On March 30, 2020, the Centers for Medicare & Medicaid Services (CMS) issued a series of temporary regulatory waivers in order to aid the response to the 2019 Novel Coronavirus (COVID-19), as follows.

 Coronavirus, Essential Services

Increasing Hospital Capacity – Hospitals Without Walls

Federal rules have historically required hospitals to provide their services within their hospital buildings. However, in order to increase hospital capacity, CMS has issued temporary rules under the Hospitals Without Walls Initiative, which permit healthcare systems to provide hospital services in non-hospital buildings such as dormitories, hotels, and other facilities. Such non-hospital buildings must first be approved by the State. Once approved, these buildings may be used for several purposes, including patient care or quarantining. Local ambulatory surgery centers, which have canceled elective surgeries, may also temporarily enroll and bill as hospitals, or contract with healthcare systems to provide hospital services, as long as such actions are not prohibited by the State’s regulations and emergency preparedness policies. To further increase capacity and accommodate more patients, physician-owned hospitals are also permitted to temporarily increase the number of licensed beds in their facilities. This includes the ability to temporarily convert non-inpatient beds, such as observation beds, to inpatient beds.

Hospitals may bill for services that are provided in other locations under this initiative. In order to effectively use these additional healthcare facilities, hospitals may use telehealth prior to admitting patients in order to determine the best site for care. New rules also allow for patients to be temporarily screened at treatment and testing sites that are not subject to the Emergency Medical Labor and Treatment Act (EMTALA).

CMS is also increasing access to COVID-19 testing through this initiative. Specifically, testing may be performed in patients’ homes or in other community-based settings that are not in a hospital, including testing sites exclusively for COVID-19 testing and drive-through and off-campus test sites for hospital emergency departments. The risk of exposure will be reduced as a result of the expanded opportunities for testing.

Finally, during the pandemic, CMS is allowing ambulances to transport patients to a broader set of locations for treatment, including mental health centers, urgent care facilities, doctor offices, ambulatory surgery centers and dialysis centers. Overall, this initiative and the new CMS guidelines will help address the expected surge of COVID-19 patients that will likely overwhelm hospitals in the coming weeks.

Expansions to the Healthcare Workforce

CMS has provided flexibility for hospitals and healthcare systems that need extra assistance to be able to rapidly increase their healthcare workforce. First, CMS is enabling healthcare providers, under a broad definition that includes clinicians, hospitals, institutional providers and suppliers, to temporarily enroll in Medicare during the emergency.

CMS has also removed barriers for healthcare workers to be hired, both from the local community and from among those licensed in other states. This includes clinicians and staff who are available due to the postponement of many non-essential medical and surgical services. While these workers may still need to complete federal paperwork requirements (i.e., to be able to work in a different state with their out-of-state licenses), they will be able to perform their duties in the interim while these requirements are being fulfilled.

Additionally, CMS will allow hospitals to use certified registered nurse anesthetists, nurse practitioners, and physician assistants to the fullest extent possible, including allowing these clinicians to perform services that may have previously required a physician’s co-signature or supervision.

Paperwork Requirements – Patients Over Paperwork

CMS has issued guidance to temporarily reduce the administrative burdens on healthcare providers so providers can focus on patient care. Specifically, Medicare will cover all respiratory-related equipment for any reason. In the past, Medicare only covered such devices under certain circumstances. During the emergency, hospitals are also not required to maintain written policies regarding visitation of COVID-19 patients. Moreover, the time within which hospitals have to provide to patients a copy of their medical record is extended. Finally, CMS is relaxing many audit and other administrative requirements by granting exceptions from reporting requirements, extending deadlines and suspending requests for documentation. The expected outcome is that providers and plans will be able to focus more of their attention and resources on patients.

Promotion of Telehealth

Keeping in line with its support and promotion of telehealth in response to COVID-19, CMS issued even further guidance to expand reimbursement for 80 additional services provided via telehealth, for the duration of the emergency. Providers are now able to evaluate beneficiaries on audio-only phones when, previously, video capabilities were required for such evaluations. Moreover, many interactions that previously required face-to-face visits with a physician may now be fulfilled through telehealth, such as for patients receiving services from rehabilitation facilities, hospice, or home health agencies. Clinicians are additionally able to remotely monitor single-disease patients with acute and chronic conditions as well as remotely supervise clinical staff when appropriate.

Telehealth visits may be billed at the same rate as in-person visits. Such visits include emergency department visits, initial nursing facility and discharge visits, home visits, and therapy services. No additional or different modifiers are required when billing for telehealth services under the CMS waivers.

For further discussion regarding previous expansions to telehealth in response to COVID-19, please see our recent blog post here.

Stark Law Waivers

On March 30, CMS also issued numerous waivers of sanctions related to Section 1877(g) of the Social Security Act (the “Stark Law”).  For more information related to CMS’ Stark Law waivers, please see our recent blog post here.

Given the speed with which COVID-19 has prompted a wide-range of legal action at the federal, state and local governmental levels, this blog article is not exhaustive.  Things are changing quickly and there is no clear-cut authority or bright line rules.  This is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand.  This post does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic.


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*This alert is provided for information purposes only and does not constitute legal advice and is not intended to form an attorney client relationship.  Please contact your Sheppard Mullin attorney contact for additional information.*