The 2019 Novel Coronavirus pandemic (“COVID-19”) introduced several unfamiliar hardships adversely impacting the long-term care industry, especially for nursing homes. Acknowledging these hardships, the Centers for Medicare & Medicaid Services (“CMS”) enacted several temporary emergency blanket waivers effective March 1, 2020, lending flexibility to nursing homes in their COVID-19 response efforts. Since that time, according to CMS, many nursing homes have adapted by developing new COVID-19 related policies and practices that CMS believes: (a) mitigate the need for certain blanket waivers, and (b) shed light on state-level nursing requirements that have room for improvement.

Accordingly, as of April 8, 2021, CMS announced that it is ending the following emergency blanket waivers:

  • Resident room or roommate change notification requirements, and transfer and discharge notification requirements. In March 2020, CMS waived a 30-day transfer or discharge notification requirement, which required notification to the resident or representative prior to making a room or a roommate change. This waiver allowed nursing facilities to notify residents of a room change or transfer after a transfer occurred, and therefore allowed facilities to accelerate changes in the interest of time and resident safety.
  • Care planning requirements for residents transferred or discharged for cohorting purposes. CMS also initially waived a rule requiring nursing homes to complete a baseline care plan within 48 hours, and a comprehensive care plan within 7 days, of resident admission. Specifically, CMS waived this care plan requirement when transferring or discharging nursing home residents to another long-term care facility, allowing nursing homes to quickly implement transmission-based precautions and cohort any residents who were, or may have been, exposed to COVID-19.
  • Timeframe requirements for completing and transmitting resident assessment information “minimum data set.” Finally, CMS waived the minimum data set (“MDS”) timeframe requirements for resident assessments. CMS previously intended for this waiver to allow nursing home facilities to prioritize infection control efforts in response to the COVID-19 pandemic.

After over a year since these blanket waivers went into effect, CMS now believes that a significant amount of nursing homes have developed policies and practices that allow those facilities to cohort nursing residents while also providing the required advanced notice, and to complete health care plans and assessments in an appropriate timeframe. CMS has therefore declared that these waivers should no longer remain in effect.

Nurse Aide Training and Certification Waiver

Further, in order to assist nursing homes with staff shortages during the COVID-19 pandemic, CMS also issued a waiver for certain nurse aide training and certification requirements set forth in 42 CFR § 483.35(d). The goal of this 4-month waiver was to allow nursing facilities to employ nurse aids for longer than four months even if the nurse aid had not completed his or her state-approved Nurse Aide Training and Competency Evaluation Programs (“NATCEP”). As long as the waiver was in place, and as long as the nurse aide could demonstrate competency in the skills and techniques required to care for the nursing facility patients, CMS allowed these individuals to continue working at the nursing facilities.

Although allowing more individuals to serve the immense needs of nursing home residents served as this waiver’s key silver lining, its implementation also revealed that much nurse aide training can be furnished in a nursing home practice setting, through observation and working as a nurse aide. CMS is therefore not yet ending this training waiver. Instead, the agency recommends that states evaluate their NATCEP and consider allowing certain nurse aide time spent working during the COVID-19 pandemic to count toward their training hour requirement.

Nurse aides who have worked longer than four months during the pandemic have raised concerns with CMS regarding whether they must immediately leave the nursing facility when the waiver ends. CMS recognizes these issues and advises stakeholders that the 4-month timeframe will be reinstated when the waiver ends. Thus, nurse aides will have the full 4-month period post-waiver termination to complete all required training and certification, regardless of how much the nurse aide worked while the waiver was in effect. Nevertheless, CMS encourages states and nurse aides to explore ways to complete all training and certification requirements as quickly as possible.