Will the New Normal Be the Old Normal for Nursing Homes? CMS Ends PBJ Blanket Waiver

Arnall Golden Gregory LLP

As government agencies inch toward resumption of normal activities despite the continuation of the COVID-19 pandemic, the Centers for Medicare and Medicaid Services (“CMS”) is following suit and announced that the agency has ended the blanket emergency waiver of 42 CFR Section 483.70(q),  effective June 25, 2020.  Section 483.70(q) requires nursing homes to submit staffing data through the Payroll-Based Journal (“PBJ”) system.

In a Memorandum from the Quality Safety and Oversight Group, CMS states that despite the waiver, sixty percent (60%) of facilities continued to submit data through the PBJ system; however, because not all facilities did so, CMS will be unable to update the staffing measures and staffing ratings under the Five-Star Quality Rating System.  As a result, the measures and ratings will be held constant at the next regularly scheduled update on July 29, 2020.  CMS also states, however, that it will temporarily remove the one-star staffing rating downgrade for facilities that failed to submit timely PBJ staffing data for the quarter prior to the effective date of the blanket waiver or reported four (4) or more days in that quarter with no registered nurse on site, as the blanket waiver affected the ability of these facilities to improve their rating.

As a result of CMS’s termination of the blanket waiver, facilities will now be required to submit staffing data through the PBJ system for the second calendar quarter of 2020 (April through June) by August 14, 2020.

CMS also addresses the effect of its blanket waiver of the timelines for Minimum Data Set (“MDS”) resident assessment information, which is used in the calculation of quality measures that are reflected in the Five-Star ratings on the Nursing Home Compare website.  CMS, however, did not announce the termination of that waiver.  CMS notes that MDS information from resident assessments conducted after January 1, 2020 may be affected both by the COVID-19 public health emergency and the blanket waiver.  As a result, any MDS data submitted that reflects the period prior to January 1, 2020 will be reflected in updated quality measures.

While nursing home providers will continue to spend a significant amount of time on their operational response to COVID-19, the cessation of the PBJ blanket waiver is a clear indication from CMS that it expects to return to its pre-COVID-19 regulation and enforcement posture sooner rather than later.  Accordingly, now is the time for nursing home providers to consider their plans for transitioning back to normal operations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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