CMS Issues QSO Lifting Vaccine Mandate and Other COVID-19 Requirements

On May 2, 2023, CMS issued QSO-23-13-ALL, outlining guidance for the conclusion of the COVID-19 Public Health Emergency (PHE). Included in the memo are several items that will bring relief to most providers.

The QSO is summarized in depth in this article, however, here are a few key points:

• The COVID-19 vaccine mandate will be terminated with an effective date and details to come at a later date (likely around May 11).
• Reporting new COVID-19 cases to residents, families, and representatives under F885 will no longer be enforced by CMS and surveyors.
• Reporting to NHSN through the COVID-19 module will continue until December 31, 2024, but CMS and the CDC can adjust the information collected.
• Reporting vaccination information to NHSN through the Weekly HCP COVID-19 Vaccination module will continue indefinitely unless additional regulatory action is taken.
• Testing will continue to be required under CDC guidance and will be cited under F880 (Infection Prevention and Control) upon the expiration of the PHE. 
• For non-nursing home providers there are instances where CMS has instructed surveyors to delay surveying for compliance for an established period of time upon conclusion of the PHE.

All Providers:

COVID-19 Staff Vaccine Mandate. In light of the end of the PHE and comments received on the interim final rule for the COVID-19 vaccine mandate (CMS-3415-IFC), CMS will soon end the requirement for covered providers and suppliers related to the staff vaccination mandate. Note, the QSO has not established a termination date for the requirement but stated that information will be forthcoming and they anticipate it will coincide with the end of the PHE. CMS continues to urge everyone to stay up to date with COVID-19 vaccines.

Emergency Preparedness Training and Testing Program Exemption. CMS notes this information supersedes QSO-20-41-ALL-Revised outlining waivers for emergency preparedness training and testing requirements. Providers were allowed to utilize a one-year exemption from the next required full-scale exercise, if the provider enacted their emergency plan based on a COVID-19 outbreak, which will terminate with the expiration of the PHE.

• Inpatient providers and suppliers are expected to conduct a full-scale exercise within its annual cycle for 2023 and an additional exercise of choice. Inpatient providers include inpatient hospice, psychiatric residential treatment facilities, hospitals, long-term care providers, ICF-IID, and critical access hospitals.
• Outpatient providers must conduct either a full-scale exercise or an exercise of choice within the annual cycle for 2023, if scheduled to conduct the full-scale exercise within 2023. The provider/supplier must conduct the exercise of choice, if scheduled during the annual cycle for 2023 and resume the full-scale exercise requirement in 2024. Outpatient providers and suppliers includes freestanding/home-based hospice, PACE, HHAs, CORF, Public Health Agencies as Providers of Outpatient Therapy Services, CMHCs, RHCs, and ESRD.

Nursing Homes:

Medicare 3-day and 60-day waivers. The 3-day prior hospitalization waiver that has been in effect during the PHE will be terminated. This includes the one-time waiver of the 60-day wellness period for Medicare beneficiaries.

• New skilled stays beginning on or after May 12, will require a qualifying hospital stay before Part A SNF benefits will be available.
• If a resident is currently under a SNF stay that began on or before May 11 will still be eligible for Medicare Part A benefits and will not need to be discharged to qualify for skilled benefits.
• Medicare beneficiaries will be required to complete a 60-day wellness period on or after May 12 to be eligible for a new 100-day Part A benefit period.
• If a resident previously did not have a 60-day wellness period and is under a Part A SNF stay on or before May 11, will still be eligible for Medicare A services and will not require to be discharged and complete a wellness period.

Alcohol Based Hand Rub (ABHR) Dispensers. CMS previously waived requirements regarding storage and placement of ABHR dispensers (according to 483.90(a) A nursing home may install ABHR dispensers if they are installed in a manner that adequately protects against inappropriate access) during the PHE due to the need to have a sudden increase supply of ABHR. This waiver will end with the conclusion of the PHE. 

Preadmission Screening and Annual Resident Review (PASARR). Note CMS waived the right to require a Level 1 PASRR prior to admission, however, Iowa did not enact this waiver. For Iowa providers the requirements will remain as they were pre- and during the COVID-19 pandemic. For providers outside of Iowa, the requirements to complete a Level 1 and Level II (if necessary) prior to admission will resume on May 12.

