Michelle McDonald, RN, MPH, CJCP, executive director, Government Regulations and Advisory Services and Kathryn Spates, JD, ACNP-BC, executive director, Federal Relations
Editor's note: This information was presented in a webinar format on May 11. Webinar replay is available here.
When a disaster or emergency is declared, Section 1135 of the Social Security Act may be activated to temporarily waive or modify certain Centers for Medicare and Medicaid Services (CMS) requirements.
These waivers ensure that sufficient health care services are available to meet the needs of Medicare, Medicaid and Children’s Health Insurance Program (CHIP) beneficiaries. Health care providers that provide such services in good faith may be reimbursed for them and not subjected to sanctions for noncompliance, absent of any fraud or abuse.
Defining 1135 Waivers
Waiver applications are intended for organizations or providers for whom federal regulations are imposing challenges impeding any organization‘s ability to respond to or recover from a disaster or emergency.
These are typically used on a localized basis in the event of an emergency. The COVID-19 pandemic is one of the rare instances in which CMS is using 1135 waivers on a nationwide basis.
Waivers end no later than the termination of the emergency period, or 60 days from the date the waiver or modification is first published, unless the Secretary of Health and Human Services (HHS) extends the waiver by notice for additional periods of up to 60 days, up to the end of the emergency period.
Remember to keep very detailed records during this time, in case your organization is asked to defend actions taken during the waiver period. You need to show you made a strong effort to protect patient safety during the emergency period.
What 1135 Waivers DO NOT Provide
1135 waivers are not a grant or financial assistance program. They do not:
- allow reimbursement for services otherwise not covered
- allow individuals to be eligible for Medicare who otherwise would not be eligible
- impact any response decisions, such as evacuations
- last forever
Current Blanket Waivers for Long-Term Care Facilities and Skilled Nursing Facilities (SNFs) and/or Nursing Facilities (NFs)
The following blanket waivers are in effect with a retroactive effective date of March 1, 2020 through the end of the emergency declaration:
3-Day Prior Hospitalization. CMS is waiving the requirement for a 3-day prior hospitalization for coverage of a SNF stay.
Reporting Minimum Data Set. CMS is waiving 42 CFR 483.20 to provide relief to SNFs on the timeframe requirements for Minimum Data Set assessments and transmission.
Staffing Data Submission. CMS is waiving 42 CFR 483.70(q) to provide relief to long-term care facilities on the requirements for submitting staffing data through the Payroll-Based Journal system.
Waive Pre-Admission Screening and Annual Resident Review (PASARR). CMS is waiving 42 CFR 483.20(k), allowing nursing homes to admit new residents who have not received Level 1 or Level 2 Preadmission Screening. Level 1 assessments may be performed post-admission.
Physical Environment Waivers
CMS is waiving requirements to allow for a non-SNF building to be temporarily certified and available for use by a SNF in the event there are needs for isolation processes for COVID-19 positive residents.
CMS is also waiving requirements to temporarily allow for rooms in a long-term care facility not normally used as a resident’s room to accommodate beds and residents for care in emergencies and situations needed to help with surge capacity.
Regulations requiring that facilities and equipment be maintained to ensure an acceptable level of safety and quality have been adjusted. CMS will permit facilities to adjust scheduled inspection, testing and maintenance (ITM) frequencies and activities for facility and medical equipment.
The following Life Safety Code and Health Care Facilities Code ITM are considered critical and are not included in this waiver:
- sprinkler system monthly electric motor-driven and weekly diesel engine-driven fire pump testing
- portable fire extinguisher monthly inspection
- elevators with firefighters’ emergency operations monthly testing
- emergency generator 30 continuous minute monthly testing and associated transfer switch monthly testing
- means of egress daily inspection in areas that have undergone construction, repair, alterations or additions to ensure its ability to be used instantly in case of emergency
Lastly, there is adjustment of §483.90(a)(7) for SNFs/NFs requiring these facilities to have an outside window or outside door in every sleeping room. CMS is permitting a waiver of these outside window and outside door requirements to allow for the utilization of facility and non-facility space that is not normally used for patient care for temporary patient care or quarantine.
