement at 42 C.F.R. § 412.108(a)(1)(iv)(C) that at least 60 percent of the hospital’s inpatient days or discharges were attributable to individuals entitled to Medicare Part A benefits during the specified hospital cost reporting periods. As is the case with SCHs, CMS states that the waiver is intended to provide for increased capacity and promote appropriate cohorting of COVID-19 patients.
Paid Feeding Assistants
CMS is modifying the requirements at 42 C.F.R. §§ 483.60(h)(1)(i) and 483.160(a) regarding required training of paid feeding assistants. Specifically, CMS is allowing facilities to reduce training from a minimum of eight (8) hours to a minimum of one (1) hour. CMS, however, is not waiving any other requirements with respect to paid feeding assistants, including the content of the required training or supervision requirements. Given the range of topics to be covered during training, including infection control, providers should not expect to be able to fulfill the training requirements in one (1) hour and should plan accordingly.
Home Health Agencies (HHAs)
CMS is revising its existing waiver that allows Occupational Therapists (OTs) to perform initial and comprehensive assessments beyond cases in which only therapy services are ordered by expanding it to permit Physical Therapists (PTs) and Speech Language Pathologists (SLPs) to do the same. The waiver thus permits OTs, PTs, or SLPs to perform the initial and comprehensive assessment for all patients receiving therapy services as part of the plan of care, to the extent permitted under state law, regardless of whether or not the service establishes eligibility for the patient to be receiving home care. Therapists must act within their state’s scope of practice laws when performing initial and comprehensive assessments, and access a registered nurse or other professional to complete sections of the assessment that are beyond their scope of practice. CMS explains that the waiver is intended to provide HHAs with additional flexibility that may decrease patient wait times for the initiation of home health services.
End-Stage Renal Dialysis (ESRD) Facilities
CMS is revising its existing waiver of 42 C.F.R. § 494.180(d), which requires the governing body of an ESRD facility to ensure that services are furnished on its main premises (or contiguous area). The initial waiver permitted services to be furnished to the provider’s patients residing in nursing homes. The revision expands the waiver to include “nursing homes, long-term care facilities, assisted living facilities, and similar types of facilities, as licensed by the state (if applicable).” The revision also makes a corresponding change to the waiver requirement specifying the place where equipment and supplies must be maintained. The May 11 version of the waiver requires that dialysis facility staff:
- Furnish all dialysis care and services;
- Provide all equipment and supplies necessary;
- Maintain equipment and supplies in off-premises location; and
- Complete all equipment maintenance, cleaning and disinfection using appropriate infection control procedures and manufacturer’s instructions for use.
Life Safety Code (LSC) Waivers
The final new waivers apply to multiple classes of health care facilities. The following waivers apply to Hospitals, Critical Access Hospitals, Inpatient Hospice, Intermediate Care Facilities for Individuals with Intellectual Disabilities, and SNFs/NFs:
- Alcohol-based Hand-Rub (ABHR) Dispensers – CMS is waiving the prescriptive requirements for the placement of alcohol based hand rub ABHR dispensers for use by staff and others due to the need for the increased use of ABHR in infection control. Nevertheless CMS notes that because of the flammable nature of ABHRs, there are restrictions on the storage and location of bulk containers, as well as access thereto.
- Fire Drills – Rather than requiring quarterly fire drills, CMS is permitting facilities to implement a documented orientation training program related to the current fire plan. The program must consider current facility conditions. CMS states that the training must instruct employees, including existing, new or temporary employees, on their current duties, life safety procedures and the fire protection devices in their assigned area.
- Temporary Construction – CMS is waiving requirements that would otherwise prohibit temporary walls and barriers between patients.
With the exception of the hospital swing bed waiver, most of the new or expanded waivers represent more of a circumscribed, incremental approach by CMS. Nevertheless, providers to which they apply may find that they facilitate their ability to meet the needs of the communities they serve. As with any waiver, providers must carefully consider the implications of such waivers to their existing operations and consult legal counsel for advice.
 Generally, (1) the facility has fewer than 100 hospital beds, excluding beds for newborns and beds in intensive care type inpatient units; (2) the hospital is located in a rural area; (3) the hospital does not have in effect a 24-hour nursing waiver; and (4) the hospital has not had a swing-bed approval terminated within the two years previous to application.
 Generally (1) certain of the resident rights requirements; (2) certain provisions relating to admission, transfer and discharge rights; (3) prohibitions and certain provisions relating to freedom from abuse, neglect, and exploitation; (4) a requirement to provide medically-related social services; (5) discharge summary requirements (note: discharge summary provisions moved to 42 C.F.R. § 483.21(c)(2) in 2016); (6) specialized rehabilitative services provisions; and (7) certain dental services requirements.
 Note: CMS, solely for purposes of cohorting, has waived 42 C.F.R. §§ 483.15(c)(3), (c)(4)(ii), (c)(5)(i), (c)(5)(iv) and (c)(7).