CMS Terminating Certain Section 1135 Waivers

Some facility types will need to reinstate waived requirements as early as May 7 to maintain compliance.

The Centers for Medicare & Medicaid Services (CMS) announced in an April 7 memorandum that it will be phasing out some of the temporary emergency declaration section 1135 waivers of the Social Security Act that have been in effect throughout the COVID-19 public health emergency (PHE). COVID-19 vaccination has been successful and healthcare organizations are more adept at handling outbreaks, explains CMS. Learn which temporary flexibilities the government instituted within the Medicare program are coming to an end and whether your facility is affected.

Affected Facility Types

CMS is ending temporary emergency declaration section 1135 waivers for certain types of facilities in two waves. The first wave will occur 30 days following the April 7 memorandum and apply to skilled nursing facilities (SNFs) and nursing facilities (NFs). The second wave will occur 60 days after the April 7 memorandum and apply to:

• Inpatient hospices
• Intermediate care facilities
• End-stage renal dialysis (ESRD) facilities

First Group of Waivers Being Terminated

According to the April 7 memorandum, the following requirements will apply for certain facility types effective May 7 when the applicable section 1135 waivers end:

• Resident Groups
  • Per the requirements at 42 CFR section 483.10(f)(5), facilities may not restrict in-person meetings.
• Physician Delegation of Tasks in SNFs
  • Per the requirement at 42 CFR §483.30(e)(4), physicians may not delegate any tasks to a physician assistant, nurse practitioner, or clinical nurse specialist when the regulations specify that the physician must perform a task personally.
• Physician Visits
  • The regulation at 42 CFR §483.30(c)(3) requires physician visits (not already exempted in §483.30(c)(4) and (f)) to be made by the physician personally.
• Physician Visits in SNFs/NFs
  • The requirement at 42 CFR §483.30 stipulates that physicians and non-physician practitioners must perform in-person visits for nursing home residents.
• Quality Assurance and Performance Improvement (QAPI)
  • Per 42 CFR §483.75(b)–(d) and (e)(3), long-term care (LTC) facilities must develop, implement, evaluate, and maintain an effective, comprehensive, data-driven QAPI program.
• Detailed Information Sharing for Discharge Planning for LTC Facilities
  • Per 42 CFR §483.21(c)(1)(viii), LTC facilities must 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
  • Per 42 CFR §483.10(g)(2)(ii), LTC facilities must provide a resident a copy of their records within two working days (when requested by the resident). While the waiver was in effect, facilities had 10 days to oblige such requests.

Second Group of Waivers Being Terminated

Temporary emergency declaration section 1135 waivers for various provider types ending June 6 are:

• Physical Environment for SNF/NFs
  • When the waiver for requirements at 42 CFR §483.90 end, so will the flexibilities that allowed for a non-SNF building to be temporarily certified and available for use by a SNF for COVID-19 positive residents; opening a NF as a temporary COVID-19 isolation and treatment location; and LTC facilities to be used to accommodate for resident care in emergencies and situations needed to help with surge capacity.
• Equipment Maintenance & Fire Safety Inspections for ESRD facilities
  • Per 42 CFR §494.60(b) and(d), on-time preventive maintenance of dialysis machines and ancillary dialysis equipment will be required, and ESRD facilities will once again be required to conduct on-time fire inspections.
• Facility and Medical Equipment Inspection, Testing & Maintenance (ITM) for Inpatient Hospice, ICF/IIDs and SNFs/NFs
  • ITM requirements at 42 CFR §§418.110(c)(2)(iv), 483.470(j), and 483.90 for facility and medical equipment will be reinstated.
• Life Safety Code (LSC) and Health Care Facilities Code (HCFC) ITM for Inpatient Hospice, ICF/IIDs and SNFs/NFs
  • Per 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), ITM frequency and activity requirements for LSC and HCFC will be reinstated.
• Outside Windows and Doors for Inpatient Hospice, ICF/IIDs and SFNs/NFs
  • Per 42 CFR §§418.110(d)(6), 483.470(e)(1)(i), and 483.90(a)(7) an outside window or outside door is required in every sleeping room.
• Life Safety Code for Inpatient Hospice, ICF/IIDs, and SNFs/NFs
  • In accordance with 42 CFR §§418.110(d), 483.470(j), and 483.90(a), specific LSC provisions, such as fire drills and temporary construction requirements will be reinstated.
• Paid Feeding Assistants for LTC facilities
  • The requirements at 42 CFR §§483.60(h)(1)(i) and 483.160(a) regarding required training of paid feeding assistants will be reinstated.
• In-Service Training for LTC facilities
  • Per 42 CFR §483.95(g)(1), SNFs and NFs require nursing assistants to receive at least 12 hours of in-service training annually.
• Training and Certification of Nurse Aides for SNF/NFs
  • The Act at 42 CFR §483.35(d) requires that a SNF and NF may not employ anyone for longer than four months unless they met the training and certification requirements.

Providers are expected to take immediate steps necessary for returning to compliance with the reinstated requirements according to the timeframes, CMS advises in the memorandum.

What’s Not Changing?

Although the lack of certain minimum standards, such as training for nurse aides, may be contributing to a rise in weight loss, depression, and pressure ulcers among residents, according to CMS, flexibility for certain requirements, such as making temporary waivers available for nurse aides’ certification, will continue if there are documented capacity issues in training or testing programs.

Lastly, states and individual facilities are still able to request regulatory waivers for issues unique to their facility or location (similar to actions taken in response to natural disasters), CMS said.

Section 1135 waivers for hospitals and critical access hospitals remain in effect. See COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers for the full list of past and present waivers.

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Renee Dustman

Managing Editor at AAPC

Renee Dustman, BS, AAPC MACRA Proficient, is managing editor - content & editorial at AAPC. She holds a Bachelor of Science degree in Media Communications - Journalism. Renee has more than 30 years' experience in journalistic reporting, print production, graphic design, and content management. Follow her on Twitter @dustman_aapc.

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