Agencies Offer Regulatory Relief for Long-Term Care Facilities Amid Unprecedented Devastation from Hurricane Helene

Hurricane Helene has left unprecedented devastation across western North Carolina, impacting the lives of residents and staff in long-term care facilities. Dozens of facilities are coping with flooding, property damage, power outages, lack of basic supplies such as food and water, lack of telephone and internet access and other emergency issues. Many communities have been forced to be evacuated due to these conditions, with residents and staff spread across North Carolina in emergency sheltering communities.

In the wake of the storm, federal and state agencies have begun implementing waivers and flexibilities for certain licensing requirements for Skilled Nursing Facilities, Adult Care Homes, and Family Care Homes without the need for providers to make individual requests. We have compiled a summary of current agency action to help long-term care providers affected by Hurricane Helene in North Carolina. We will issue periodic updates as agencies continue to adjust and take major action to protect the health, safety and welfare of vulnerable seniors in North Carolina.

Skilled Nursing Facilities (SNFs)

The Centers for Medicare and Medicaid Services (CMS) has issued blanket waivers (found here) and other flexibilities for providers facing emergency conditions due to Hurricane Helene.

These waivers apply to providers located in the geographic area covered by the President’s declaration of an emergency as a result of Hurricane Helene on September 26, 2024, in the State of North Carolina, which mirror the North Carolina Governor’s Declared Statement Number FEMA-4827-DR.

The 25 counties covered in the President’s declaration are:

Alexander, Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Catawba, Clay, Cleveland, Gaston, Haywood, Henderson, Jackson, Lincoln, Macon, Madison, McDowell, Mitchell, Polk, Rutherford, Transylvania, Watauga, Wilkes, and Yancey Counties, as well as the Eastern Band of Cherokee Indians.

As response operations and eligible damages dictate, North Carolina may be able to add additional counties as assessments move forward.

The waivers are retroactive to September 25, 2024, and are in effect through the end of the Hurricane Helene Public Health Emergency (PHE), or when no longer needed.

Providers do not need to submit individual waivers via the CMS 1135 Waiver Portal for the blanket waivers already granted.

1. 42 CFR §483.20(b)(2) – Reporting on Minimum Data Set (MDS)
   1. Relief to SNFs on the timeframes in which they must conduct a comprehensive assessment and collect MDS data.
   2. Additional guidance on expanded timeframes should be forthcoming.
   3. No waiver of the requirements to conduct the assessment and collect the MDS data at 42 CFR § 483.20(b)(1).
2. 42 CFR § 483.20(k) – Pre-Admission and Annual Resident Review (PASARR)
   1. Allows nursing homes to admit new residents who have not received Level 1 or Level 2 Preadmission Screening.
   2. Level 1 assessments may be performed postadmission.
   3. On or before the 30^th day of admission, new patients admitted to nursing homes with a mental illness or intellectual disability should be referred promptly by the nursing home to State PASARR program for Level 2 Resident Review.
3. 42 CFR § 483.30 – Physician Visits in Skilled Nursing Facilities
   1. Waives the requirement for physicians and non-physician practitioners to perform in-person visits for nursing home residents.
   2. Allows visits to be conducted, as appropriate, via telehealth options.
4. 42 CFR § 483.90 – Physical Environment
   1. Allows 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, provided the location is approved by the State (ensuring that safety and comfort for the patient and staff are sufficiently addressed) and is consistent with the state’s emergency preparedness or pandemic plan.
   2. Rooms that may be used for this purpose include activity rooms, meeting/conference rooms, dining rooms, or other rooms, as long as residents can be kept safe, comfortable, and other applicable requirements for participation are met.
   3. Additional guidance on physical space usage should be forthcoming.
5. Three-Day Prior Hospitalization
   1. Using the authority under Section 1812(f) of the Social Security Act, CMS may cover SNF stays without a three-day prior inpatient hospitalization.
   2. In addition, for certain beneficiaries who recently exhausted their SNF benefits, it authorizes a one-time renewal of SNF coverage without first having to start a new benefit period. This portion of the waiver will apply only for those beneficiaries who have been delayed or prevented by the emergency itself from commencing or completing the process of ending their current benefit period and renewing their SNF benefits that would have occurred under normal circumstances.

