[co-author: Michael Lisitano]

On May 11, 2020 the Centers for Medicare and Medicaid Services (CMS) announced additional blanket waivers for hospitals and other facilities in response to the COVID-19 pandemic. According to CMS, the new waivers “provide the flexibilities needed to take care of patients during the COVID-19 public health emergency.” The blanket waivers have a retroactive effective date of March 1, 2020 and do not require a waiver request or notice to CMS to apply.

As described by CMS, the new blanket waivers:

(1) Expand hospitals’ ability to offer long-term care services (swing beds)

CMS is waiving the requirements at 42 CFR § 482.58 subsections (a)(1)-(4) to allow hospitals to establish skilled nursing facility (SNF) swing beds payable under the SNF prospective payment system for patients that no longer require acute care but cannot find placement in another SNF.

To qualify, hospitals must:

• Not use SNF swing beds for acute level care;
• Comply with all other hospital conditions of participation and those SNF provisions set out at 42 CFR § 482.58(b) to the extent not waived; and
• Be consistent with the state’s emergency preparedness or pandemic plan.

To add swing beds, hospitals must contact the CMS Medicare Administrative Contractor enrollment hotline and attest that:

• They have made a good faith effort to exhaust all other options;
• There are no SNFs within the hospital’s catchment area that under normal circumstances would have accepted SNF transfers, but are currently not willing to accept or able to take patients because of the COVID-19 public health emergency;
• The hospital meets all waiver eligibility requirements; and
• They have a plan to discharge patients as soon as practicable, when a SNF bed becomes available, or when the public health emergency ends, whichever is earlier.

(2) Waive distance requirements, market share, and bed requirements for Sole Community Hospitals

For hospitals classified as Sole Community Hospitals prior to the public health emergency, CMS is waiving:

• The distance requirements at 42 CFR § 412.92(a), (a)(1), (a)(2), and (a)(3); and
• The market share and bed requirements – as applicable – at 42 CFR § 412.92(a)(1)(i) and (ii).

The eligibility requirements will revert to normal at the end of the public health emergency.

(3) Waive certain eligibility requirements for Medicare-Dependent, Small Rural Hospitals (MDHs)

For hospitals classified as MDHs prior to the public health emergency, CMS is waiving:

• The requirement that the hospital has 100 or fewer beds during the cost reporting period at 42 CFR § 412.108(a)(1)(ii); and
• The requirement that at least 60 percent of the hospital’s inpatient days or discharges be attributable to individuals entitled to Medicare Part A benefits during the specified hospital cost reporting periods. 42 CFR § 412.108(a)(1)(iv)(C).

The eligibility requirements will revert to normal at the end of the public health emergency.

(4) Update specific life safety code requirements for hospitals, hospice, and long-term care facilities

CMS is waiving and modifying particular waivers for hospitals, critical access hospitals (CAHs), inpatient hospice, intermediate care facilities for individuals with intellectual disabilities (ICFs/IID), SNFs, and nursing facilities (NFs). Under these waivers and modifications:

• CMS is waiving the prescriptive requirements for the placement of alcohol-based hand rub dispensers. However, CMS notes that due to the flammable nature of the products restrictions on the storage and location of the containers still apply, and containers over five gallons must be stored in a protected hazardous materials area.
• CMS is permitting a documented orientation training program related to current fire plans in lieu of quarterly fire drills to prevent the mass congregation of staff.
• CMS is waiving requirements that would otherwise not permit temporary walls and barriers between patients.

*Legal Intern at Robinson+Cole. Michael is not yet admitted to practice law.

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