The Beginning of the End? CMS Begins Ending Emergency COVID-19 Blanket Waivers

In response to the COVID-19 Public Health Emergency, CMS implemented blanket waivers to several regulations to allow nursing facilities the flexibility necessary to respond to the pandemic. As the pandemic begins to wane, CMS expects to roll the Social Security Act section 1135 waivers back and return the regulatory framework to its pre-pandemic normal. Last week, CMS announced the first of these rollbacks.

End of Certain COVID-19 Public Health Emergency Blanket Waivers

On April 8, 2021, CMS announced the end of three blanket waivers effective May 10, 2021. In a memorandum available here, CMS announced the end of the following waivers:

• The blanket waiver for notifying residents before transfer or discharge or before a room or roommate change. Nursing facilities must again give residents 30-day advance notice or notice as soon as practicable before any of these events occur. Importantly, CMS is only ending the waivers concerning the notice and timing requirements; nursing facilities may still transfer, discharge, or change roommates or rooms to cohort residents.

• The blanket waiver for completing a base care plan and a comprehensive care plan within 48 hours and seven days, respectively, of admission to a nursing facility. CMS had waived these requirements when a facility was transferring or discharging residents for the purpose of cohorting suspected resident cases. However, facilities will be required to comply with these requirements for all admissions once again.

• The blanket waiver for the timeline requirements for when facilities had to complete Minimum Data Set (MDS) assessments. Facilities must again conduct MDS assessments for all residents and new admissions as described in 42 CFR § 483.20(b)(2).

Training and Certification of Nurse Aides

Staffing and training waivers have been critical to meeting resident needs during the pandemic. In its memorandum, CMS provided guidance on when waivers for the Nurse Aide Training and Competency Evaluation Programs (NATCEP) will come to an end. To help alleviate staffing shortages during the pandemic, CMS provided a blanket waiver to allow nurse aides to work for longer than four months without having completed their required, state approved NATCEP evaluation. As long as nurse aides could demonstrate the necessary competency in skills and techniques needed to care for residents, they could continue to work and provide care beyond the typical four-month grace period. CMS is not ending this waiver yet. Instead, CMS explained how uncertified nurse aides working under the blanket waiver may come into compliance when this waiver ends.

Current regulations require NATCEP participants to receive 75 hours of training in certain areas integral to their role as a Certified Nurse Aide (CNA). However, the regulations are silent as to how this required training must be delivered. CMS believes that much of this required training has been obtained via on-the-job experience obtained by CNAs working under the blanket waiver. Therefore, CMS is recommending that states evaluate NATCEP programs and consider allowing some of a CNA’s on-the-job hours to count toward the required 75 hours. States must still ensure that all the topics required by 42 CFR § 483.152(b) are addressed by the CNA’s training and must supplement this on-the-job experience with additional training as necessary.

While CMS is not ending the NATCEP four-month waiver at this time, many stakeholders have questioned CMS about what will happen when CMS does end it. Specifically, facilities have wanted to know what will happen to nurse aides who have worked longer than four months, but have yet to complete all the requirements described in 42 CFR § 483.35(d). In this memorandum, CMS advises facilities that, once the blanket waiver is terminated, the four-month regulatory timeframe will be reinstated. This means nurse aides will have four months from the end of the blanket waiver to successfully complete all NATCEP requirements, regardless of the amount of time the CNAs worked under the waiver. This will give facilities and nurse aides a four-month grace period to ease back into typical staff training requirements.

Based on these announcements and guidance, facilities and nurse aides working pursuant to this blanket waiver should look to become fully licensed as a CNA as soon as possible. To that end, on March 11, 2021, Governor Northam issued his Third Amended Executive Order 57, stating that nurse aides working in long term care facilities under this federal waiver would be eligible to take the National Nurse Aide Assessment Program Examination to become a licensed CNA upon submission of a completed application and employer’s written verification of competency and employment as a temporary nurse aide. Executive Order 57 will only last as long as the Virginia has declared a COVID-19 Public Health Emergency. Therefore, temporary nurse aides not otherwise barred from certification should take advantage and become fully licensed soon.

Conclusion

CMS regulatory changes and guidance anticipate that long term care facilities and staff will begin planning for operations in a post-COVID-19 pandemic world. Nursing facilities and their staffs should plan accordingly and take advantage of current licensing waivers to ensure a seamless transition from the blanket waiver period.

Should you, your facility, or your business have any questions about these impending changes, please contact Peter Mellette, Harrison Gibbs, or Elizabeth Dahl Coleman at Mellette PC.

This client advisory is for general educational purposes and does not cover every provision of CMS’s guidance or Executive Order 57. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.