Nursing Homes Brace for End of Pandemic Waivers as Covid Wanes

Nursing homes face an uncertain return to normal this month when the federal government reinstates most of the industry regulations that were either waived or relaxed during the Covid-19 pandemic.

The Centers for Medicare & Medicaid Services is alerting the nation’s 14,000-plus nursing homes that the scheduled end of the public health emergency May 11 will also terminate numerous emergency waivers, regulations and guidance that suspended requirements and helped facilities to expand capacity, reduce administrative burden, and devote more attention to keeping staff and residents safe.

The waivers included streamlining admissions for Medicare beneficiaries discharged from hospitals, delaying mental health assessments for new residents, and relaxing training requirements for nursing aides.

“The Public Health Emergency waivers have been a critical lifeline, as nursing homes have struggled to keep their doors open and fight against an unprecedented, once-in-a-century crisis. We appreciate the support we have received from the administration and the time they have granted providers to prepare for these changes,” said a statement from Mark Parkinson, president and CEO of the American Health Care Association and National Center for Assisted Living.

Nursing homes were one of the primary battlegrounds in the fight against Covid-19, which claimed the lives of more than 200,000 residents and staff at long-term care facilities, according to data from the federal government and KFF. As officials prepare to lift the PHE amid an industry-wide staffing shortage, the CMS is urging facilities to be mindful of lessons learned and vigilant about infection control and prevention going forward.

“In other words, while the public health emergency is ending, the need to continue to protect ourselves and our loved ones from Covid-19, is not. It’s just not an emergency. So we can’t forget what we’ve learned throughout the pandemic on what we can do to mitigate transmission,” said Evan Shulman, director of the division of nursing homes at CMS, during a recent web briefing with industry officials.

New CMS Guidance

Under new CMS guidance issued this week, staff at Medicare- and Medicaid-certified nursing homes, and other covered providers and suppliers, will no longer be required to get Covid-19 vaccinations once the PHE is lifted. The agency will share more information about the decision when the health emergency terminates. Providers hailed the news.

“A continuation of the vaccine mandate is no longer needed,” said a statement from Katie Smith Sloan, president and CEO of LeadingAge, which represents nonprofit nursing homes and other aging services providers. “Our country is in a very different place now, as the public health emergency winds down, than in summer of 2021, when the mandate was initially proposed.”

Mandatory Covid-19 tests for nursing home residents will also technically end with the PHE, but there’s an “expectation that tests will continue, most likely past May 11 of this year,” Shulman said. That continued resident testing should include those with Covid symptoms, and close contacts of people who’ve tested positive, Shulman added. An emergency requirement that facilities educate staff and residents on the Covid-19 vaccine, and offer help to get them vaccinated, will continue until May 21, 2024.

Some Pandemic Measures to Continue

Not all of the pandemic emergency regulations will disappear May 11. Nursing homes will continue their weekly Covid-19 infection reporting through the Centers for Disease Control and Prevention’s National Health Safety Network.

“But we will continue to work with the CDC on making sure that we only collect those data elements that we absolutely need to observe the current trajectory of Covid-19,” Shulman said.

During the emergency, the CMS gave states and facilities the authority to delay for 30 days the pre-admission assessment of new residents for serious mental illness or intellectual disability. The 30-day delay also applied to “level II” follow-up assessments for those who test positive for either condition. When the PHE lifts, both assessments will again be required prior to admission into a nursing home.

That’ll ensure that individuals receive care in the most appropriate setting, said a statement from Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care.

“Too many individuals with mental health needs have been placed in nursing homes when less restrictive settings would be more appropriate, and many who are residing in nursing homes have not been receiving the mental health services and supports they need,” Smetanka said. “This has created challenges for both the residents, and the staff, who also may not have the necessary training and resources to meet the residents’ needs.”

The CMS also waived a requirement that Medicare beneficiaries be hospitalized for three days before the program covered their nursing home stays. And in a related waiver, the CMS OK’d the renewal of Medicare nursing home coverage for some beneficiaries who had exhausted them, without requiring that they complete a 60-day wellness period. Both of these waivers will end May 11, much to the chagrin of the industry and patient advocacy groups.

But any Medicare Part A-covered nursing home stay that begins on or prior to May 11 without a qualifying hospital stay, can continue for as long as the beneficiary has Part A nursing home coverage days available, and as long as the beneficiary continues to meet the “coverage level-of-care criteria,” like requiring daily skilled care, said John Kane, a CMS technical adviser and nursing home payment team lead.

Seeking End of Three-Day Rule

The AHCA has called for the elimination of the three-day rule, or allowing observation stays in hospitals to count toward the three-day stay requirement. The group is evaluating whether the waiver on the three-day stay requirement helped seniors during the pandemic.

Smetanka said changes in medical care have made the three-day stay requirement outdated.

“Hospital stays for procedures are much shorter than in the past, or are even performed on an outpatient basis, yet patients may still need the skilled nursing or skilled rehabilitation services provided” by nursing homes, Smetanka said in a statement. “By maintaining this requirement, patients may find themselves lingering in a hospital bed beyond what is necessary, or they may be forced to pay the high costs of skilled care out of pocket, creating difficulties for many patients and families. It’s time to end this requirement.”

Industry officials also expressed concern about the elimination of waivers that allowed uncertified temporary nursing aides to remain on the job beyond four months without completing the required federal training. Roughly 18 states and many facilities received separate waivers from the CMS to continue using these temporary nursing aides. But once the PHE ends, the TNAs will have four months to get their credentials as certified nursing aides.

Backlogs in state training and testing requests could make that difficult. The bipartisan Building America’s Health Care Workforce Act, (H.R. 468), would give the aides 24 months to get their training certifications.

“Hundreds of thousands of temporary nurse aides stepped up to serve vulnerable seniors during this global crisis, supporting residents with non-clinical tasks and offering companionship,” said a statement from Holly Harmon, senior vice president of Quality, Regulatory & Clinical Services at AHCA/NCAL. “With many states unable to meet current training and testing demands, this legislation will help temporary aides transition to permanent caregivers while continuing to serve their residents, supporting seniors’ continuity of care.”