Resident Roommates and Grouping. CMS previously terminated this waiver on May 10, 2021. CMS directed surveyors to review residents who were moved to a different room or location in the nursing home and whether they were allowed to move back to their original room, depending on availability and that the decision should not be based on the resident’s payor status.  

Resident Transfer and Discharge. This waiver was previously terminated on May 10, 2021. However, the QSO directs surveyors to ensure that residents were provided a choice on staying at the location they were transferred to (as a strategy to mitigate COVID-19 transmission), or if they were allowed to return to the previous nursing home and that decisions should not be based on resident’s payor status.  

Nurse Aide Training Competency and Evaluation Program (NATCEP). CMS previously terminated this waiver, however, individual states and nursing homes may have applied for individual waivers. If a nursing home has a NATCEP waiver, it will terminate with the expiration of the PHE. Individuals working under this waiver must be certified no later than 4 months from the date the PHE ends (September 11, 2023), unless the individual waiver has a termination date prior to the PHE termination and then that date will be used.  

Reporting Requirements Related to COVID-19. CMS published an interim final rule (CMS-5531-IFC) requiring nursing homes to report to NHSN and inform residents, representatives, and families of new cases of COVID-19 (or F884 and F885)

• The NHSN reporting in the LTC COVID-19 Pathway (F884), was extended through a final rule (CMS-1747-F) until December 31, 2024. In the final rule, CMS notes that they have discretion on reducing reporting burdens, which NHSN has recently released updates that lessen the reporting burden.
• CMS notes that reporting requirements to residents, representatives, and families is no longer providing useful information including the effort required to continue this reporting outweighs the utility of the information provided. CMS is exercising enforcement discretion and will not expect providers to continue to report cases of COVID-19 to residents, representatives, and families by 5 p.m. the following day at this time. This effectively means that providers will no longer be cited for non-compliance at F885.
• CMS issued an IFC (CMS-3414-IFC) requiring nursing homes to report the vaccination status of residents and staff through the Weekly HCP COVID-19 Vaccination Module into NHSN.  In a subsequent rulemaking,  CMS-1747-F, this requirement was made permanent and will continue indefinitely unless additional regulatory action is taken.

Requirements for Educating, Offering Residents and Staff COVID-19 Vaccines. Nursing homes are required to educate, offer and assist with administration of COVID-19 vaccines under F887 based on CMS-3414-IFC. This interim final rule expires 3-years after issuance unless the Secretary determines an earlier end date. These requirements will remain in effect until May 21, 2024, unless additional regulatory action is taken.

Requirements for COVID-19 Testing. CMS issued interim final rule (CMS-3401-IFC) requiring LTC providers to perform routine testing of residents and staff for COVID-19 infection. This requirement has been revised throughout the pandemic based on current guidance. This interim final rule will terminate with the PHE expiration. CMS notes that COVID-19 testing is still an important action and is a nationally recognized standard to help identify and prevent the spread of COVID-19. Even though the interim final rule will terminate on May 11, 2023, CMS still expects nursing homes to test staff and residents in accordance with CDC recommendations. The QSO directs surveyors to issue a deficiency under F880 (General Infection Prevention and Control) instead of F886.

Focused Infection Control (FIC) Surveys. CMS previously directed survey agencies to complete FIC Surveys in 20% of their nursing homes during the fiscal year 2023, however, is not requiring SSA to conduct additional FIC surveys in fiscal year 2024. The FIC survey will remain available for states to use at their discretion.  

Home Health Agencies:

Initial Assessments. CMS allowed HHAs to perform Medicare-covered initial assessments and determine the patients’ homebound status remotely or by record review which will be terminated upon the conclusion of the PHE. In addition, CMS allowed OT, PT, and SLP’s to perform initial comprehensive assessments when therapy services are included in the patient’s plan of care. This was included in a permanent final rule as part of the CY 2022 Home Health PPS Final Rule.

