Skilled nursing providers in at least 15 states averted the loss of thousands of frontline workers Thursday, when the Centers for Medicare & Medicaid Services let expire a blanket national waiver allowing the use of non-certified nurse aides.

Those states had been awarded new waivers through an application process, meaning they demonstrated testing backlogs or other delays that kept providers from converting a large share of temporary nurse aides into permanent certified nurse assistants.

There was a flurry of CMS approvals Wednesday and Thursday, with the agency telling McKnight’s Long-Term Care News that it had just one remaining state-level request pending. Of 651 individual nursing home waiver requests, the agency said 416 were covered under state waivers. The agency did not say how many of the others were granted.

Despite the relief for some, the “11th-hour” decision process left providers worrying about surveys and deficiencies if they were forced to retain non-certified aides with an application pending, LeadingAge PA President and CEO Garry Pezzano told McKnight’s. It still remains unclear what penalties providers face for staff non-compliance.

Nursing homes’ largest advocacy group had warned Monday that “tens of thousands” of other frontline workers in states without fresh waivers stood to lose their jobs even as the skilled nursing sector continues to climb back from a pandemic-era loss of 238,000 workers.

The American Health Care Association/National Center for Assisted Living earlier this week urged CMS to reissue the blanket waiver, whose imminent end was announced June 6. The temporary nurse aide program was created during COVID’s early days, when trained staff were even harder to come by than usual, and many training and testing centers closed, resulting in massive certification backlogs.

But a federal reprieve didn’t come Thursday, and the association didn’t hide its disappointment.

“CMS waited until the last few days to approve virtually every statewide waiver request that came across their desk,” Holly Harmon, AHCA’s senior vice president of quality, regulatory & clinical services, said in a statement. “The more sensible and streamlined approach would have been to reissue the blanket waiver nationwide. Moreover, these approved waivers will only last through the end of the COVID-19 public health emergency when we know state training and testing backlogs for certified nursing assistant applicants will extend well beyond that time.”

Harmon added that the organization was “deeply saddened” that many TNAs would no longer be able to provide care because the federal government “has failed to provide the necessary support.”

“The Administration’s inaction to retain these valuable and experienced caregivers will only further deplete the available workforce in nursing homes,” she said.

TNAs were meant to provide non-clinical nursing home coverage during the pandemic under a temporary, Section 1135 waiver. On June 6, they were given four months to complete CNA testing and training. Acknowledging backlogs, CMS in late August clarified that it would review applications for individual- , county- or state-level waivers that could last through the end of the public health emergency.

CMS responds

CMS late Thursday identified the 15 states now under waivers as Rhode Island, Massachusetts, Washington, Indiana, Louisiana, Maryland, Minnesota, Oklahoma, Pennsylvania, Texas, Vermont, New York, Georgia, New Jersey and Tennessee. Those waivers expire on various dates, but the latest any would run would be through the end of the PHE.

South Carolina’s application was the lone one outstanding, CMS added.

“CMS is continuing to consider waiver requests from states and facilities, but we will not be extending the nationwide blanket waiver,” the agency said. “CMS continues to evaluate the impact of these waivers on patient care and providers along with corresponding data… CMS has been actively seeking and obtaining feedback from all stakeholders on this issue, including industry associations, state agencies, and resident advocates. If there are any changes to our policies, we will communicate that to all stakeholders through CMS memorandum.”

The agency also encouraged nursing homes to work directly with state survey agencies and the state-approved test administrators “to address the current barriers and challenges to ensure trained and competent nurse aides are providing care and services.” 

Operational issues continue

Not all waivers were granted without pushback.

When CMS questioned how widespread ongoing issues with testing access were for Pennsylvania providers, Pezzano queried his members. About 75% of the 190 SNFs the organization represents had non-certified TNAs, with an average of nine per provider. But Pezzano said that figure ranged dramatically from as few as one to as many as 60.

The number of testing sites has increased there in recent months, but the state’s contracted testing agency still doesn’t have enough RN proctors to establish routine testing in all locations. LeadingAge PA is pressing for mass testing opportunities, which could be critical if the PHE is allowed to end in January. 

“These operational issues that need to be resolved have not been resolved yet. It takes time,” Pezzano said. “There was a real sigh of relief among our members and the industry, but you know, that sigh of relief is very brief. It’s right back to work to get these TNAs certified. All we want is a little bit more time.”

In comments to McKnight’s, CMS continued to encourage facilities with training or testing “barriers” to apply for a waiver by submitting the appropriate documentation per existing guidance.

Some who hadn’t heard decisions on their requests were still on pins and needles Thursday.

CareSpring operates 17 facilities in Kentucky and Ohio and applied for facility-level waivers in both after neither state sought an extension. CEO Chris Chirumbolo told McKnight’s that CMS had contacted the facilities requesting additional documentation of certification challenges but had still not issued a final decision yet.  

“We have been working with our national association and have reached out to members of Congress for assistance,” he said. “The TNA program should have minimally been continued through the end of the PHE. It will take years to get [the workforce] back to where we were pre-pandemic. The innovative TNA program has been successful. The program introduced the sector to some of the next generation of healthcare workers who will be here for the next 10-plus years.”

Waiver a lifeline or detriment?

LeadingAge has been asking CMS to extend TNA flexibility for 24 months and count on-the-job job training toward the 75-hour federal requirement.

“The Building America’s Health Care Workforce Act, introduced in May 2022, would do that — so we support the legislation, of course. It is an important first step,” spokeswoman Lisa Sanders said Thursday. “But more permanent policy changes are needed to get more qualified people on the floor as quickly as possible.”

AHCA also again implored legislators to back that bill after CMS’ inaction Thursday.

Even those not in need of waiver assistance support a broader approach to nurse aide staffing relief. Wisconsin Health Care Association CEO Rick Abrams told McKnight’s that state officials have worked hard to address certification training and testing access issues as they arose.

But Abrams disagreed with previous CMS statements that TNA positions needed to be eliminated because they coincided with decreases in care quality.

“The presence of TNAs and ENAs has been a lifeline for our sector and the vulnerable people for whom we care,” Arbams said. “To remove these committed professionals from working as CNAs will exacerbate the severe labor shortage our sector continues to experience. The issue continues to be a lack of applicants.  As such, our sector and policymakers must work together to create incentives to bring people in and then build advancement ladders so that working in long-term care is a career, not just a job.”

Without a more permanent fix, some providers may find themselves facing similar circumstances again when the PHE ends.