On Monday (April 11), CMS proposed its Medicare payment rate update to nursing home Medicare reimbursements for fiscal year 2023, which includes a 4.6% cut related to the Patient-Driven Payment Model. This includes a 2.8% market basket update and a 1.5% point forecast error adjustment, as well .4% lower productivity adjustment. Overall, this cut will result in an estimated aggregate decrease of about $320 million in Medicare Part A payments to SNFs, which is less than what AHCA NCAL was predicting. A 60-day comment period will follow the proposed payment rule announcement after which CMS will issue a final rule with new payments going into effect in October.

In the same announcement, CMS also said it intends to add three new metrics to its value based purchasing (VBP) program. One such metrics and in a major foreshadowing of a minimum staffing rule it plans to introduce early next year, CMS said it will add total nursing hours per resident, per day to its value based purchasing (VBP) program. The other additions include:

• Healthcare Associated Infections Requiring Hospitalization, an outcome measure that assesses performance on infection prevention and management.
• Total nursing hours per resident day, a a structural measure that uses auditable electronic data to calculate total nursing hours per resident each day.
• Discharge to community, which will encourage SNFS to successfully discharge patients back to the community.

The 256-page rule was released Monday afternoon. A CMS fact sheet outlined the numerous changes. Please submit your comments by April 10 by clicking here.

Additionally, AHCA NCAL will host a member-only webinar on Thursday, April 14 at 4 PM Eastern. AHCA NCAL President and CEO Mark Parkinson will provide an overview of the proposed rule and brief the membership on submitting comments to CMS. The webinar will be recorded, and all registrants will receive an email when the recording is ready. If you have questions or need assistance registering, please email educate@ahca.org.

CMS to Phase Out SNF TNA Program, Other Emergency Declaration Blanket Waivers

Last Thursday (April 7) CMS issued QSO-22-15-NH & NLTC & LSC which says they are phasing out some temporary waivers linked to the public health emergency (PHE). Of note, the 3-Day stay, and spell of illness waivers are not impacted by this announcement.

One of the waivers that will be ending is the requirement that a SNF may not employ any nurse aides for longer than four months unless they met the training and certification requirements under §483.35(d), in other words the Temporary Nurse Aide (TNA) program. Basically, the TNA program will end on June 6 or 60 days from the issuance of the above memo. CMS said, citing long-term care survey findings that link resident weight loss, depression and pressure ulcers to the “lack of certain minimum standards,” according to the memo. Temporary waivers for nurse aide certification will still be available in certain situations – for example, facilities with documented capacity issues in training or testing programs.

CMS expects providers to take immediate steps so that they may return to compliance with the reinstated requirements. CMS will end specified waivers in two groups – they are:

30 days from issuance of this memorandum - Saturday, May 7, 2022

• Resident Groups 
• Physician Delegation of Tasks in SNFs
• Physician Visits
• Physician Visits in Skilled Nursing Facilities/Nursing Facilities
• Quality Assurance and Performance Improvement (QAPI)
• Detailed Information Sharing for Discharge Planning for Long-Term Care (LTC) Facilities
• Clinical Records 

60 days from issuance of this memorandum - Monday, June 6, 2022

• Training and Certification of Nurse Aides for SNF
• Physical Environment
• Life Safety Code (LSC) and Health Care Facilities Code (HCFC) ITM
• Outside Windows and Doors
• Life Safety Code (LSC) Fire Drills & Temporary Construction
• Paid Feeding Assistants for LTC facilities
• In-Service Training for LTC facilities

Please contact AHCA’s Kay Huff for further information.



Action at the state capitol was extremely slow last week—in fact, the House only gaveled in for two of their four workdays.

The Senate continued to meet each day, although the agendas were short. We can expect this pattern to continue while leadership continues to negotiate on the budget.

We are swiftly approaching the 100-day mark for the session—only EIGHT days until that deadline. Once we reach the 100-day mark, leadership may extend the session by seven days, and thereafter a majority vote of both chambers is required to continue to do business.