Detailed Information Sharing for Discharge Planning. The waiver of the requirement to provide detailed information regarding discharge planning to patients, caregivers, or representatives in selecting a post-acute care provider by using and sharing data will be terminated upon conclusion of the PHE.

Waive Onsite Visits for HHA Aide Supervision. CMS waived the requirements for the nurse to complete an onsite supervisory visit every two weeks. This waiver will terminate at the end of the PHE, however, CMS revised requirements in the CY 2022 Home Health PPS Final Rule to include:

• A supervisory visit for patients receiving skilled care one time, virtually, per 60-day episode per patient and only in rare circumstances.
• Non-skilled patients will require the RN to complete an onsite, in person visit every 0 days to assess the quality of care and services provided by the home health aide and to ensure that services meet the patient’s needs. In addition, semi-annually the RN must make a supervisory direct observation for each patient to which the aide is providing services.

Clinical Records. CMS extended the deadline for completion of the requirement for HHAs to provide a patient a copy of their medical record at no cost during the next visit or within four business days (when requested by the patient), which will terminate at the conclusion of the PHE.

OASIS Reporting. CMS provided relief to HHAs on the timeframes related to OASIS transmission which will end with the conclusion of the PHE.

Hospice:

Comprehensive Assessments. CMS waived certain timeframes for updating the comprehensive assessment of patients, which will end with the conclusion of the PHE.

Hospice Aide Competency Testing Allow Use of Pseudo Patients. CMS waived the requirement for a hospice aide to be evaluated by observing the aide’s performance of certain tasks with a patient which allowed hospices to utilize pseudo-patients such as a person trained to role-play or a computer based mannequin device. The FY 2022 Hospice Wage Index and Payment Rate Update Final Rule finalized requirements to allow the use of the pseudo-patient for conducting hospice aide competency evaluations and hospice aide supervision requirements to address situations when deficient practice is noted and remediation is needed related to both deficient and related skills.

Waive Non-Core Services. CMS waived the requirement for hospices to provide certain non-core hospice services for PT, OT, and SLP, which will end upon the conclusion of the PHE.

Annual Training. Surveyor determination of compliance will begin on September 30, 2023. CMS waived the requirement for hospices to annually assess the skills and competence of all individuals furnishing care and provide in-service training and education programs where required. Selected hospice staff must complete training and have their competency evaluated by the end of the first full quarter after the declaration of the PHE concludes.

Volunteers. Surveyor determination of compliance will begin December 31, 2023. CMS waived the requirement that hospices must use volunteers (at least 5% of total patient care hours of all paid hospice employees).

HHA/Hospice:

QAPI. CMS waived requirements for hospices and HHAs to develop, implement, evaluate, and maintain an effective, ongoing, data-driven QAPI program, narrowing the scope of QAPI to infection control issues, which will end upon the conclusion of the PHE.

Training and Assessment of Aides. Surveyor determination of compliance will begin on July 11, 2023. CMS waived the requirements for hospices and HHAs that an RN or for a home health aide, other appropriate skilled profession complete an annual onside supervisory visit for each aide that provides services on behalf of the agency.

12-hour annual in-service training requirement for Home Health Aides and Hospice Aides. Surveyor determination of compliance will begin on December 31, 2023. CMS waived the requirement that home health agencies and hospices must assure that each aide receives 12-hours of in-service training in a 12-month period.

ICF/IID:

Modification of Adult Training Programs and Active Treatment. Surveyor determination of compliance will begin on July 11, 2023. CMS waived requirements for each client to receive a continuous active treatment program when states required stay at home, social distancing, and traveling for essential services only. In accordance with regulations, any modification to a client’s Individual Program Plan (IPP) in response to treatment changes requires the approval of the Interdisciplinary team.

Staffing Flexibilities. Surveyor determination of compliance will begin on December 31, 2023. CMS waived requirements for the ICF/IID to provide sufficient Direct Support Staff (DSS) so that Direct Care Staff (DCS) are not required to perform support services that interfere with direct client care. During the waiver, DCS may be needed to conduct some of the activities normally performed by the DSS which allowed providers to adjust staffing patterns, while maintaining the minimum staffing ratios required.