CMS COVID-19 Unwinding – Guidance
Updated Guidance – Expiration of the COVID-19 Public Health Emergency
Recently, CMS issued guidance to state survey agencies regarding the expiration of the COVID-19 Public Health Emergency (PHE). While some flexibilities provided throughout the pandemic have been made permanent or extended, many operational waivers ended on May 11, 2023. The AlaHA memo provided earlier this year is attached to this update.
To ensure compliance with Conditions of Participation moving forward, hospitals should carefully review the CMS guidance, taking necessary steps to educate hospital staff of the requirements that will be reinstated when the PHE ends.
Key Changes:
Staff Vaccination Requirements
In the memorandum, CMS announced that it intends to end the requirement that covered providers and suppliers establish policies and procedures for staff vaccination. Since Nov. 5, 2021, these policies and procedures were used to ensure that staff were fully vaccinated against COVID-19. Because this requirement is codified in a Condition of Participation, undoing it may require notice and comment rulemaking. As the PHE ends, the agency will release more details regarding the termination of this requirement.
Waivers Generally Applicable to All Hospitals that Expired on May 11
EMTALA: This waiver allowed for the screening of patients at a location offsite from the hospital’s campus to prevent the spread of COVID-19.
Verbal Orders: This waiver created additional flexibility related to the use of verbal orders where read-back verification is required, but authentication may occur later than 48 hours.
Discharge Planning: There were two waivers specific to discharge planning. The first waived the requirement to provide detailed information regarding discharge planning. The second waived all discharge planning requirements related to post-acute care services to expedite the safe discharge of patients.
Medical Staff: This waiver provided flexibility allowing physicians whose privileges were set to expire to continue practicing at the hospital and new physicians to begin practicing before a full medical staff and governing body review and approval occurred.
Physical Environment: Several waivers were authorized to the Medicare Conditions of Participation (CoPs) to provide additional flexibility to physical environment requirements. Those included:
- Allowing for increased flexibility to better manage surge capacity issues, including the use of facility and non-facility spaces not typically used for patient care to be used for patient care;
- Waiving the requirement to have an outside window or outside door in every sleeping room so that spaces not normally used for patient care could be used;
- Waiving requirements that would not permit temporary walls or barriers between patients; and
- Waiving fire drill requirements under the Life Safety Codes.
Telemedicine: There were two waivers specific to providing telemedicine in compliance with the CoPs. The first waiver removed the requirement that, for purposes of credentialing and privileging distant sites, a written agreement be in place between hospitals and CAHs using telemedicine and the distant-site hospitals or distant-site telemedicine entities furnishing the services. The second waiver removed requirements for Medicare patients to be under the care of a physician.
Quality Assessment and Performance Improvement Program: This waiver provided flexibility related to providing details of an organization’s program scope, the incorporation and setting of priorities of the program’s performance improvement activities and integrated QAPI programs.
Use of Temporary Expansion Sites: These waivers were part of the “Hospital Without Walls” program and provided significant flexibility for hospitals to utilize other hospitals and sites to increase capacity to meet urgent patient needs.
Swing Beds: This waiver allowed hospitals to establish skilled nursing facility (SNF) swing beds payable under the SNF prospective payment system to provide additional options for hospitals with patients who no longer require acute care but are unable to find placement in a SNF. Once the PHE ends, hospitals must have a plan to discharge swing-bed patients as soon as practicable.
CAH-specific Waivers that Expired on May 11
Personnel Qualifications and Staff Licensure: These waivers removed federal minimum personnel qualifications for clinical nurse specialists, nurse practitioners, and physician assistants and deferred to state law for staff licensure, certification, and registration.
Status and Location: This waiver removed the requirements for a CAH to be located in a rural area and requirements related to off-campus and co-location provisions, allowing for flexibility in establishing surge site and offsite locations.
Length of Stay: This waiver removed the requirement that CAHs have no more than 25 beds, and the length of stay is limited to 96 hours.
Responsibilities of Physicians in CAHs: This waiver removed the requirement that a doctor of medicine or osteopathy be physically present to provide medical direction, consultation, and supervision. Instead, the doctor needed only to be available through direct radio or telephone communication.
Long-term Care Facilities Provisions that Will Expire on May 11
3-Day Prior Hospitalization: This waiver allowed Medicare beneficiaries to qualify for Part A SNF stays without having a prior 3-day qualifying hospital stay, as well as allowing certain beneficiaries a benefit period renewal without first having the typical 60-day wellness period.
Preadmission Screening and Annual Resident Review: This waiver allowed nursing homes to admit new residents who have not received Level I or Level II Preadmission Screening.
Requirements for COVID-19 Testing: Long-term care facilities will no longer be required to perform routine testing of residents and staff for COVID-19 infection.
EMTALA
As CMS issued its updated guidance, HHS Secretary Xavier Becerra released a statement on EMTALA enforcement. In the statement, Secretary Becerra included a copy of a letter provided to hospital and provider associations. The text of the letter reads:
Dear Hospital and Provider Associations:
Today, the U.S. Department of Health and Human Services (HHS), through the Centers for Medicare & Medicaid Services (CMS), took action to protect individuals’ access to emergency healthcare—including any necessary stabilizing treatment, which may include abortion care, or appropriate transfer for an emergency medical condition.
As healthcare providers on the front lines, the care you provide is critical for patients experiencing emergency medical conditions. Recent news reports have highlighted the troubling experiences of many pregnant women presenting to hospital emergency departments with emergency medical conditions and not being offered necessary stabilizing treatment or being turned away, which may be due to uncertainty regarding whether facility administrators may allow providers to follow their reasonable medical judgment in caring for pregnancy-related emergencies as a result of the legal status of abortion care and related obstetric services in their states.
Today, CMS announced two investigations of hospitals that did not offer necessary stabilizing treatment to an individual experiencing an emergency medical condition. At nearly 18 weeks of pregnancy, the patient experienced a preterm premature rupture of membranes (PPROM), and as a result was advised that her pregnancy was no longer viable. Although her doctors advised her that her condition could rapidly deteriorate, they also advised that they could not provide her with the care that would prevent infection, hemorrhage, and potentially death because, they said, the hospital policies prohibited treatment that could be considered an abortion. This was a violation of the EMTALA protections that were designed to protect patients like her.
As the Secretary of HHS, I am committed to working with you to ensure that everyone who presents to a covered emergency department experiencing an emergency medical condition is offered the care they need. As you know, it is a healthcare provider’s professional and legal duty to offer necessary stabilizing medical treatment to a patient who presents to the emergency department and is found to have an emergency medical condition (or, if appropriate, to transfer them). While many state laws have recently changed, it’s important to know that the federal EMTALA requirements have not changed, and continue to require that healthcare professionals offer treatment, including abortion care, that the provider reasonably determines is necessary to stabilize the patient’s emergency medical condition.
I hope this information offers clarity on the protections afforded by EMTALA to patients. I deeply appreciate the care that frontline clinicians provide to patients every day across the country. We stand ready to continue to help make sure you have the clarity you need regarding the federal laws that affect your clinical decisions in emergency medical situations.