Ultimately, around 400 of the nearly 1800 bills introduced are still in play for this year, although not all of them will become law. With things like tax cuts, additional funding for education and water, as well as infrastructure the legislators may be in town for a while. They traditionally give themselves 100 days to complete session, but this may go well beyond that… time will tell!

Most of AHCA’s legislation has been completed except for HB 2049 – Fingerprint Requirements. This legislation still has a couple more steps to go but is well on its way as it passed the Senate.

While we are still in legislative session, last week also marked an important deadline for the 2022 election taking place in November. Signatures were due to the Secretary of State to qualify for the ballot, and pending any litigation over signature verification, we know who is running for reelection and who isn’t.

In nearly half of the Arizona Senate races, the entire race is in the primary since no candidate from the opposing party is even running. The same is true in several House districts, although they don’t match the unopposed Senate districts.

No matter what happens in November, both the Republicans and Democrats will have a guaranteed seven Senate seats and 21 and 17 House seats, respectively, when the 56th Legislature convenes in January 2023.

CMS has released revised interpretive guidance for the COVID-19 vaccine mandate interim final rule (IFR). Three memoranda have been updated, including QSO-22-07-ALL-Revised, QSO-22-09-ALL-Revised, and QSO-22-11-ALL-Revised. CMS emphasized that “good-faith efforts” by providers will be rewarded, and gave examples, in the guidance. 

The revisions were made to clarify the expectations for assessing compliance with the requirement to ensure all staff are vaccinated. AHCA/NCAL has highlighted key revisions, but providers are encouraged to review the Long-Term Care and Skilled Nursing Facility Attachment A-Revised, as well as the applicable memo listed above, for detailed changes. 

CMS noted it may lower the scope and severity of a citation and/or enforcement action if it can identify if any of these actions occurred prior to the survey: 

• If the facility has no or has limited access to the vaccine, and the facility has documented attempts to obtain vaccine access. 
• If the facility provides evidence that they have taken aggressive steps to have all staff vaccinated, such as hosting vaccine clinics. 
•  

The agency added the following example to illustrate how providers may receive relief from good-faith efforts:

“… if the facility staff vaccination rate is 90% or more, there is no resident outbreak in the previous 4 weeks, and all policies and procedures were developed and implemented, per Table 1 this would be cited ‘D.’ However, if the facility provides evidence that it has made a good faith effort by taking aggressive steps to get all staff vaccinated, surveyors may lower the citation to ‘A.’”

CMS Releases Revised Guidance on Vaccine Mandate IFR (ahcancal.org)

Mitigating Factors Reducing the Risk of COVID-19

The requirement of F888 COVID -19 Vaccination of Facility Staff requires facilities to ensure all staff are fully vaccinated for COVID-19 and to have policies and procedures by which staff may request an exemption. It also requires facilities to implement additional precautions to mitigate the spread of COVID-19 for staff who have been granted an exemption, a temporary delay, or who have only received the first dose of a multi-dose primary COVID-19 vaccination. F888 lists several actions facilities can implement for these staff members they include:

• Reassigning staff to non-patient care areas.
• To follow additional CDC-recommended precautions, such as adhering to universal source control and physical distancing measures.
• Requiring at least weekly testing in areas of low to moderate community transmission.
• Requiring them to use NIOSH approved N95 or equivalent or higher-level respirator for source control.

The revised F888 notes that this requirement is not explicit and does not specify which actions must be taken. The examples above are not all inclusive and represent actions that can be implemented. Facilities can choose other precautions that align with the regulation and are intended to mitigate the transmission and spread of COVID-19 for all staff who are not fully vaccinated.

Lastly, facilities must also ensure that staff who have not been granted an exemption, have a pending request.

Survey Process Update for F888

In regard to the survey process for F888 COVID-19 Vaccination of Facility Staff it has been updated. It now indicates that surveyors may modify the staff vaccination compliance review if the facility was determined to be in substantial compliance with this requirement within the previous six weeks. It also says that surveyors conducting Life Safety Code (LSC)-only complaints (LSC-only) follow-up surveys, are not required to investigate compliance at F888. However, surveyors conducting standard surveys or complaint investigations will still be required to review compliance for the staff vaccination requirement.