CMS Updates Guidance on Medicare Flexibility Measures for Long-Term Care Facilities

May 7, 2020

This alert is part of a series discussing the comprehensive actions taken by the Centers for Medicare & Medicaid Services in response to the COVID-19 pandemic that are most important to healthcare providers. For related alerts, see “New Updates: CMS Provides Flexibility for Medicare Advantage, Part D Plans Amid COVID-19” (April 6; updated May 6), “CMS Continues to Increase Flexibility in Quality Reporting Requirements” (May 8) and “COVID-19 – New Regulatory Flexibilities for Durable Medical Equipment Suppliers” (May 13).

In response to the 2019 novel coronavirus (COVID-19) pandemic, the Centers for Medicare & Medicaid Services (CMS) announced on March 30, 2020, multiple temporary regulatory waivers and new rules to provide long-term care facilities with short-term relief from certain Medicare requirements. CMS’ goal is to allow providers to focus on providing care to patients affected by COVID-19. On April 30, 2020, CMS issued updated temporary regulatory waivers and another round of regulatory changes in a new interim final rule with comment period (IFC).

This article focuses on substantial updates to operational and administrative requirements for long-term care (LTC) facilities, including nursing homes and skilled nursing facilities (SNF). More general updates regarding provider enrollment, payment and Medicare program administration were discussed in a previous article.

Physical Environment and Temporary Expansion Sites

As part of this new IFC, CMS is temporarily waiving certain physical environment requirements to allow a non-SNF or nursing facility building to be used by an SNF for the isolation of COVID-19 patients, should the need arise. CMS is also temporarily allowing the use of rooms within an existing facility that are not normally used as resident rooms, including dining and conference rooms, to accommodate beds in emergencies. Facilities may use these rooms to accommodate patients as long as their use meets applicable conditions of participation. Facilities may also adjust scheduled inspection, testing and maintenance activities for their individual facilities and equipment to reduce disruption to patient care and potential COVID-19 exposure. To further reduce the potential for exposure, facilities may temporarily restrict residents’ right to participate in person in resident groups during the COVID-19 emergency.

In addition, LTCs may temporarily transfer their COVID-19 patients without a formal discharge. The transferring facility will still be considered the provider if it is providing services “under arrangements” and should bill Medicare normally for each care day. The transferring facility will then be responsible for reimbursing the facility that accepted transferred residents during this period. CMS is also waiving certain requirements, with some exceptions, to allow LTCs to transfer or discharge residents to another LTC facility under specific circumstances. LTCs may transfer residents:

  • with a confirmed COVID-19 diagnosis or symptoms of respiratory infection to a facility dedicated to the care of such residents;
  • without symptoms of respiratory infection to a facility that agrees to accept such resident for observation over a 14-day period for signs or symptoms of respiratory infection; and
  • without symptoms of respiratory infection or confirmed not to have COVID-19 to a facility dedicated to the care of such residents to prevent them from acquiring COVID-19 while continuing to provide their other care needs.

As part of this transfer program and in an effort to facilitate resident cohorting based on COVID-19 exposure, CMS is waiving the requirement that LTCs provide residents with their roommate of choice under certain circumstances.

Administrative and Other Operational Changes

In addition to updated requirements for a facility’s physical environment, CMS has introduced a range of waivers and regulatory changes for facility administration and the provision of care. As part of an effort to relieve demands on a facility’s providers, physicians are now allowed to delegate tasks previously reserved to physicians by regulation, as long as such delegation is in keeping with state law and the facility’s own policies. Required physician visits may now be delegated to certain appropriately licensed advanced-practice providers, and may be conducted via telehealth where appropriate. To address potential staffing shortages, CMS is also waiving or amending certain requirements for the training and certification of nurse aides, including postponing the due date for completing in-service training.

CMS is temporarily waiving the requirement of a three-day prior hospitalization for coverage of an SNF stay, as well as the 60-day period of non-inpatient status typically required for the renewal of SNF benefits. Of note, waiver of the 60-day “wellness period” requirement applies only for beneficiaries who were delayed in commencing or completing their wellness period by the COVID-19 emergency. CMS is also allowing states and nursing homes to suspend pre-admission screening and annual resident review for new residents for 30 days; after this 30-day period, new patients with a mental illness or intellectual disability should receive such assessment as soon as the resources to provide it become available. This new IFC also waives the requirement that LTCs assist residents and their representatives in selecting post-acute care providers, although all other discharge planning requirements remain in place. The time frame in which LTCs are required to provide residents with their medical records is extended from two to 10 days.

Finally, CMS is implementing updated reporting requirements, chief among which is the requirement that facilities report their COVID-19 cases on a weekly basis through the Centers for Disease Control and Prevention (CDC) National Health Safety Network. Facilities are also required to update residents and their representatives and families on the status of COVID-19 in the facility and notify them of new COVID-19 cases as they are identified. CMS is modifying certain Quality Assurance and Performance Improvement (QAPI) requirements, narrowing the program’s scope to focus on adverse events and infection control, and is delaying the due date for cost reports by up to three months depending on the facility’s fiscal year end date.

The changes in the IFC are applicable beginning March 1, 2020, or Jan. 27, 2020, except for specific rule changes. CMS will accept comments for 60 days after the IFC is published in the Federal Register. McGuireWoods will continue to monitor the progress of COVID-19-related regulatory changes, including those with respect to long-term care facilities, as CMS considers the received comments.

Please contact the authors for more information on the waivers and rule changes. McGuireWoods has published additional thought leadership on how companies across various industries can address crucial coronavirus-related business and legal issues. The firm’s COVID-19 Response Team stands ready to help clients navigate urgent and evolving legal and business issues arising from the COVID-19 pandemic.