United States: CMS Releases Additional COVID-19 Blanket Waivers For Health Care Providers

On May 11, 2020, the Centers for Medicare & Medicaid Services (CMS) released a new suite of blanket waivers for hospitals and other health care providers in response to the COVID-19 public health emergency.¹ The blanket waivers have a retroactive effective date of March 1, which extends through the end of the public health emergency declaration and, in CMS's view, "provide the flexibilities needed to take care of patients during the COVID-19 public health emergency." The new blanket waivers relate to the following:

1. Expanding hospitals' ability to offer long-term care services (swing beds)

Pursuant to section 1135(b)(1) of the Social Security Act, CMS is waiving the requirements at 42 C.F.R. § 482.58 subsections (a)(1)-(4) to allow hospitals to establish skilled nursing facility (SNF) swing beds payable under the SNF prospective payment system (PPS) to provide additional options for hospitals with patients who no longer require acute care, but are unable to find placement in another SNF. This waiver applies to all Medicare-enrolled hospitals, except psychiatric and long-term care hospitals that need to provide post-hospital SNF level swing-bed services for non-acute care patients in hospitals, so long as the waiver is not inconsistent with the state's emergency preparedness or pandemic plans. CMS has noted that the waiver is permissible for swing bed admissions during the COVID-19 public health emergency, but with an understanding that hospitals must have a plan to discharge swing bed patients as soon as practicable, when a SNF bed becomes available, or when the public health emergency ends, whichever occurs first.

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 the SNF provisions set forth at 42 C.F.R. § 482.58(b) to the extent not waived; and
• Be consistent with the state's emergency preparedness or pandemic plans.

In order to add swing beds, hospitals must call the CMS Medicare Administrative Contractor (MAC) enrollment hotline and attest to CMS that:

• They have 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 currently not willing to accept or able to take patients because of the COVID-19 public health emergency;
• 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 public health emergency ends, whichever occurs first.

2. Waiving certain eligibility requirements for Sole Community Hospitals (SCHs)

CMS is waiving certain eligibility requirements for hospitals classified as SCHs prior to the public health emergency. Specifically, CMS is waiving:

• The distance requirements at 42 C.F.R. § 412.92(a), (a)(1), (a)(2), and (a)(3); and
• The market share and bed requirements (as applicable) at 42 C.F.R. § 412.92(a)(1)(i) and (ii).

CMS is waiving these requirements for the duration of the public health emergency to allow SCHs to meet the needs of the communities they serve (e.g., increasing capacity and promoting appropriate cohorting of COVID-19 patients) and to address concerns that hospital expansion to meet the COVID-19 demand could interfere with an SCH's ability to satisfy the eligibility criteria. MACs will revert to their standard practice for evaluating SCH eligibility requirements when the public health emergency ends.

3. Waiving certain eligibility requirements for Medicare-Dependent, Small Rural Hospitals (MDHs)

CMS is waiving certain eligibility requirements for hospitals classified as MDHs prior to the public health emergency. Specifically, CMS is waiving:

• The 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 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 be attributable to individuals entitled to Medicare Part A benefits during the specified hospital cost reporting periods.

Similar to the SCH waivers, CMS is also waiving these MDH eligibility requirements for the duration of the public health emergency to allow MDHs to meet the needs of the communities they serve. MACs will revert to their standard practice for evaluating MDH eligibility requirements when the public health emergency ends.

4. Updating specific life safety code requirements for hospitals, hospice facilities, and long-term care facilities

CMS is waiving and modifying particular waivers for hospitals at 42 C.F.R. § 482.41(b), critical access hospitals at 42 C.F.R. § 485.623(c), inpatient hospice facilities at 42 C.F.R. § 418.110(d), intermediate care facilities for individuals with intellectual disabilities at 42 C.F.R. § 483.470(j), and SNFs and nursing facilities at 42 C.F.R. § 483.90(a). Pursuant to these waivers and modifications:

• Alcohol-based hand rub 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. However, CMS noted that, due to the flammable nature of ABHRs, restrictions on the storage and location of the containers still apply, and bulk containers over five gallons must be stored in a protected hazardous materials area.
• Fire drills. Due to the inadvisability of quarterly fire drills that inevitably group staff together, CMS is permitting a documented orientation training program related to the current fire plans in lieu of conducting fire drills.
• Temporary construction. CMS is waiving requirements that would otherwise not permit temporary walls and barriers between patients.

5. Modifying training requirements for paid feeding assistants

CMS is modifying the requirements at 42 C.F.R. §§ 483.60(h)(1)(i) and 483.160(a) regarding the required training timeframe of paid feeding assistants. Specifically, CMS is allowing facilities to reduce training from a minimum of eight hours to a minimum of one hour. CMS is not waiving any other requirements under 42 C.F.R. § 483.60(h) related to paid feeding assistants or the required training content at 42 C.F.R. § 483.160(a)(1)-(8), which contains infection control training, among other things. CMS is also not waiving or modifying the requirements at 42 C.F.R. § 483.60(h)(2)(i), which require that a feeding assistant must work under the supervision of a registered nurse or licensed practical nurse.

6. Allowing occupational therapists, physical therapists, and speech language pathologists to perform initial and comprehensive assessment for all patients

CMS revised its existing waiver of 42 C.F.R. §§ 484.55(a)(2) and 484.55(b)(3) that allowed occupational therapists to perform the initial and comprehensive assessment for all patients receiving therapy services as part of the plan of care by expanding the waiver to include physical therapists and speech language pathologists. The waiver now permits occupational therapists, physical therapists, and speech language pathologists 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. CMS noted that therapists must act within their state scope of practice laws when performing the initial and comprehensive assessment, and access a registered nurse or other professional to complete sections of the assessment that are beyond the therapist's scope of practice. CMS also explained that expanding the category of therapists who may perform the initial and comprehensive assessment provides home health agencies with additional flexibility that may decrease patient wait times for the initiation of home health services.

7. Expanding availability of renal dialysis services to end-stage renal disease (ESRD) patients

CMS also revised 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 directly on its main premises (or other premises that are contiguous with the main premises). The initial waiver permitted services to be furnished to the provider's patients residing in nursing homes, and 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)." CMS continues to require that services provided to these patients or residents are under the direction of the same governing body and professional staff as the resident's usual Medicare-certified dialysis facility. Further, CMS is requiring that the 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.

A complete listing of CMS's blanket waivers is available here.

Footnotes

1 CMS has implemented these waivers on a "blanket" basis, meaning they apply automatically to all applicable providers and suppliers without requiring an application for an individual waiver pursuant to section 1135(b) of the Social Security Act. Generally speaking, these blanket waivers allow providers and suppliers to be reimbursed for services and not be subjected to sanctions for noncompliance with certain requirements that would otherwise prohibit or limit payment under normal circumstances.

This article is presented for informational purposes only and is not intended to constitute legal advice.