Resident Group & Staffing Waivers
Resident groups waivers include the requirements at 42 CFR 483.10(f)(5), which ensure residents can participate in-person in resident groups.
Training and Certification of Nursing Aides. CMS is waiving the requirements at 42 CFR 483.35(d) (with the exception of 42 CFR 483.35(d)(1)(i)), which require that a SNF and NF may not employ anyone for longer than four months unless they met the training and certification requirements under § 483.35(d).
Physician Visits. CMS is waiving the requirement in 42 CFR 483.30 for physicians and non-physician practitioners to perform in- person visits and allow visits to be conducted, as appropriate, via telehealth options.
Transfer & Discharge Waivers
These requirements are only waived in cases where the transferring facility receives confirmation that the receiving facility agrees to accept the resident to be transferred or discharged.
In § 483.10, CMS is only waiving the requirement, under § 483.10(c)(5), that a facility provide advance notification of options relating to the transfer or discharge to another facility. Otherwise, all requirements related to § 483.10 are not waived.
Similarly, in § 483.15, CMS is only waiving the requirement, under § 483.15(c)(3), (c)(4)(ii), (c)(5)(i) and (iv), and (d), for the written notice of a transfer or discharge to be provided before the transfer or discharge. This notice must be provided as soon as practicable.
In § 483.21, CMS is only waiving the timeframes for certain care planning requirements for residents who are transferred or discharged for the purposes previously explained.
These requirements are also waived when transferring residents to another facility, such as a COVID-19 isolation and treatment location, with the provision of services “under arrangements,” as long as it is not inconsistent with a state’s emergency preparedness or pandemic plan, or as directed by the local or state health department.
Task Delegation. CMS is waiving the requirement at § 483.30(c)(3) that all physician visits (not already exempted in § 483.30(c)(4) and (f)) be made by the physician personally.
CMS is modifying this provision to permit physicians to delegate any required physician visit to a nurse practitioner (NPs), physician assistant, or clinical nurse specialist who is 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.
CMS is not waiving the requirements for the frequency of required physician visits at § 483.30(c)(1) or for physician supervision in § 483.30(a)(1). The requirement at § 483.30(d)(3) for the facility to provide or arrange for the provision of physician services 24 hours a day, in case of an emergency still stands. It is important that the physician be available for consultation regarding a resident’s care.
Quality Assurance & In-Service Training
CMS is modifying §483.75(b)–(d) and (e)(3) to the extent necessary to narrow the scope of the Quality Assurance and Performance Improvement (QAPI) program to focus on adverse events and infection control.
CMS is also postponing the deadline for the nursing assistant to receive at least 12 hours of in-service training annually requirement until the end of the first full quarter after the declaration of the public health emergency (PHE) concludes.
Discharge Planning & Clinical Records
The discharge planning requirement in §483.21(c)(1)(viii), which requires LTC facilities to assist residents and their representatives in selecting a post-acute care provider using data, such as standardized patient assessment data, quality measures and resource use, is now waived.
CMS is modifying the requirement at 42 CFR §483.10(g)(2)(ii) to allow LTC facilities 10 working days to provide a resident’s record rather than two working days.
Again, it’s very important to carefully track use of these waivers. CMS remains committed to ensuring oversight continuity during a PHE. Please follow the blanket waivers section of the CMS website and reach out to us through your account executive if we can provide clarification.
Thank you for all you are doing during this unprecedented time!
Kathryn Spates, JD, MSN, is the executive director, Federal Relations at The Joint Commission’s Washington, D.C., office. In this role, she analyzes the effects of legislation, regulations, and guidance on The Joint Commission and health care entities and is responsible for building relationships with government agencies and Congress to further The Joint Commission’s strategic opportunities. Ms. Spates previously worked at the Food and Drug Administration (FDA) and as an attorney at a law firm in Washington, D.C. Before she began her government relations and legal career, she spent over 15 years in health care. Ms. Spates is also an acute care nurse practitioner and has worked in academic medical centers, clinical research, the U.S. Peace Corps Headquarters, and as a Lieutenant in the United States Navy Nurse Corps.
Michelle McDonald, RN, MPH, CJCP, is executive director, government regulations and advisory services at The Joint Commission.