On May 1, 2023, the Centers for Medicare & Medicaid Services (CMS) issued guidance for the expiration of the COVID-19 public health emergency (PHE). The Department of Health and Human Services (HHS) announced on February 9 that the PHE for COVID-19 will end on May 11, 2023. During the PHE, CMS used a combination of emergency authority waivers, regulations, enforcement discretion, and sub-regulatory guidance to ensure easier access to care for healthcare providers and their beneficiaries. Since the PHE will end on May 11, the authority to issue and maintain 1135 waivers ends on that date.
The newly issued memorandum outlines the expiration of the emergency waivers issued during the PHE related to the minimum health and safety requirements for Long Term Care (LTC) and Acute and Continuing Care (ACC) providers and also describes the timelines for certain regulatory requirements issued during the PHE through Interim Final Rules with Comments (IFCs).
In the memo, CMS said that they will soon end the requirement that covered providers and suppliers establish policies and procedures for staff vaccination and that they would soon provide more details regarding ending this requirement. They said that the strongest protection from COVID-19 is the vaccine, and they urge everyone to stay up to date with their vaccination. Providers/suppliers are expected to return to normal operating status and comply with the regulatory requirements for emergency preparedness with the conclusion of the PHE.
Also provided in the new memo is information on the remaining regulatory waivers and Interim Final Rules with Comments (IFCs) requirements for LTC facilities including:
- 3-Day Prior Hospitalization
- Alcohol-based Hand-Rub (ABHR) Dispensers
- Preadmission Screening and Annual Resident Review: (PASARR)
- Resident Roommates and Grouping
- Resident Transfer and Discharge
- Nurse Aide Training Competency and Evaluation Programs
- Requirements for Reporting related to COVID-19
- Requirements for Educating about and Offering Residents and Staff the COVID-19 Vaccine
- Requirements for COVID-19 Testing
- Focused Infection Control (FIC) Surveys
Compliance Perspective
Issue
In certain circumstances, the Secretary of HHS, using section 1135 of the Social Security Act (SSA), can temporarily modify or waive certain Medicare, Medicaid, CHIP, or HIPAA requirements, called 1135 waivers. There are different kinds of 1135 waivers, including Medicare blanket waivers. When there’s an emergency, sections 1135 or 1812(f) of the SSA allow CMS to issue blanket waivers to help beneficiaries access care. When a blanket waiver is issued, providers don’t have to apply for an individual 1135 waiver. 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 are updated to conform to the new guidance as soon as possible or no later than May 11, 2023.
Discussion Points
- Review your emergency preparedness plan, infection prevention and control plan, and vaccination policies and procedures to ensure they include the most up-to-date information from CMS.
- Train staff on the most current infection prevention and control protocols, including vaccination policies and best practices. Train all appropriate staff on the termination of the emergency waivers and provide retraining on all updated policies and procedures. Document that the trainings occurred and file the signed document in each employee’s education file.
- Audit to ensure that all policies that were affected by the emergency blanket waivers have been reestablished and are being adhered to by all staff members.
*This news alert has been prepared by Med-Net Concepts, LLC for informational purposes only and is not intended to provide legal advice.*
