PHE Expiring May 11, 2023: Impact on Senior Living and Social Services

Property & Casualty, Risk, Senior Living & Social Services

On January 30, 2023, the Executive Office of the President released the Statement of Administration Policy which outlines the plan to extend the COVID-19 national emergency and public health emergency (PHE) to May 11, 2023.

Senior living and social services providers were all affected by the COVID-19 pandemic and the PHE which was declared by the Trump Administration in 2020. Many regulatory waivers were granted and considerations in the Interim Final Rule were in place for providers. While several waivers were already terminated throughout 2022, there are still a few waivers that will expire on May 11, 2023, and a few waivers and considerations that will continue into 2024.

Providers across the continuum will need to work to re-incorporate pre-pandemic standards. They will also need to consider continuing to strengthen areas that were vital to managing a pandemic.

Re-focusing and Strengthening Practices

Providers may consider re-focusing and strengthening practices in the following areas:

Quality Assurance and Performance Improvement (QAPI)

Without losing focus on infection prevention and control, providers should strengthen QAPI plans for other potential risk-adverse events. Consideration should be given to signs pre-litigation such as, increases in internal grievances from residents and family members (i.e., long call light times, failure to communicate or follow-up on reported concerns), on-site complaint investigations from state agencies, and records requests from families and attorneys. Areas of focus should include:

  • Communication response times and effectiveness of communication tools with families.
    • Consider adopting technology programs to efficiently communicate updates and changes that occur with individual residents/clients or facility wide
  • Clinical monitoring in areas such as wounds, falls, antibiotic stewardship which are leading loss drivers for liability claims.
  • Psychosocial needs, especially for behavioral health populations, and training of employees to care for this population.

In-Service Training/Competency for Care Staff

During the height of the pandemic, provider focus was on infection control and COVID-19 protocols, rather than training and education regarding standards of care and general care practices. Providers would be well served to review formal onboarding training checklists, mentoring programs, annual skills fairs, and documentation and retention of training/education in employee personnel files to avoid liability claims.

Telehealth Use

Providers will no longer be permitted to use unsecured technology such as iPads, smartphones, or other technologies for telehealth services that are not compliant with the strict HIPAA patient privacy requirements. The Office of Civil Rights will be allowing a 90-day transition period for providers to ensure alternative plans are in place for implementation of secured technologies or to make alternative arrangements for in-person visits. The transition period begins May 12, 2023, and ends at 11:59pm on August 9, 2023. It is strongly recommended that providers review and update policies and procedures, and equipment/technologies to meet HIPAA compliance requirements.

Facility Layout and Design Considerations

Facilities managed to create COVID-19 units and wings during the pandemic. Designing units and areas where there is potential for more private room availability and ease of securing off hallways and wings will be vital for managing ongoing concerns for COVID-19 and other potential pandemics or infections that require strict isolation.

Resident Roommates and Grouping

After the PHE ends, facilities will still be required to mitigate COVID-19 outbreaks while maintaining resident rights. Facilities should consider opening dialogue with resident and family council groups and involve the regional ombudsman when planning future outbreak room change needs. Communicating facility plans and policies around cohorting will be vital to decrease grievances and complaint investigations and inadvertently violating resident rights.

Resident Transfer/Discharge

Like waivers for resident room changes and groupings, facilities should continue to manage outbreaks while still maintaining resident rights. Providers should consider reviewing the facility’s emergency preparedness policies regarding emergency transfers and discharges to ensure regulatory requirements are met. Communication with resident and family councils regarding facility plans to manage resident transfers and discharges in the event of a COVID-19 or other outbreak will assist with decreased grievances and complaints in this area. It also allows the provider to be transparent with residents and families on how emergency plans are handled for a pandemic or related situations.

Emergency Preparedness Policies & Procedures

  • Ensure Memorandum Of Understandings (MOUs) are established with sister facilities or other providers in the region to quickly transfer residents in and out of the facility to other facilities equipped to care for residents.
  • Emergency Staffing Plans –Evaluate the effectiveness of your current emergency staffing plan and make it part of the QAPI process to review and ensure that resident and employee needs are met. Consider standing contracts or preferred vendor relationships with outside staffing agencies, sister-facilities, internal emergency pool staff, and outside providers that are in the same scope of work.
  • Strengthen relationships with community partners (i.e., local fire departments, EMS, area hospitals, local suppliers for PPE). These partners are vital to ensuring resident safety is intact during emergency situations.
  • PPE Supply Chain—Consider a standard par-level of supplies to be kept in the facility for pandemic use (i.e., 3-play masks, N95 masks, gowns, gloves, ABHR).

Regulatory Waivers and Interim Final Rule Considerations

Below are just some of the Regulatory Waivers and Interim Final Rule Considerations that providers should review their practices:

  • COVID-19 Reporting: Interim Final Rule; Most reporting requirements will continue until December 31, 2024, vaccination reporting will continue through May 2024.
  • COVID-19 Testing Requirements: Interim Final Rule; COVID-19 testing requirements for staff and residents will continue until the PHE ends; however, providers should continue to watch for CDC standards of practice regarding testing.
  • COVID-19 Vaccine Mandate Management: Interim Final Rule; Vaccine education requirements will likely continue through May 2024. Providers should expect the current vaccine administration mandate or a variation of vaccine mandate to continue as CDC and FDA continue to work on streamlining the vaccine schedule.
  • Nurse Aide Training: Regulatory Waiver; Expired June 2022 however, significant backlogs in training and testing are a concern. Check with your state nursing assistant registry for updates on any local waivers that were initiated. Local waivers will expire with the ending of the PHE.
  • Qualifying Hospital Stay: Regulatory Waiver; Medicare A coverage requirements for 3-day inpatient hospital stay will expire with the ending of the PHE. Lobbying efforts to eliminate the 3-day inpatient requirements are on-going. Check-in with your state associations and legislators on how you can support these efforts.
  • Pre-Admission Screening and Resident Review (PASARR): Regulatory Waiver; Bypassing PASARR for quick admissions from hospital to SNF will end with the PHE. Consider ensuring a process is in place internally and with referral sources to resume screenings prior to admission.

Key Takeaways:

With the public health emergency (PHE) expiring May 11, 2023, senior living and social services providers across the continuum will need to work to re-incorporate pre-pandemic standards. They will also need to consider continuing to strengthen areas that were vital to managing a pandemic.

Please contact your risk manager if you have questions on this topic.



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