News & Events

CMS Issues New and Revised Blanket Waivers

On April 30, 2020, CMS issued several new and revised blanket waivers for health care providers retroactively effective March 1, 2020, through the end of the emergency declaration. CMS’s authority to grant blanket waivers stems from President Trump’s emergency declaration under the Stafford Act and Secretary Azar’s declaration of a public health emergency. The new and revised blanket waivers cover a broad range of requirements applicable to various types of providers and are addressed in more detail below:

  • Medicare Telehealth Services. All health care professionals that are eligible to bill Medicare for their professional services can furnish distant site telehealth services, including physical therapists, occupational therapists, speech language pathologists, and others. Moreover, providers can use audio-only equipment for telephone evaluation and management services and behavioral health counseling and educational services as set forth in the designated codes, which can be found here. Unless provided otherwise, other services on the Medicare telehealth services list must be furnished using both audio and video equipment.
  • Staffing Requirements for Rural Health Clinics (“RHCs”) and Federally Qualified Health Centers (“FQHCs”). This blanket waiver is not new, but it has been revised since its April 21, 2020, release. CMS has waived the requirement for a nurse practitioner, physician assistant, or certified nurse-midwife to be available to furnish patient care services at least 50% of the time the RHC operates. CMS has not, on the other hand, waived the requirement for a physician, nurse practitioner, physician assistant, certified nurse-midwife, clinical social worker, or clinical psychologist to be available to furnish patient care services at all times the clinic or center operates.
  • Long-Term Care Facilities (“LTCFs”) and Skilled Nursing Facilities (“SNFs”) and/or Nursing Facilities (“NFs”). CMS has modified quality assurance and performance improvement (“QAPI”) requirements for LTCFs as necessary to narrow the scope of the QAPI program to focus on adverse events and infection control. CMS has also postponed the deadline for SNF and NF nursing assistants to receive at least 12 hours of in-service training annually to the end of the first full quarter after the declaration of the public health emergency concludes. Further, CMS has waived the discharge planning requirement for LTCFs to assist residents and their representatives in selecting a post-acute care provider using data (e.g., standardized patient assessment data, quality measures, resource use). Last, LTCFs can provide a resident with a copy of their records within 10 working days of the request instead of 2 working days.
  • Home Health Agencies (“HHAs”). The requirement for HHAs to assure that each home health aide receives 12 hours of in-service training in a 12-month period is postponed to the end of the first full quarter after the declaration of the public health emergency concludes. CMS has also waived the requirement for HHAs to assist patients and their caregivers in selecting a post-acute care provider by using and sharing data (e.g., HHA, SNF, IRF, or LTCH data on quality measures and data on resource use measures). Additionally, the timeframe within which HHAs must make a patient’s clinical record available to the patient has been extended to the next home visit or within 10 business days of the patient’s request (instead of 4 business days), whichever occurs first.
  • HHAs and Hospice. CMS has waived the requirement for a registered nurse (or, for HHAs, a registered nurse or other appropriate skilled professional) to make an annual onsite supervisory list for each aide providing services on behalf of the HHA. All onsite assessments must now be completed within 60 days after the expiration of the public health emergency. CMS has also modified QAPI requirements by narrowing the scope of the QAPI program to concentrate on infection control issues, while retaining the requirement that remaining activities should focus on adverse events.
  • Hospice Annual Training. CMS has postponed the deadline for hospices to annually assess the skills and competence of individuals furnishing care and to provide in-service training and education programs to the end of the first full quarter after the declaration of the public health emergency concludes.
  • Physical Environment for Multiple Providers/Suppliers. CMS had modified certain physical environment requirements for hospitals, critical access hospitals, inpatient hospices, intermediate care facilities for individuals with intellectual disabilities, skilled nursing facilities, and nursing facilities. First, CMS has modified certain safety and quality requirements regarding the maintenance of facilities and equipment as necessary for facilities to adjust scheduled inspection, testing, and maintenance (“ITM”) frequencies and activities for facility and medical equipment. Second, CMS has modified provisions regarding the Life Safety Code (the “LSC”) and the Health Care Facilities Code (the “HCFC”) as necessary for facilities to adjust scheduled ITM frequencies and activities required by the LSC and the HCFC. Finally, CMS has waived outside window and door requirements so that providers can utilize space not normally used for patient care for temporary patient care or quarantine.
  • Ambulatory Surgical Centers (“ASCs”) Medical Staff. CMS has waived requirements for the periodic reappraisal of medical staff privileges and the periodic review of scope of procedures performed in the ASC.
  • Community Mental Health Centers (“CMHCs”). CMS is retaining the overall requirement that CMHCs maintain an effective, ongoing, CMHC-wide, data-driven QAPI program but has waived the requirement for the QAPI program’s organization and content if this is consistent with the emergency preparedness or pandemic plan of the state where the CMHC is located. Further, CMS has waived the prohibition restricting CMHCs from providing partial hospitalization services and other CMHC services in an individual’s home. CMHCs can furnish services in client homes via telecommunication technology. CMS has also waived the requirement for a CMHC to provide at least 40% of its items and services to individuals who are not Medicare-eligible.

The blanket waivers discussed above are in addition to numerous blanket waivers that have already been issued by CMS. The evolving list of CMS’s blanket waivers can be a useful tool and a source of relief for health care providers during the course of the public health emergency. Providers wishing to operate under a blanket waiver do not need to submit a request to CMS or a notification to a CMS regional office. Providers are encouraged to consider the short-term and long-term implications of utilizing CMS’s temporary blanket waivers, such as how to ensure compliance with the waivers not only during the public health emergency, but also once the blanket waivers are no longer in effect. As a reminder, the blanket waivers last from a retroactive date of March 1, 2020, until the end of the public health emergency.