Monday, June 6 marks the termination of the second round of early termination 1135 waivers announced by the Centers for Medicare & Medicaid Services (CMS) in April. A first round expired in May and while the May and June terminations eliminate many of the waivers initially extended by Health & Human Services (HHS) at the start of the pandemic in 2020, some waivers remain in effect at this time. The Qualifying Hospital Stay, or 3-day stay waiver, has not been announced for early termination, and remains in effect at this time. For a more comprehensive look at 1135 waivers applying to nursing homes, check out the LeadingAge Blanket Waiver Chart resource. Below, we outline a few considerations for waivers ending on June 6.

Training and Certification of Nurse Aides

Waiving requirements at 42 CFR 483.35(d) (with the exception of §483.35(d)(1)(i)), CMS has permitted nursing homes to employ for longer than 4 months individuals working as nurse aides who have not met training and certification requirements at § 483.35(d). With the termination of this waiver on June 6, these individuals, commonly referred to as Temporary Nurse Aides (TNAs), will have 4 months in which to complete any additional training and certification requirements, including the state certification exam.

LeadingAge members have expressed concern over backlogs for certification exams in their states. CMS is aware of these concerns and will release additional information in the future on how to proceed if a TNA is unable to complete training and certification requirements within 4 months due to state backlog. Until that time, CMS strongly encourages TNAs not to delay and to make immediate efforts toward compliance (i.e. certification).

In-Service Training

CMS previously waived requirements at 42 CFR 483.95(g)(1) for nurse aides to complete at least 12 hours of in-service training annually. At the time the waiver was issued, CMS stated that the deadline for completing this requirement would be postponed to the end of the first full quarter after the declaration of the public health emergency (PHE) concludes.

With the PHE extended into July and the waiver terminating on June 6, LeadingAge reached out to CMS for confirmation on the deadline for nurse aides to complete the required 12 hours of in-servicing training. CMS has confirmed that nurse aides will have 12 months following the termination of the waiver on June 6 (until June 2023) to complete the annually-required in-servicing training.

Physical Environment and Life Safety Code

Waiving requirements at 42 CFR 483.90 and §483.90(a), CMS has permitted nursing homes to use spaces that are not normally used as a resident’s room to accommodate resident care in emergencies and situations needed to help with surge capacity, and to erect temporary walls and barriers between residents to assist in cohorting and COVID-19 mitigation. This includes the use of spaces such as dining rooms, conference rooms, and activity rooms with temporary barriers for surge capacity.

CMS acknowledges that outbreaks continue across the country and that nursing homes may have continued need of these waivers after the June 6 termination. In these situations, CMS encourages providers to apply for an individual waiver. Information on applying for individual waivers is available here. You can apply for a waiver here.