CMS Finally Withdraws Dangerous Waivers of Nursing Home Patient Safety Regulations

by James C. Sherlock

I published a series of articles last year on the dreadful conditions in some of Virginia’s nursing homes as reported by Medicare.

Two key observations were that:

  • bad nursing homes were traceable to specific chain operators; and
  • the Virginia Department of Health had admitted it was desperately short of inspectors.

Those two things are still true.

A major problem at that time was that nursing homes were provided an extensive set of waivers of patient safety regulations by the Centers for Medicare/Medicaid Services (CMS). Those “COVID” waivers were overdone when granted and have been in place far too long.

This is a really big deal. CMS admits “mistakes were made” with waivers that endangered patients.

They are finally scheduled to be withdrawn.

Recommendation #1. I strongly recommend that anyone with a loved one in Skilled Nursing Facilities (SNFs)/Nursing Facilities (NFs), inpatient hospices, Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs/IID) and End-Stage Renal Disease (ESRD) facilities from whom the waivers are being withdrawn take the applicable part of the list below to a meeting with the manager of the facility.

Ask him to comment on how the facility intends to comply with each of the newly-restored regulations. If there is a formal loved-ones group at the facility, ask that the issues be addressed at the next meeting.

If you get an unsatisfactory response, contact your local Long Term Care Ombudsman for assistance. If you wish to file a patient health or safety complaint, call the VDH Office of Licensure and Certification complaint hot line 24/7 365 at

  • Toll Free: 1-800-955-1819
  • Metro Richmond area: (804) 367-2106

Recommendation #2.  I suggest that VDH, lacking sufficient inspectors of its own, contract with CMS licensed inspection organizations to fill the gaps and inspect Virginia nursing homes on an aggressive schedule after the expiration of the waivers.

The schedule of the waiver withdrawals was published in a memo to State Survey Agency Directors (VDH) dated April 7.

The CMS mea culpa in part:

While the waivers of regulatory requirements have provided flexibility in how nursing homes may operate, they have also removed the minimum standards for quality that help ensure residents’ health and safety are protected. Findings from onsite surveys have revealed significant concerns with resident care that are unrelated to infection control (e.g., abuse, weight-loss, depression, pressure ulcers, etc.).

We are concerned that the waiver of certain regulatory requirements has contributed to these outcomes and raises the risk of other issues. For example, by waiving requirements for training, nurse aides and paid feeding assistants may not have received the necessary training to help identify and prevent weight-loss.

Similarly, CMS waived requirements for physicians and practitioners to perform in-person assessments, which may have prevented these individuals from performing an accurate assessment of the resident’s clinical needs, contributing to depression or pressure ulcers.

Lastly, due to the waiver of certain life- safety code requirements, facilities may not have had their fire prevention systems inspected to ensure they operate effectively to detect or prevent fire. As a result, CMS is very concerned about how residents’ health and safety has been impacted by the regulations that have been waived, and the length of time for which they have been waived.

Other than that, Mrs. Lincoln…

Waivers expiring. Here are the waivers and their expiration dates (from April 7). CMS is ending the specific emergency declaration blanket waivers for SNFs/NFs, inpatient hospices, ICFs/IID and ESRD facilities.

Emergency Declaration Blanket Waivers Ending for SNF/NFs May 8:

  • Resident Groups 

CMS waived the requirements which ensure residents can participate in-person in resident groups. This waiver permitted the facility to restrict in-person meetings during the COVID-19 PHE.

  • Physician Delegation of Tasks in SNFs 

CMS waived the requirement that prevents a physician from delegating a task when the regulations specify that the physician must perform it personally.

This waiver gave physicians the ability to delegate any tasks to a physician assistant, nurse practitioner, or clinical nurse specialist, but specified that any task delegated under this waiver must continue to be under the supervision of the physician.

  • Physician Visits

CMS waived the requirement that all required physician visits (not already exempted in §483.30(c)(4) and (f)) must be made by the physician personally.

The waiver modified this provision to permit physicians to delegate any required physician visit to a nurse practitioner, physician assistant, or clinical nurse specialist who is not an employee of the facility, who is working in collaboration with a physician, and who is licensed by the State and performing within the state’s scope-of-practice laws.

