For health care providers, particularly long term care providers, COVID-19 has brought unprecedented challenges. In response to those challenges, both the federal and state governments have responded over the course of the pandemic with a dizzying array of waivers, modifications and flexibilities in laws and regulations. These waivers have helped providers deliver care during the pandemic and relieved burdensome requirements in many ways. However, as COVID-19 cases begin to wane and the public health emergency (PHE) begins to subside, a new question arises. What happens when the waivers that providers have become accustomed to come to an end?
From the outset of the PHE, it was clear to governmental officials that various laws and regulations needed to be modified, suspended or, in some cases, even changed. Many of those changes involved increased funding and reimbursements to facilities through the CARES Act. But additionally, Medicare and Medicaid (through the Department of Health and Human Services (“HHS”) suspended certain laws and regulations. For skilled nursing facilities, the most important pandemic flexibilities have been:
- Waiving the requirement for a 3-day prior hospitalization for coverage of a SNF stay, which provides temporary emergency coverage of SNF services without a qualifying hospital stay, for those people who experience dislocations, or are otherwise affected by COVID-19.
- Allowing certain beneficiaries an additional Medicare SNF stay if their prior stay was affected by COVID.
- Waiving requirements that a facility may not employ anyone for longer than four months unless they met certain training and certification requirements under §483.35(d).
- Physician flexibilities that allow doctors to practice via telemedicine, delegate to mid-level practitioners, and waive certain documentation requirements.
HHS possesses the authority to grant these so-called “blanket waivers” under Section 1135 of the Social Security Act. That authority, however, requires that HHS declare a public health emergency, and HHS must act to continue that declaration every 90 days. HHS first declared a PHE in January 2020 and has renewed that declaration every 90 days since.
While certain waivers have already been discontinued, the current federal COVID-19 PHE waivers are set to expire on July 20, 2021. In a recent letter, HHS stated that it will likely continue to renew the PHE declaration and waivers every 90 days through the end of 2021. HHS also stated it will give providers 60 days’ notice prior to ending the PHE but may selectively cancel certain waivers. Congress is looking at measures to make permanent certain of these waivers (such as the 3-day stay rule), but no outcome is certain.
State governments have also enacted waivers of state laws and regulations during the pandemic. Every state has a different legal process for doing this, and waivers also differ among the various states. However, common state waivers have included:
- Waivers of state laws to have health care professionals licensed out of state, or who are retired, work during the emergency.
- Flexibilities to allow telehealth to be used very broadly.
- Allowing mid-level practitioners to practice at the very top of their scope (i.e., NPs, PAs).
- Changes in facility visitation as well as staff and resident COVID testing requirements.
- Suspension of certain survey and oversight activities.
In some cases, each state’s waivers also need to be renewed and updated. Many states are in the process of discontinuing the waivers as their governors or legislatures move to lift other business restrictions.
Wind Down Makes Compliance Tricky
Long term care providers should carefully monitor the expiration of these state and federal waiver flexibilities as the PHE begins to subside and ultimately end. Failing to do so can result in a facility failing to comply with regulations. For example, using an out-of-state licensed nurse after such a waiver ends equates to allowing the facility using an individual who is unlicensed, which would be a regulatory violation. Federal waivers that affect Medicare admissions criteria could lead to disallowed claims if not properly followed. Members of Bradley’s Health Care Practice continue to track the federal waivers as well as waivers in many states.