On May 12, 2020 the Centers for Medicare & Medicaid Services (CMS) issued additional 1135 blanket waivers which are applicable to a wide variety of healthcare providers. These COVID-19 Emergency Declaration Blanket Waivers for Healthcare Providers are retroactively effective from March 1, 2020 through the end of the public health emergency (PHE). The waivers in this issuance do not require a request be sent or a notification be made to any of the CMS regional offices.  Each waiver must be consistent with the state’s emergency preparedness or pandemic plan.

The intent of these waivers is to expand the ability to meet the needs of the communities each of the health care providers serve and promote appropriate cohorting of COVID-19 patients. The additional or modified  CMS blanket waivers include the following:

Ability for Hospitals to Offer Swing Beds for Patients in need of Skilled Nursing Care Expands

CMS set in place the ability for hospitals to offer Long-Term Care Services (“Swing Beds”) for patients who no longer require acute level care but are still in need of skilled nursing care. Hospitals can establish skilled nursing facilities (SNF) swing beds payable under the SNF prospective payment system (PPS). This will allow hospitals to provide for patients no longer in need of acute care but unable to find placement in a SNF.  CMS has included several provisions to qualify for this waiver.

The hospitals must call the CMS Medicare Administrative Contractor (MAC) enrollment hotline to add swing bed services. The hospital must be prepared to attest to CMS a good faith effort has been made to exhaust all other options, including the following:

There are no SNFs within the hospital’s service 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 PHE;

  • The hospital meets all waiver eligibility requirements; and
  • The hospital has a plan to discharge patients as soon as possible, when a SNF bed becomes available, or when the PHE ends, whichever comes first.

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. The hospital shall not bill for SNF prospective payment system (PPS) payment using swing beds when patients require acute level care or continued acute care at any time while this waiver is in effect.

Hospitals classified as Sole Community Hospitals (SCHs)

Eligibility requirements are being waived for hospitals classified as SCHs prior to the PHE regarding geographical distance, “market share” and bed requirements. The goal is to provide SCH the opportunity to increase the capacity and promote appropriate cohorting of COVID-19 patients. The lifting of these parameters will allow hospitals classified as SCHs prior to the PHE to meet the needs of the communities they serve during this time.

SCHs will revert to the standard eligibility requirements at the conclusion of the PHE.

Hospitals Classified as Medicare-Dependent, Small Rural Hospitals (MDHs)

For hospitals which were classified as MDHs prior to the PHE, CMS has waived the following eligibility requirements:

  • The hospital has 100 or fewer beds during the cost reporting period, and
  • at least 60 percent of the hospital’s inpatient days or discharges were for individuals who qualified for Medicare Part A benefits during        the specified hospital cost reporting periods.

The goal of these waivers is to provide MDHs the opportunity to increase capacity and promote appropriate cohorting of COVID-19 patients.  Offering these waivers will allow MDHs to meet the needs of the communities they serve during this public health crisis.

Long-Term Care Facilities and Skilled Nursing Facilities (SNFs) and/or Nursing Facilities (NFs)

  • Paid Feeding Assistants.  During this PHE, CMS is decreasing the training time required for paid feeding assistants from a minimum training of 8 hours to 1 hour of training.

CMS is not waiving any other requirements related to paid feeding assistants or the required training content. Additionally, CMS is not waiving or modifying the requirement that a feeding assistant must work under the supervision of a registered nurse (RN) or licensed practical nurse (LPN).

Home Health Agencies (HHAs).

  • Occupational Therapists (OTs), Physical Therapists (PTs), and Speech Language Pathologists (SLPs) can Perform Initial and Comprehensive Assessment for all Patients. CMS has issued blanket waivers for any rehabilitation professionals, such as OT, PT, or SLP, 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 expects HHAs to match the appropriate discipline that performs the assessment to the needs of the patient to the greatest extent possible. Therapists must function within their scope of practice when performing initial and comprehensive assessments and access a RN or other professional to complete sections of the assessment that are beyond the therapist’s scope of practice.

 End-Stage Renal Dialysis (ESRD) Facilities

  • Expanded Availability of Renal Dialysis Services for ESRD Patients.  CMS is allowing dialysis facilities to provide services to its patients who reside in 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 the dialysis facility staff:  1) to furnish all dialysis care and services; 2) provide all equipment and supplies necessary; and 3) complete all equipment maintenance, cleaning and disinfection using appropriate infection control procedures and manufacturer’s instructions to use. CMS had previously stated equipment and supplies could be maintained in the nursing home; CMS is now requiring this to occur in off premises locations.

Specific Life Safety Code (LSC) for Multiple Providers – Waiver Information

  • Alcohol based Hand-Rub (ABHR) Dispensers: CMS is waiving the prescriptive requirements for the placement of ABHR dispensers for use by staff and others due to the need for the increased use of ABHR in infection control. Due to the hazardous nature of the components which make up ABHR, restrictions regarding storage size, location and access will remain in place.
  • Fire Drills:  Fire drills which include moving and massing of staff and patients is currently inadvisable. Therefore, CMS is permitting a documented orientation training program related to the current fire plan, which takes into consideration current facility conditions. The training must instruct all employees on their current duties, life safety procedures and the fire protection devices in their assigned areas.

COVID-19 Resources

At Husch Blackwell, our team of experienced health law attorneys continues to monitor the CMS waiver modifications. Please contact your Husch Blackwell attorney should you have any questions or if you would like guidance regarding the newly released CMS waivers.