  • Physician Visits in Skilled Nursing Facilities/Nursing Facilities 

CMS waived the requirement for physicians and non-physician practitioners to perform in-person visits for nursing home residents and allow visits to be conducted, as appropriate, via telehealth options.

  • Quality Assurance and Performance Improvement (QAPI) 

CMS modified certain requirements which require long-term care facilities to develop, implement, evaluate, and maintain an effective, comprehensive, data- driven QAPI program.

This waiver gave providers the ability to focus on adverse events and infection control, and those aspects of care delivery most closely associated with COVID-19 during the PHE.

  • Detailed Information Sharing for Discharge Planning for Long-Term Care (LTC) Facilities

CMS waived the discharge planning requirement which requires LTC facilities to assist residents and their representatives in selecting a post-acute care provider using data, such as standardized patient assessment data, quality measures and resource use. CMS maintained all other discharge planning requirements.

  • Clinical Records 

CMS modified the requirement which requires long-term care (LTC) facilities to provide a resident a copy of their records within two working days (when requested by the resident).

Emergency Declaration Blanket Waivers For Various Provider-Types Ending June 7:

  • Physical Environment for SNF/NFs   

CMS waived requirements to allow for a non-SNF building to be temporarily certified and available for use by a SNF in the event there were needs for isolation processes for COVID-19 positive residents, which may not be feasible in the existing SNF structure to ensure care and services during treatment for COVID- 19, provided that the state has approved the location as one that sufficiently addresses safety and comfort for patients and staff.

Certain conditions of participation and certification requirements for opening a NF if the state determines there is a need to quickly stand up a temporary COVID-19 isolation and treatment location.

Requirements to temporarily allow for rooms in a long-term care facility not normally used as a resident’s room, to be used to accommodate beds and residents for resident care in emergencies and situations needed to help with surge capacity.

  • Equipment Maintenance & Fire Safety Inspections for ESRD facilities 

CMS waived the requirement for on-time preventive maintenance of dialysis machines and ancillary dialysis equipment. Additionally, CMS waived the requirements for ESRD facilities to conduct on-time fire inspections.

  • Facility and Medical Equipment Inspection, Testing & Maintenance (ITM) for Inpatient Hospice, ICF/IIDs and SNFs/NFs 

CMS waived ITM requirements for facility and medical equipment to reduce disruption of patient care and potential exposure/transmission of COVID-19.

  • Life Safety Code (LSC) and Health Care Facilities Code (HCFC) ITM for Inpatient Hospice, ICF/IIDs and SNFs/NFs 

CMS waived ITM required by the LSC and HCFC, with specified exceptions, which permitted facilities to adjust scheduled ITM frequencies and activities to the extent necessary.

  • Outside Windows and Doors for Inpatient Hospice, ICF/IIDs and SFNs/NFs 

CMS waived the requirement to have an outside window or outside door in every sleeping room. This permitted spaces not normally used for patient care to be utilized for patient care and quarantine.

  • Life Safety Code for Inpatient Hospice, ICF/IIDs, and SNFs/NFs

CMS waived these specific LSC provisions:

Fire Drills: Due to the inadvisability of quarterly fire drills that move and mass staff together, CMS permitted a documented orientation training program related to the current fire plan, which considered current facility conditions.

Temporary Construction: CMS waived requirements that would otherwise not permit temporary walls and barriers between patients.

  • Paid Feeding Assistants for LTC facilities

CMS modified the requirements regarding required training of paid feeding assistants to allow that training can be a minimum of one hour in length.

CMS did not waive other requirements related to paid feeding assistants or required training content.

  • In-Service Training for LTC facilities 

CMS modified the nurse aide training requirements for SNFs and NFs, which required the nursing assistant to receive at least 12 hours of in-service training annually.

  • Training and Certification of Nurse Aides for SNF/NFs

CMS waived the requirements which require that a SNF and NF may not employ anyone for longer than four months unless they met the training and certification requirements under §483.35(d).