December 6, 2022

Ask the legal expert about PHE waivers

Written By

Norris Cunningham
Member, Stoll Keenon Ogden PLLC

Q: I heard that CMS terminated Public Health Emergency blanket waivers, including one that temporarily allowed SNFs to employ nurse aides for longer than four months without meeting all training and certificate requirements. Doesn’t this just put facilities back to square one in their efforts to overcome serious staffing issues?

A: You are correct. As of Oct. 6, 2022, nurse aides hired on or before June 6, 2022, must have completed a Nurse Aid Training and Competency Evaluation as required by 42 CFR 483.95. Similarly, CMS terminated the waiver of in-service training requirements for nurse aides. This means that nursing aides hired on or before June 6, 2022, must now complete annual training by June 6, 2023.

The CMS Quality, Safety and Oversight Group alerted SNFs in April that many of the PHE blanket waivers would sunset in either 30 or 60 days of the memorandum. CMS was true to its word.

Interestingly, CMS chose not to terminate the waivers for hospitals and critical access hospitals. The choice to terminate the waivers for nursing homes is curious since the long-term care industry still struggles with critical staffing shortages that were only slightly alleviated by the waivers. Simply put, this decision by CMS threatens to negate any progress made on staffing during the waiver period.

Granted, the waivers were never meant to be permanent, but were intended to be helpful at a time when the industry was suffering from the worst the pandemic had to offer. What has been forgotten is that the myriad issues that caused industry-wide staffing problems before the pandemic have not been fixed.

Removing certain flexibilities that have helped to lessen the burden on an over-burdened industry seems misplaced. Back to square one, indeed!

***From the December 2022 Issue of McKnight’s Long-Term Care News

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