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CMS Announces Additional Blanket Waivers during COVID-19 Public Health Emergency

May 12, 2020

The Centers for Medicare and Medicaid Services (“CMS”) recently announced that it has issued additional blanket waivers as a result of the COVID-19 public health emergency.  These waivers have a retroactive effective date of March 1, 2020 and remain in effect for the duration of this public health emergency.

During a national emergency, CMS is empowered to waive various administrative requirements to increase access to medical services for Medicare, Medicaid, and CHIP beneficiaries.  When CMS determines that providers are similarly situated, it implements these waivers on a “blanket” basis, such that these waivers apply automatically to all applicable providers and suppliers without requiring them to apply for an individual 1135 waiver.  These waivers permit health care providers, who are providing services in good faith and absent fraud or abuse, to be reimbursed for such services and not be subjected to sanctions for noncompliance with certain requirements that would prohibit payment under normal circumstances.

CMS recently announced the following additional blanket waivers:

  1. Expanded Ability for Hospitals to Offer Long-term Care Services (“Swing Beds”)

    CMS is waiving the requirements under 42 CFR § 482.58 to allow hospitals to establish Skilled Nursing Facility (“SNF”) swing beds payable under the SNF prospective payment system (“PPS”) so that hospitals have greater options when they have patients who no longer require acute care but are unable to find placement in a SNF.  As long as they meet the criteria set forth below, all Medicare-enrolled hospitals are eligible for this waiver, other than psychiatric and long-term care hospitals.

Hospitals are required to do the following in order to qualify for this waiver:

  • Ensure that SNF swing beds are not used for acute level care;
  • Adhere to all other hospital conditions of participation and those SNF provisions set out at 42 CFR § 482.58(b) to the extent not waived; and
  • Act in accordance with the state’s emergency preparedness or pandemic plan.

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

  • The hospital has made a good faith effort to exhaust all other options;
  • “[T]here are no skilled nursing facilities 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 has complied with 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 is earlier.
  1. Waiver of Certain Eligibility Requirements for Sole Community Hospitals

    In order to provide for increased capacity and satisfy community need, CMS is waiving certain eligibility requirements under 42 CFR § 4192(a) for hospitals that were classified as Sole Community Hospitals (“SCHs”) before the public health emergency.  “Specifically, CMS is waiving the distance requirements at paragraphs (a), (a)(1), (a)(2), and (a)(3) of 42 CFR § 4192, and is also waiving the ‘market share’ and bed requirements (as applicable) at 42 CFR § 412.92(a)(1)(i) and (ii).”
  2. Waiver of Certain Eligibility Requirements for Medicare-Dependent, Small Rural Hospitals

    CMS is waiving the following requirements for hospitals that were classified as Medicare-Dependent, Small Rural Hospitals (“MDHs”) before the public health emergency: (a) “the eligibility requirement at 42 CFR § 412.108(a)(1)(ii) that the hospital has 100 or fewer beds during the cost reporting period”; and (b) “the eligibility requirement at 42 CFR § 412.108(a)(1)(iv)(C) that at least 60 percent of the hospital's inpatient days or discharges were attributable to individuals entitled to Medicare Part A benefits during the specified hospital cost reporting periods.”
  3. Updates to Specific Life Safety Code Requirements for Hospitals, Hospice, and Long-term Care Facilities

    “CMS is waiving and modifying particular waivers under 42 CFR §482.41(b) for hospitals; §485.623(c) for CAHs; §418.110(d) for inpatient hospice; §483.470(j) for ICF/IIDs and §483.90(a) for SNF/NFs.”  Specifically, the modifications are as follows:
  • Alcohol-based Hand-Rub Dispensers
    During the public health emergency, CMS is waiving its regulatory requirements relating to the location and placement of alcohol-based hand rub (“ABHR”) dispensers used by staff and others.  However, because ABHR contains flammable ethyl alcohol, bulk containers will still need to be stored in a protected hazardous materials area.  Furthermore, facilities should ensure appropriate use of ABHR dispensers as required by 42 CFR §482.41(b)(7) for hospitals; §485.623(c)(5) for CAHs; §418.110(d)(4) for inpatient hospice; §483.470(j)(5)(ii) for ICF/IIDs and §483.90(a)(4) for SNF/NFs.
  • Fire Drills
    As the COVID-19 public health emergency has made it inadvisable to have quarterly fire drills that mass staff together, CMS is permitting a documented orientation training program related to the current fire plan that instructs all staff (new, existing, or temporary) on their current duties, life safety procedures, and the fire protection devices in their assigned area.
  • Temporary Construction
    During the public health emergency, for infection control purposes, CMS is waiving Life Safety Code requirements that would prohibit such temporary walls and barriers between patients.
  1. Modification of Training Requirements for Paid Feeding Assistants

    CMS is modifying the requirements at 42 CFR §§ 483.60(h)(1)(i) and 483.160(a) regarding the required training timeframe of paid feeding assistants.  Specifically, the training can be a minimum of 1 hour in length, rather than 8 hours.

If you have any questions regarding these waivers, please do not hesitate to contact any member of the Health Law Practice Group at Shipman & Goodwin LLP.

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