What Waivers Are Still in Place Now that the Peacetime Emergency is Over?

Posted on July 7, 2021 by Jonathan Lips

With Minnesota's COVID-19 Peacetime Emergency ending July 1, a question on members' minds is what waivers are still in place and for how long. We do not have a lot of detail yet, but here is a summary of what we currently know.

Federal Waivers
The CMS blanket waivers of federal regulatory requirements for nursing facilities and other federally-certified providers remain in effect, except for those CMS has specifically terminated (see QSO 21-17-NH for a list of four waivers that ended in May). CMS has the authority to withdraw additional waivers as it deems appropriate, but we can expect to receive advance notice from CMS if it decides to do that.

However, it's important to note that if Minnesota has a state rule that parallels a federal rule, in most cases, we will need to follow the state rule when the state waiver ends, even if the federal waiver is still in place. We are awaiting information from the Minnesota Department of Health (MDH) that will allow us to map these issues out and provide the details you need.

MDH Waivers
By executive order from Governor Walz, MDH had the authority to modify and waive certain statutes and rules related to MDH programs in response to COVID-19. MDH maintains a list of waivers and modifications in effect and states that, except where the Department has specifically identified an earlier expiration date or shorter grace period, those waivers or modifications expire sixty days after the end of the Peacetime Emergency, or Aug. 30.

Several waivers affect aging services providers – such as SNSA maximum charges, flexibility to allow nursing homes rapid access to beds on layaway, and certain modifications to home care licensing, survey, and enforcement activities. Again, we will work with the Department to identify any of these waivers that expire before that date.

MDH separately clarified that state requirements for nursing assistant training and competency are waived in alignment with the CMS blanket waiver on this issue. We have explained to MDH that many care centers employ staff who are still completing training and testing and strongly emphasized the importance of continuing this waiver for some time.  

Consistent with the stated position of CMS concerning the federal requirement, we have specifically advocated for the four-month regulatory timeframe set by the state-level requirement to start at the time when the waiver ends – in other words, nursing assistants would have the full four-month period beginning from the end of the waiver to complete the required training and certification, regardless of the amount of time worked during the time the waiver was in effect.

MDH is working to determine the best approach to nursing assistant training and competency, and we will report to members as soon as we have additional information.

Minnesota Department of Human Services Waivers
The end of the Peacetime Emergency also ended the authority of DHS to modify and waive certain statutes and rules related to DHS programs.  DHS is currently working to analyze the language in the legislative Health and Human Services Omnibus bill that modified the transition timeline for several waivers and will be making updates to its waivers and modifications webpage to reflect revised dates soon. 

Our team will monitor DHS bulletins, manuals and other regular communication channels for program-specific guidance over the coming weeks.

One of the key DHS waivers affecting aging services related to background studies is that the HHS omnibus bill included language that extends the validity of emergency background studies for 365 days.

Evictions Moratorium
The governor’s executive order that suspended evictions is now terminated; however, the governor has signed into law a bill that extends various renter protections for varying lengths of time (see Article 5 of the omnibus Housing bill). These protections are tied in part to an individual's eligibility for a COVID-19 emergency rental assistance program. We are analyzing these provisions and their applicability to aging services providers, but for this week want members to be aware that eviction-related protections continue despite the end of the Peacetime Emergency.

We will continue working to confirm how the termination of the Peacetime Emergency affects waivers that have benefitted our members. We will provide more information on a rolling basis in the days ahead.

Please contact Jonathan Lips with any questions.