CMS Guidance Ends Waivers for COVID-19
On April 7, the Centers for Medicare & Medicaid Services (CMS) issued an update to the COVID-19 emergency declaration blanket waivers for specific providers. The memorandum, which was issued by the Director of the Quality, Safety & Oversight Group, details the numerous changes that will take place within 30 or 60 days of the memorandum’s publication.
According to the memorandum, CMS plans to continue to review the need for existing emergency blanket waivers that were issued in the wake of the COVID-19 pandemic. In the memorandum, CMS notes that the policies and different practices of certain health facilities—including nursing facilities and in-patient hospices—have lessened the need for certain types of waivers.
The new guidelines will have a wide-ranging impact. For skilled nursing facilities, there are multiple emergency declaration blanket waivers that will be ending 30 days from the publication of the CMS memorandum. For instance, the waiver that allowed a physician to delegate a task that they were regulated to perform personally to a physician assistant, nurse practitioner, or clinical nurse specialist, is ending.
Additionally, the waiver that permitted physician visits to be delegated to nurse practitioners, physician assistants, or clinical nurse specialists who are “not an employee of the facility, who is working in collaboration with a physician, and who is licensed by the State and performing within the state’s scope-of-practice laws” is ending.
Waivers are also ending for specific matters involving Quality Assurance and Performance Improvement, information sharing for discharge planning for long-term care, and clinical records, among other areas.
For various-provider types, multiple waivers are slated to end 60 days from the publication of the CMS memorandum. This includes the waiver temporarily allowing rooms in a long-term care facility that are “not normally used as a resident’s room” to be utilized in order to accommodate beds and residents “for resident care in emergencies and situations needed to help with surge capacity.”
Additionally, the CMS memorandum provides that the waiver related to the requirement for on-time preventive maintenance of both dialysis machines and “ancillary dialysis equipment” is also ending, among many other changes. There are applicable waivers that will stay in effect for both hospitals and critical access hospitals.
The CMS notes in its memorandum that while the waivers previously provided flexibility, there is concern that they have the potential to cause the quality of care to suffer, noting that onsite surveys have indicated that residents have concerns related to issues such as abuse, weight loss, and depression.
CMS is concerned that the waiver of certain regulatory requirements has contributed to these outcomes and raises the risk of other issues.
We will continue to monitor CMS updates. If you have further questions or concerns about current guidance, contact a member of Foster Swift's health care law group.
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