The North Carolina Division of Health Service Regulation, Nursing Home Licensure and Certification Section has not yet issued additional guidance for Nursing Homes and any modifications or waivers under 10A NCAC 13D. We will update our summary with any additional developments.

North Carolina Board of Nursing

The North Carolina Board of Nursing has provided an update in response to Hurricane Helene and certain temporary waivers of licensing rules (found here):

1. Out of State Nurses
   1. During periods of official disaster designation, nurses not licensed in North Carolina are authorized to practice in North Carolina in an organized system/facility, with the American Red Cross, or with other official Disaster Relief Organizations under certain guidelines as outlined in the Board’s website.
2. Emergency Waivers for Inactive, Retired, and Expired Licenses, as well as Temporary Licensure by Endorsement
   1. The Board has implemented waivers in an effort to increase the workforce in western North Carolina, specifically addressing:
      1. Emergency Temporary Reinstatement of Inactive and Retired RNs and LPNs;
      2. Emergency Temporary Reinstatement of Expired License; and
      3. Emergency Temporary Licensure by Endorsement.

These waivers are in effect as of October 3, 2024, and will automatically expire on December 31, 2024. Applicants seeking to practice nursing pursuant to any of the above waivers are required to follow the guidelines and applications available on the Board’s website.

Other Professional Healthcare Licensure Boards

On October 5, 2024, the Governor of North Carolina signed Executive Order 318 (found here), delegating to various North Carolina professional healthcare licensure boards the authority to waive or modify enforcement of regulatory or licensing constraints that would otherwise prevent or impair the ability of out-of-state licensed healthcare professionals or volunteers to provide healthcare services in North Carolina in the aftermath of Hurricane Helene.

While no waivers or modifications have yet been announced for Nursing Home Administrators and Assisted Living Administrators, we will update our summary should flexibilities or waivers be issued by the corresponding licensing boards.

Adult Care Homes (ACHs) and Family Care Homes (FCHs)

It is expected that North Carolina Division of Health Service Regulation, Adult Care Licensure Section will issue waivers for certain licensing requirements applicable to Adult Care Homes and Family Care Homes licensed pursuant to N.C.G.S. § 131D, Article 1, and rules 10A NCAC 13F and 10A NCAC 13G, without the need for providers to make individual requests. These waivers will likely be subject to certain terms and conditions.

Once these waivers are announced, we will update our summary accordingly.

North Carolina Medicaid

Per the latest North Carolina Medicaid Bulletin dated October 1, 2024 (found here), the following flexibilities have been allowed for long-term care providers, effective from September 26, 2024, through October 15, 2024 (unless otherwise communicated by the North Carolina Department of Health and Human Services (“NCDHHS”)).

1. Providers Not Currently Enrolled as a North Carolina Medicaid Provider
   1. CMS granted approval for North Carolina Medicaid to implement a temporary, expedited enrollment process for providers to become a North Carolina Medicaid provider due to a natural disaster. This is for providers not already enrolled with North Carolina Medicaid.
2. Expediting Nursing Home Admissions for Individuals Displaced due to Hurricane Helene
   1. North Carolina Medicaid Direct and North Carolina Medicaid Managed Care will allow expedited nursing home admissions for individuals displaced by Hurricane Helene effective Sept. 26, 2024, through Oct. 15, 2024, (unless otherwise communicated by NCDHHS).
3. Temporary Waiver of PASRR Procedures
   1. North Carolina Medicaid Direct and North Carolina Medicaid Managed Care will not require Level I and II Preadmission Screening and Resident Reviews for new admissions effective Sept. 26, 2024, through Oct. 15, 2024, (unless otherwise communicated by NCDHHS).
4. Personal Care Services (“PCS”) Reimbursement
   1. North Carolina Medicaid Direct and North Carolina Medicaid Care beneficiaries who are displaced from their homes or facilities may continue to receive their PCS in their relocated settings.
   2. Additional guidance on processes and procedures is expected from North Carolina.
   3. Expedited, abbreviated, and telephonic assessments may be conducted from September 26, 2024, through October 15, 2024 (unless otherwise communicated by DHHS).