PREP ACT

Supreme Court PREP Act consideration requested by a nursing home facing a Covid-19 wrongful death case

A Supreme Court PREP Act hearing has been requested by a nursing home. It means the U.S. Supreme Court will have to decide whether it will hear a nursing home Covid-19 wrongful death case involving the PREP Act — potentially interpreting the federal statute for the first time.

California-based nursing home operator Glenhaven Healthcare asked the Supreme Court to consider taking up the case after the 9th U.S. Circuit Court of Appeals upheld a decision to keep the case in state court.

Similar cases are being heard, or have already been heard, all over the country. Of those that have made it to the federal appeals court stage, none have ruled that the PREP Act completely supersedes state law actions.

CMS

CMS drops ‘enormous’ MDS changes in surprise move

The Centers for Medicare & Medicaid Services surprised nursing home operators by quietly posting a draft of updated Minimum Data Set specifications. The agency had said earlier this year it would not be releasing a new version until early next year.

“The sheer volume of new data that providers will be required to collect in MDS 1.18.11 starting in October 2023 is significant and will require much in the way of preparation. To prepare for seven full pages of additional items to begin coding is no small task. Procrastinators, beware,” warns Joel VanEaton, executive vice president of PAC Regulatory Affairs and Education with Broad River Rehab.

CMS said a final version of the MDS 3.0 patient assessment tool will be released later this year. Changes will go into effect Oct. 1, 2023, as most recently announced in spring.

CMS

Operators urge CMS to reconsider winding down essential waivers

Nursing home operators told the Centers for Medicare & Medicaid Services (CMS) directly how much certain waivers helped their organizations during the pandemic, with the temporary nurse aide (TNA) and three-day stay waivers being the most beneficial.

SNF industry leaders also made their case for extending waivers or making some permanent, reminding the agency that recovery looks drastically different across the country.

Even members of Congress are speaking up, urging CMS to support states and TNAs amid the ongoing workforce shortage.

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UPDATED SINCE LAST NEWSLETTER

Excelas’ PREP Act Updates list summaries of relevant articles and selected court decisions, as well as additional recent court decisions, with hyperlinks for reference. We are continually updating cases as information becomes available. If you have insights to share, we welcome your contribution, with credit. The attached update is the most recent, including listings through October 2022.