The Public Health Emergency for COVID-19 (PHE), as declared by the Department of Health and Human Services in March of 2020, will officially end on May 11, 2023.  The government, and specifically the Centers for Medicare & Medicaid Services (CMS), issued waivers and flexibilities for many aspects of healthcare delivery throughout the PHE.  Many of these waivers have already been discontinued.  Remaining waivers and flexibilities which affect long-term care providers are either set to expire in May or have been temporarily extended.

• COVID-19 Vaccines, Testing, and Treatments:
  • Medicare beneficiaries will continue to have access to vaccinations, testing when ordered by certain healthcare providers, and treatments. Medicaid coverage will vary by state beginning October 1, 2024.
  • Termination of the requirement for LTC facilities to conduct SARS-CoV-2 testing for staff and residents. LTC facilities must still follow CDC infection control requirements.
  • Nursing homes must continue to educate staff and residents on the risks and benefits of COVID-19 vaccination and assist in accessing vaccinations through May 2024, unless otherwise specified by CMS.
  • Extension of PREP Act immunity from liability through December 2024 to pharmacists, pharmacy interns, and pharmacy technicians in order to administer COVID-19 and influenza vaccines and COVID-19 tests.
  • The staff vaccination mandate remains in effect, but it is anticipated the rule could change based on changes to the vaccine and proposed immunization schedules.
• COVID-19 Reporting Requirements
  • Nursing homes will continue to be required to report COVID data to the CDC through the National Healthcare Safety Network (NHSN) through December 31, 2024. Vaccination status reporting continues through May 2024.
• Medicaid eligibility redetermination requirements will be reinstituted for states that accept federal contributions to the state Medicaid programs effective May 11, 2023.
• Nurse Aide Training for Nursing Homes
  • The Temporary Nurse Aide (TNA) waiver to allow nurse aides to work longer than four months without completing training ends on May 11. Facilities have until September 10, 2023, to have all nurse aides complete state approved training.  This applies to  nurse aids hired before the end of the PHE.
• Telehealth Services – Some PHE flexibilities were made permanent and others will continue through the end of 2024 for Medicare beneficiaries. Medicaid flexibilities vary by state.
  • Permanent changes for behavioral/mental health telehealth services:
    • can be received in home,
    • no geographic restrictions on originating site,
    • can be delivered using audio-only communications,
    • rural hospitals can be an originating site or distant site provider.
• Temporary telehealth changes through December 31, 2024, include:
  • Originating Site: no geographic restrictions, including home, for non-behavioral/mental telehealth services.
  • Expansion of Eligible Practitioners: physical therapists, occupational therapists, speech therapists, and audiologists.
  • Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) can continue providing telehealth services.
  • In-Person Requirement for Mental Health: mental health providers do not have to see patients in person prior to providing behavioral health services via telehealth.
  • Audio-Only: Medicare may cover audio-only services when appropriate.
  • The Acute Hospital Care at Home (AHCaH) Initiative can continue operating while HHS prepares a report comparing the AHCaH programs with traditional inpatient care.
  • Hospice Recertification: providers can use telehealth services to meet hospice face-to-face recertification requirements.
• A 90-day extension until August 9, 2023 has been issued by OCR for the use of HIPAA non-compliant communications platforms. This allows providers using non-compliant telehealth services (such as unsecure iPads, smart phones, or other technology) to come into compliance.  Facilities should also evaluate technology vendors and healthcare provider agreements and policies.
• Three-day prior inpatient hospitalization and Spell of Illness waivers for Medicare coverage of SNF admissions expires at the end of the PHE. The 3-day waiver was put in place to allow for expanded capacity during the pandemic and can only be made permanent through legislative action.
• Acute Hospital Care at Home: this initiative has been extended through December 31, 2024 to allow approved hospitals to expand their capacity through providing inpatient care at an individual’s home.
• Pre-Admission Screening and Resident Review: the PHE waiver allowed nursing homes to suspend these assessments for new residents for 30 days and this too expires May 11.
• Resident Roommates and Grouping/Resident Transfer and Discharge: CMS had waived the resident’s right to choose roommates and refuse relocation/transfer due to the need to group residents based on COVID status.  This waiver ends with the PHE.
• Virtual Supervision which allows the flexibility of supervising healthcare professionals to be available through real-time audio/video technology as opposed to physical presence will expire December 31, 2024.

Excelas has extensive experience assisting clients in managing claims and litigation related to COVID-19 allegations.  The Excelas Comprehensive Integrated Timeline Tool (CITT) contains an archive of over 10,000 documents of Federal and State Guidance (for select states.)  Juxtaposing the data from the individual’s medical records, the healthcare facility’s policies/procedures and published guidelines/standards in an easy-to-read timeline allows counsel to clearly tell the story of the case and demonstrate the practices and the standards in place at the time the alleged event occurred.