CMS Issues Guidance for the Expiration of the COVID-19 Public Health Emergency

The Centers for Medicare and Medicaid Services (CMS) has issued QSO-23-13-ALL (PDF) Guidance for the Expiration of the COVID-19 Public Health Emergency (PHE).

This memorandum outlines the expiration of the emergency waivers issued during the PHE related to the minimum health and safety requirements for Long-term Care (LTC) and Acute and Continuing Care (ACC) providers. This memorandum also describes the timelines for certain regulatory requirements issued during the PHE through Interim Final Rules with Comments (IFCs).

This QSO replaces several other QSOs (see QSO-23-13-ALL (PDF) in its entirety for more detail) and announces the end of certain waivers and COVID-19 requirements concurrent to the end of the PHE.

Staff Vaccination Requirements for ALL providers

CMS will soon end the requirement for Intermediate Care Facility (ICF) providers to establish policies and procedures for staff vaccination and will share more details regarding ending this requirement at the anticipated end of the public health emergency. CMS continues to remind everyone that the strongest protection from COVID-19 is the vaccine and urges everyone to stay up to date with your COVID-19 vaccine.

Emergency Preparedness for ALL providers

Training and Testing Program Exemption

The following information supersedes the previously issued QSO-20-41-ALL-REVISED (PDF) memo for all certified providers/suppliers. CMS regulations for Emergency Preparedness (EP) require the provider/supplier to conduct exercises to test their EP plan to ensure that it works, and that staff are trained appropriately about their roles and the provider/supplier’s processes.

During or after an actual emergency, the EP regulations allow for a one-year exemption from the requirement that the provider/supplier perform testing exercises. The exemption only applies to the next required full-scale exercise (not the exercise of choice), based on the 12-month exercise cycle. The cycle is determined by the provider/supplier (e.g., calendar, fiscal or another 12-month time frame).

The exemption only applies when a provider/supplier activates its emergency preparedness program for an emergency event. Providers/suppliers are expected to return to normal operating status and comply with the regulatory requirements for emergency preparedness with the conclusion of the PHE.

This includes conducting testing exercises based on the regulatory requirements for specific provider/supplier types as follows:

  • Inpatient Providers and Suppliers, which includes ICFs for Individuals with Intellectual Disabilities (ICF/IIDs): The provider/supplier must conduct a full-scale exercise within its annual cycle for 2023 and an exercise of choice.

ICFs for IIDs:

Alcohol-based Hand-Rub (ABHR) Dispensers – 42 CFR §483.470(j) for ICF/IIDs

  • CMS waived the requirement for ABHR dispensers. CMS waived the prescriptive requirements for the placement of ABHR dispensers for use by staff and others due to the need for the increased use of ABHR in infection control. The waiver of this requirement ends upon the conclusion of the PHE.

Suspension of Community Outings – 42 CFR §483.420(a)(11)

  • CMS waived the requirements for clients to have the opportunity to participate in social, religious, and community group activities. The waiver of this requirement ends upon the conclusion of the PHE.

Suspension of Mandatory Training Requirements – 42 CFR §483.430(e)(1)

  • CMS waived, in part, the requirements related to routine staff training programs unrelated to the PHE. The waiver of this requirement ends upon the conclusion of the PHE.

Modification of Adult Training Programs and Active Treatment – 42 CFR §483.440(a)(1)

  • Active treatment (ICF) – waived requirement for resident to receive a continuous active treatment program. Note: surveyors begin surveying for compliance July 11, 2023 (60 days after PHE ends).

Staffing Flexibilities – 42 CFR §483.430(c)(4)

  • Staffing flexibilities (ICF) – waived the requirements for the facility to provide sufficient Direct Support Staff (DSS) so that Direct Care Staff (DCS) are not required to perform support services (such as cleaning of the facility, cooking, and laundry services) that interfere with direct client care. Note: surveyors begin surveying for compliance Jan. 1, 2024 (after end of calendar year in which PHE ends).

The Period for IFCs for ICF Providers Issued During the PHE

Pursuant to section 1871(a)(3) of the act, Medicare interim final rules typically expire three years after issuance unless they are finalized, or CMS determines an earlier end date.

On May 13, 2021, CMS issued an IFC (86 FR 26306 through 26336) (PDF) revising the infection control requirements that ICFs/IID must meet to participate in the Medicare and Medicaid programs. ICFs/IID are encouraged to report COVID-19 vaccine and therapeutics treatment information to the CDC’s NHSN.

Read the QSO-23-13-ALL (PDF) for further details.

Effective Date: Immediately. Please communicate to all appropriate staff within 30 days.