In March 2020, the Centers for Medicare & Medicaid Services (CMS) enacted several temporary emergency blanket waivers which were intended to provide nursing homes flexibility in responding to the COVID-19 pandemic.
On April 8, 2021, CMS announced the ending of the following temporary waivers effective May 10, 2021:
- Emergency Blanket Waivers for Notifying Residents before Transfer or Discharge (42 CFR §483.15(c)(4)(ii)), or Room or Roommate Change (42 CFR §483.10(e)(6))
- Emergency Blanket Waiver for Care Planning Requirements (§483.21(a)(1)(i), (a)(2)(i), and (b)(2)(i)).
- Emergency Blanket Waiver of Minimum Data Set (MDS) Timeframe Requirements (42 CFR §483.20)
CMS is also providing clarification and recommendations for Nurse Aide Training and Competency Evaluation Programs (NATCEP’s) 42 CFR §483.35(d)).
In regard to Emergency Blanket Waiver for Notifying Residents before Transfer or Discharge, CMS believes nursing homes have developed practices to efficiently cohort residents and provide the required notice in advance. Therefore, effectively May 10, 2021, all facilities are required to resume providing notice per the regulations as follows:
- With 30 days advanced notice, or as soon as practicable before the transfer or discharge of a resident; and
- Before a room or roommate change.
It is important to note that 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 allow facilities to transfer or discharge and change rooms for the sole purposes of infection control cohorting remain in effect.
In regard to Emergency Blanket Waiver for Care Planning Requirements, CMS also believes that facilities have developed processes for completing important care planning tasks. Therefore, effective May 10, 2021, a complete baseline care plan should be developed within 48 hours of admission, and a comprehensive care plan within seven days of admission.
For Emergency Blanket Waiver of Minimum Data Set Timeframe Requirements, CMS believes that since the majority of nursing facilities have been completing and transmitting assessments timely, practices should have been developed for completing the assessments within the required time frames. Therefore, this waiver also has been discontinued. Effective May 10, 2021, all MDS assessments, as required at 42 CFR §483.20, should be completed and transmitted in their respective timeframes.
It is important to 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.
To help nursing homes address staffing shortages during the pandemic, CMS provided a blanket waiver for the nurse aid training and certification requirements at 42 CFR §483.35(d) (except for requirements that the individual employed as a nurse aide be competent to provide nursing and nursing related services at 42 CFR §483.35(d)(1)(i)), specifically to permit nurse aides to work for longer than four months without having completed their training.) This waiver allows facilities to employ individuals beyond four months in a nurse aide role even though they might have not completed a state approved Nurse Aide Training and Competency Evaluation Programs (NATCEP). The individual could continue to work as long as the nursing home ensured that the nurse aide could demonstrate competency in skills and techniques needed to care for residents. CMS is NOT ending the current nurse aide 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).
Federal regulations at 42 CFR §483.152(a) and (b) require that NATCEP participants take 75 hours of training in certain areas that are critical for performing their role as a CNA, such as infection control, residents’ rights, and basic nursing skills. While these federal requirements specify the topics and number of hours that the training must include, the federal requirements do not specify how the training must be delivered. Therefore, CMS recommends that states evaluate their NATCEP, and consider allowing some of the time worked by the nurse aides during the public health emergency to count towards the 75-hour training requirement. However, states must ensure that all of 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. Although this waiver is not being terminated at this time, CMS advised 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, although nurse aides will have up to four months from the end of the blanket waiver to complete the required training and certification, CMS strongly encourages states and nurse aides to explore ways to complete all the training and certification requirements as soon as possible.
The Updates to Long-Term Care (LTC) Emergency Regulatory Waivers issued in response to COVID-19 memo can be accessed here.
The COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers updated on April 9, 2021 can be accessed here.
Compliance Perspective
Issue
All facilities that participate and receive federal and/or state funds from Medicare or Medicaid must adhere to the rules of participation. It is essential that all facility policies and procedures that may have been suspended during the pandemic due to blanket waivers be made effective as soon as possible or no later than May 10, 2021.
Discussion Points
- Review policies and procedures related to resident room or roommate changes, transfer and discharge notification requirements, care planning requirements, timeframe requirements for completing and transmitting resident assessment information (MDS), and NATCAPs. Update these policies as needed.
- Train all staff on the termination of the effective emergency waivers and retrain appropriate staff on policies and procedures related to the emergency waivers. Document that the trainings occurred and file the signed document in each employee’s education file.
- Periodically audit to ensure that notification of room changes and roommate changes is being completed appropriately. Periodically audit to ensure that baseline care plans are completed within 48 hours of admission and that comprehensive care plans are completed within seven days for all new admissions. Also, periodically audit to ensure that MDSs are completed and transmitted in their allotted time frames.
