May 11, 2020

The Centers for Medicare & Medicaid Services (“CMS”) issued additional regulatory waivers and updated several existing waivers in an effort to further ensure a phased, safe and gradual reopening of the United States by providing flexibilities for states and localities to ramp up diagnostic testing and access to medical care.  Below is a summary of some of the additional and updated waivers:

• CMS is allowing Medicare enrolled hospitals to provide long-term care services (“swing beds”) for non-acute care patients who meet skilled nursing facility (“SNF”) level of care criteria.  To provide care for patients who do not require acute care and who have not been placed in an SNF, hospitals may establish SNF swing beds payable under SNF prospective payment system. To qualify, hospitals must: (a) not use SNF swing beds for acute care; (b) comply with every other hospital condition of participation and the SNF provisions at 42 C.F.R. § 482.58(b); and (c) remain compliant with the state’s emergency preparedness or pandemic plan.  In addition to meeting the aforementioned eligibility requirements, to add swing bed services, hospitals must call the applicable Medicare Administrative Contractor’s enrollment hotline  and attest to CMS that: (i) a good faith effort to exhaust other options has been made; (ii) there are no skilled nursing facilities within the hospital’s catchment area that would accept SNF transfers under normal conditions, but are unwilling or unable to take patients because of the COVID-19 public health emergency; and (iii) they have a plan to discharge patients when an SNF bed becomes available or the COVID-19 public health emergency ends, whichever is earlier.
• Occupational therapists, physical therapists, and speech language pathologists may preform initial and comprehensive assessments for all patients.  Occupational therapists, physical therapists, and speech language pathologists may perform the initial and comprehensive assessment for all patients receiving therapy services as part of a plan of care, regardless of whether or not the service establishes eligibility for the patient to be receiving home care.  However, these rehabilitation professionals would not be permitted to perform assessments for nursing-only care.  Further, therapists must act within their state scope of practice laws and access the appropriate health care professional to complete sections of the assessment that are beyond the therapist’s scope of practice.   
• Specific life safety code requirements for providers are being waived.  CMS is: (a) waiving prescriptive requirements for the placement of alcohol based hand rub dispensers; (b) permitting a documented orientation training program related to current fire plans in place of fire drills; and (c) allowing temporary walls and barriers between patients. These changes apply to hospitals, critical access hospitals, inpatient hospices, intermediate care facilities for individuals with intellectual disabilities, and SNF/nursing facilities.