Locke Lord QuickStudy: New CMS Waivers Intended to Help U.S. Healthcare System Address COVID-19 Pandemic

On March 30, 2020, the Centers for Medicare & Medicaid Services (CMS) announced the enactment of numerous temporary regulatory waivers and new rules intended to enable health care providers to better respond to the COVID-19 pandemic and the anticipated surge of patients. The waivers described in this QuickStudy focus upon increasing hospitals’ capacity and capabilities to treat COVID-19 patients, expanding hospitals’ workforce, elimination of paperwork, and expansion of telemedicine. The temporary regulatory waivers, discussed below, will apply immediately and for the duration of the COVID-19 emergency declaration.

CMS also has announced numerous other temporary waivers, including waivers of rules relating to the Stark Law, verbal orders, certain patients’ rights, utilization review, distinct part units, and others.  We will prepare further updates on these and other regulatory actions related to COVID-19.

We note that in addition to these CMS waivers, providers need to consult their state licensing laws, emergency rulemaking and regulatory guidance relating to COVID-19 and Emergency Preparedness Plan or Pandemic Plan.

1. Increase Hospital Capacity

CMS’s first temporary waiver is intended to increase hospitals’ capacity and capabilities for the treatment of COVID-19 patients. Under this waiver, ambulatory surgery centers may contract with local healthcare systems to provide hospital services. Alternatively, ambulatory surgery centers are permitted to enroll and bill as hospitals during the emergency declaration (provided that this is not inconsistent with their respective State’s Emergency Preparedness or Pandemic Plan). Services typically performed at hospitals, such as cancer procedures, trauma surgeries and other essential surgeries, may be performed at an ambulatory surgery centers under this waiver.

Physician-owned hospitals are permitted to temporarily increase the number of their licensed beds, operating rooms, and procedure rooms. For example, CMS indicates that a physician-owned hospital may temporarily convert observation beds to inpatient beds to accommodate patient surge during the public health emergency.

In addition, CMS is temporarily allowing non-hospital buildings and spaces, such as hotels and community facilities, to be used for patient care and quarantine sites. CMS notes that the location must be approved by the respective State and the hospital must still ensure the safety and comfort of patients and staff.

CMS will also allow hospitals, laboratories, and other entities to perform tests for COVID-19 on people at home and in other community-based settings outside of the hospital. Healthcare systems, hospitals, and communities may establish testing sites exclusively for the purpose of performing COVID-19 tests. In addition, CMS is permitting hospital emergency departments to test and screen patients for COVID-19 at drive-through and off-campus test sites.

Ambulances may transport patients to a range of locations when other transportation is not medically appropriate. The destination locations include community mental health centers, federally qualified health centers (FQHCs), physician offices, urgent care facilities, ambulatory surgery centers, and any locations furnishing dialysis services.

Lastly, hospitals may bill for services provided outside their four walls. Hospital emergency departments may use telehealth services to assess patients to determine the most appropriate site of care. Patients can be screened at alternate treatment and testing sites which are not subject to the Emergency Medical Treatment and Labor Act (EMTALA). This is intended to allow hospitals to screen patients at an off-site location to prevent the spread of COVID-19.

2. Expand the Healthcare Workforce

CMS notes that local private practice clinicians and staff may be available for temporary employment since nonessential medical and surgical services are postponed during the public health emergency. In light of this, CMS is allowing hospitals and healthcare systems to hire physicians, nurses, and other clinicians from the local community as well as those licensed from other states without violating Medicare rules. These healthcare workers can perform the functions they are qualified and licensed for while awaiting completion of federal paperwork requirements.

CMS also indicates that hospitals should use other practitioners, such as physician assistants and nurse practitioners, to the fullest extent possible in accordance with a state’s emergency preparedness or pandemic plan. As permitted under state law, these clinicians can perform services such as order tests and medications that may have previously required a physician’s order. Furthermore, CMS is waiving the requirement that a certified registered nurse anesthetist (CRNA) must be under the supervision of a physician. 

In addition, CMS is issuing a blanket waiver to allow hospitals to provide benefits and support to their medical staffs without violating the Stark Law, including daily meals, laundry service, or child care services while the staff are engaging in activities that benefit the hospital and its patients. CMS will also allow healthcare providers (clinicians, hospitals and other institutional providers, and suppliers) to enroll in Medicare temporarily to provide care during the public health emergency.

3. Elimination of Paperwork

CMS is providing temporary relief from many audit and reporting requirements so that providers, healthcare facilities, Medicare Advantage health plans, Medicare Part D prescription drug plans, and states can focus on providing needed care to patients. CMS is extending various reporting deadlines and suspending documentation requests.

Medicare will also cover respiratory-related devices and equipment for any medical reason determined by clinicians. Previously, Medicare only covered such devices and equipment under certain circumstances.  

During the public health emergency, hospitals are not required to have written policies on processes and visitation of patients who are in COVID-19 isolation. Hospitals will also have more time to provide patients a copy of their medical record.

4. Promote Telehealth

During the public health emergency, beneficiaries can use interactive technology with audio and video capabilities to visit with their clinician for a broader range of services. Providers may also evaluate beneficiaries who have audio phones only via phone and not video. Providers may bill for telehealth visits at the same rate as in-person visits. Telehealth visits include emergency department visits, initial nursing facility and discharge visits, home visits, and therapy services, which must be provided by a clinician that is allowed to provide telehealth. New and established patients may have these telehealth visits with their provider.

CMS is also allowing clinicians to utilize telehealth to fulfill many face-to-face visit requirements for inpatient rehabilitation facilities, hospice and home health. Clinicians can provide remote patient monitoring services to patients with acute and chronic conditions, and remote patient monitoring services may be provided for patients with only one disease. As an example, CMS indicates that remote patient monitoring can be used to monitor a patient’s oxygen saturation levels using pulse oximetry. Lastly, CMS is allowing physicians to supervise their clinical staff using virtual technologies when appropriate, instead of requiring in-person presence.

Your Locke Lord contacts and the authors of this article would be happy to ‎help you navigate the application of these CMS waivers and their implications for the health care industry.

Please visit our COVID-19 Resource Center often for up-to-date information to help you stay informed of the legal issues related to COVID-19.