CMS released a revised memo on May 26 to announce that providers who continue to operate or have reactivated the emergency response plan due to COVID-19 may once again qualify for the actual emergency exemption from emergency preparedness emergency plan testing requirements.

Inpatient providers such as nursing homes are required to conduct 2 training exercises per cycle (12 months determined on the nursing home’s schedule). One exercise must be either a full-scale community-based exercise or an individual facility-based functional exercise. The second exercise in a cycle must be an exercise of choice, which could be a full scale or functional exercise, a table-top exercise, a workshop, or a mock disaster drill. If a provider activates the emergency plan for an actual emergency at any point during a cycle, the provider is exempt from completing the next scheduled full scale or functional exercise, though the exercise of choice is still required for each cycle.

In September 2020, CMS released memo QSO-20-41-ALL to state that the COVID-19 public health emergency constituted an actual emergency and providers who had enacted their emergency plans in response were eligible for the actual emergency exemption. In June 2021, CMS revised the memo to once again allow activation of the emergency plan related to COVID-19 to satisfy criteria for the emergency exemption.

With the latest revision on May 26, CMS reconfirmed use of the emergency exemption for those who continued to operate under the emergency plan or who have reactivated the emergency plan during a given training cycle for this and subsequent years. The emergency exemption can be used across multiple cycles, but only if the emergency plan was active during that cycle. CMS also notes that exemptions are only valid during the 12-month cycle for which the plan was active and cannot be accumulated across cycles.

For example, say a nursing home was operating under the emergency plan due to COVID-19 in February 2021 when a tornado necessitated emergency response and activation of additional aspects of the emergency plan. The nursing home’s next full-scale exercise was scheduled for November 2021. The nursing home would be exempt from the full-scale exercise in November 2021 because the emergency plan was activated in response to COVID-19 and in response to the tornado. However, the nursing home would not be exempt from the exercise of choice during that cycle. The nursing home would also not be exempt from the full-scale exercise scheduled for November 2022 unless the emergency plan was activated during the December 2021 – November 2022 12-month cycle.

CMS notes that while a provider may elect to utilize the actual emergency exemption in a given cycle, the provider should consider conducting an individual facility-based functional exercise if possible to ensure planning and preparation for any emergencies that are unique and probably to occur in that area.