February 2, 2023

Volume XIII, Number 33


February 02, 2023

Subscribe to Latest Legal News and Analysis

February 01, 2023

Subscribe to Latest Legal News and Analysis

January 31, 2023

Subscribe to Latest Legal News and Analysis

January 30, 2023

Subscribe to Latest Legal News and Analysis

NOTICE TO PROVIDERS: CMS Phasing Out Certain COVID-19 Regulatory Waivers in Long-Term Care Facilities, Hospices, and ESRD Facilities

Certain COVID-19 emergency declaration blanket waivers are being phased out by the federal government, and health care providers should take steps to determine whether current arrangements are compliant. As background, in response to the COVID-19 public health emergency CMS previously enacted extensive temporary COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers. However, the Centers for Medicare and Medicaid Services (CMS) have now determined that various regulatory requirements must be restored in order to protect the health and safety of residents in long-term care facilities.

On April 7, 2022, CMS released a Memorandum announcing the termination of certain COVID-19 emergency declaration blanket waivers for specific providers, commencing 30 or 60 days from that date. This termination of specific emergency declaration blanket waivers applies to: skilled nursing facilities/nursing facilities (SNF/NFs), inpatient hospices, intermediate care facilities for individuals with intellectual disabilities (ICF/IIDs), and end-stage renal disease (ESRD) facilities. The termination of these blanket waivers does not impact other blanket waivers that remain in place, such as those for hospitals.

The following emergency declaration blanket waivers ended for SNF/NFs on May 7, 2022:

  • Resident Groups – 42 CFR § 483.10(f)(5)

    • Ensures residents can participate in-person in resident groups.

  • Physician Delegation of Tasks in SNFs – 42 CFR § 483.30(e)(4)

    • Prevents a physician from delegating a task when the regulations specify that the physician must perform it personally.

  • Physician Visits – 42 CFR § 483.30(c)(3)

    • Mandates that all required physician visits (not already exempted in § 483.30(c)(4) and (f)) must be made by the physician personally.

  • Physician Visits in SNFs/NFs – 42 CFR § 483.30

    • Imposes the requirement that physicians and non-physician practitioners must perform in-person visits for nursing home residents.

  • Quality Assurance and Performance Improvement (QAPI) – 42 CFR § 483.75(b)–(d) and (e)(3)

    • Mandates that long-term care facilities develop, implement, evaluate, and maintain an effective, comprehensive, data-driven QAPI program.

  • Detailed Information Sharing for Discharge Planning for Long-Term Care (LTC) Facilities – 42 CFR § 483.21(c)(1)(viii)

    • 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.

  • Clinical Records – 42 CFR § 483.10(g)(2)(ii)

    • Requires long-term care facilities to provide a resident a copy of their records within two working days (when requested by the resident).

The following emergency declaration blanket waivers for various provider types end on June 6, 2022:

  • Physical Environment for SNF/NFs – 42 CFR § 483.90

    • Imposes various facility requirements relating to maintenance to protect the health and safety of residents.

  • Equipment Maintenance & Fire Safety Inspections for ESRD facilities – 42 CFR § 494.60(b) and(d)

    • Requires on-time preventive maintenance of dialysis machines and ancillary dialysis equipment as well as on-time fire inspections.

  • Facility and Medical Equipment Inspection, Testing & Maintenance (ITM) for Inpatient Hospice, ICF/IIDs and SNFs/NFs – 42 CFR §§ 418.110(c)(2)(iv), 483.470(j), and 483.90

    • Pertains to facility- and medical-related inspection testing and maintenance requirements.

  • Life Safety Code (LSC) and Health Care Facilities Code (HCFC) ITM for Inpatient Hospice, ICF/IIDs and SNFs/NFs – 42 CFR §§ 418.110(d)(1)(i) and (e), 483.470(j)(1)(i) and (5)(v), and 483.90(a)(1)(i) and (b)

    • Mandates certain inspection testing and maintenance activities at certain frequencies.

  • Outside Windows and Doors for Inpatient Hospice, ICF/IIDs and SFNs/NFs – 42 CFR §§ 418.110(d)(6), 483.470(e)(1)(i), and 483.90(a)(7)

    • Requires every sleeping room to have an outside window or outside door.

  • Life Safety Code for Inpatient Hospice, ICF/IIDs, and SNFs/NFs – 42 CFR §§ 418.110(d), 483.470(j), and 483.90(a)

    • Imposes facility requirements, including quarterly fire drills, and prohibits temporary walls and barriers between patients.

  • Paid Feeding Assistants for LTC facilities: 42 CFR §§ 483.60(h)(1)(i) and 483.160(a)

    • Includes requirements related to training of paid feeding assistants.

  • In-Service Training for LTC facilities – 42 CFR § 483.95(g)(1)

    • Mandates that nursing assistants at SNFs and NFs must receive at least 12 hours of in-service training annually.

  • Training and Certification of Nurse Aides for SNF/NFs – 42 CFR § 483.35(d) (Modification and Conditional Termination)

    • Requires that a SNF and NF may not employ anyone for longer than four months unless they meet the training and certification requirements under § 483.35(d).

CMS urges providers to take immediate steps in order to return to compliance with the above reinstated requirements in the required timeframe.  CMS also notes that states and individual facilities have the ability to request regulatory waivers for issues unique to their facility or location to provide necessary flexibility.

*This post was co-authored by Erin Howard, legal intern at Robinson+Cole. Erin is not admitted to practice law.

Copyright © 2023 Robinson & Cole LLP. All rights reserved.National Law Review, Volume XII, Number 129

About this Author

Conor Duffy Cybersecurity Attorney

Conor Duffy is a member of the firm's Health Law Group and its Data Privacy + Cybersecurity Team. He advises hospitals, physician groups, community providers, and other health care entities on general corporate matters and health law issues. He also counsels clients on what measures are needed to safeguard data and patient information.


Conor provides legal counsel to health care clients on various regulatory matters, such as Medicare and Medicaid program compliance, federal fraud and abuse laws, and the Emergency Medical Treatment & Labor Act...