CMS Ends Four Blanket Waivers and Clarifies Nursing Assistant Issue

Posted on April 14, 2021 by Jonathan Lips

The Centers for Medicare and Medicaid Services (CMS) released a policy memo on April 8, announcing the termination of several 1135 waivers related to resident transfers, care plans, and assessments. CMS believes that facilities should have developed processes to comply with the standard regulatory requirements relating to these practices at this stage in the pandemic. These specific waivers, implemented because of the COVID-19 public health emergency, will end on May 10.

Additionally, CMS has offered details on how states may assist individuals currently employed under the nurse aide training waiver to transition to certified nurse aides. Details of the CMS announcement are discussed below.

Notice of Transfer and Discharge: CMS is terminating the waiver at §483.15(c)(4)(ii) regarding notice of transfer of discharge. With the termination of this waiver, nursing homes must resume compliance with the requirement to notify a resident and resident representative at least 30 days or as soon as practicable before transfer or discharge.

Resident Roommates and Grouping: CMS is terminating the waiver at §483.10(e)(6) regarding notice of roommate change. With the termination of this waiver, nursing homes must resume compliance with the requirement to notify residents before changing rooms or roommates.

Timely Completion of Care Plans: CMS is terminating waivers at §483.21(a)(1)(i), (a)(2)(i), and (b)(1)(i) regarding timely completion of baseline and comprehensive care plans following admission. With the termination of this waiver, nursing homes must resume compliance with the requirement to complete baseline care plans within 48 hours of admission and comprehensive care plans within seven days of admission.

Reporting Minimum Data Set (MDS): CMS is terminating the waiver at §483.20 related to the resident assessment submission, the Minimum Data Set (MDS). With the termination of this waiver, nursing homes must resume compliance with timely completion and submission of all required MDS assessments and should work to schedule and conduct assessments accordingly. The Minnesota Department of Health (MDH) has noted that penalties for late assessment completion and late submission will resume on Tuesday, May 11.

Training and Certification of Nurse Aides: CMS will not be terminating at this time the waivers at §483.35(d) related to training and certification of nurse aides. However, CMS has offered in its memo information on working with these staff in preparation for the eventual end of this waiver.

CMS clarifies that while the current waiver at §483.35(d) allows a nursing home to employ as a nurse aide for longer than four months an individual who has not completed a state-approved NATCEP, nursing homes should be working with these individuals now to create a plan for completing required training. Individuals currently working under this waiver will have four months from this waiver's expiration to meet all required training and certification requirements.

CMS also recommends that states evaluate current requirements of state-approved Nurse Aide Training and Competency Evaluation Programs (NATCEP) to determine if hours worked in the nursing home can be used to satisfy any of the state-approved NATCEP training requirements, including the federal 75-hour training requirement. CMS reminds states that required training areas must be addressed, and any areas that are not fulfilled through hours spent on-site at the nursing home must be fulfilled through supplemental training. CMS additionally reminds states that all nurse aides must pass the state's competency exam.

LeadingAge Minnesota is working with the Minnesota Department of Health to discuss options in this area to support staff who have joined the workforce during the pandemic. We will be gathering additional data from members to support this work.

The waivers listed above are the only waivers being terminated. All other federal blanket waivers, including the 3-day stay (Qualifying Hospital Stay) waiver, remain in effect at this time. CMS has the authority to continue blanket waivers so long as there is a declared expiration of the national public health emergency (PHE). The PHE is currently set to expire on April 21; however, the Biden Administration has expressed intent to extend the PHE. Each extension covers 90 days, and we anticipate that the PHE will be extended on or before its April expiration.