COVID-19 Regulatory Update – 4/1/2020April 1, 2020 Created by a member of the ACPA Advisory Board via the ACPA Government Affairs Committee The national emergency over the COVID-19 pandemic has opened the floodgates of regulatory changes that affect physician advisors and their hospitals. The regulations are also evolving by the day, as can be seen with the billing advice for telehealth. CMS has issued many waivers, all of which are applicable to every provider in the country and none of which require the provider to “ask permission” from CMS to use it. But CMS Administrator Seema Verma noted that while all the waivers are blanket waivers covering all providers in the country, “if you don’t need the waiver, you shouldn’t be using it. We are calling on local communities to decide what the situation is in their area and make decisions accordingly.” As you read these summaries, keep that in mind. It is also important to note that no waivers can override any state law or regulations which are more restrictive unless the state also waives the requirement. Non-Medicare payers may also have separate requirements. To assist ACPA members, I have summarized some of the most pertinent CMS regulatory changes in this document. You can find more detailed information, including state waivers, here: Telehealth - All office, hospital (inpatient, outpatient, and ED), SNF, hospice, and ESRD visits can be performed via FaceTime or similar technologies. The visits are coded as if done in person and the modifier -95 added to the claim. These technologies are not HIPAA-compliant but the govt is using enforcement discretion to allow their use. Residents may do telehealth visits with attending supervision but the attending does not need to be on site with the residents. Utilization Review - All provisions of 42 CFR 482.30 are waived. You may suspend your UR plan and not hold UR Committee meetings. You do not need to review admissions or continued stays. Your doctors can change a Medicare inpatient to outpatient with an order and not use the Condition Code 44 process. CMS has not waived 42 CFR 412.3, the two midnight rule, so you still must get patients in the right status. Note though that MA plans and commercial plans are still actively denying admissions and following screening criteria. Also note that the Medicaid regulations at 42 CFR 456.50-150 on “utilization control” mirror much of Medicare’s regulations and are not waived. We recommend you submit a conforming waiver request to your state for the Medicaid utilization regulations. Discharge Planning - Offering a full list of participating post-acute providers with information on quality and resource use is waived. Informing the patient of freedom of choice is also waived, although the patient still has the right to freedom of choice. You may provide patients with the choice of post-acute providers that are capable of providing the care they need and are available to provide that care. Patient Notices - The requirement to deliver the notices in person and provide an explanation has been waived. All mandated notices must still be provided but the form can be provided to the patient or representative by any staff member with a phone number to case management for questions. April 1st is the deadline to start using the new IM, MOON, and DND. We have had no word on that date being delayed but if you have not yet started using the new forms, you should consult your compliance officer about continuing to use the old form until the emergency declaration has passed. SNF - A patient with skilled needs may be admitted to a SNF or a swing bed for part A care without a 3-day inpatient admission. They may be admitted to the SNF from home, a doctor’s office, the ED, outpatient status, or any inpatient stay. The requirement for a PASRR screening is being waived on a state-by-state basis. Many SNFs have set their own criteria for accepting patients, including requirements that exceed the CDC guidelines. They are permitted by law to do that but some hospitals have had success changing those by working with the state health department to provide resources to the SNF so they feel comfortable accepting patients. Other states are moving patients within and between SNFs to create COVID and COVID-free facilities. EMTALA - The enforcement of the medical screening examination has been waived, allowing a patient who presents to an ED to be referred to an off-campus location for a medical screening examination. Normally this is not allowed, but the requirement is being waived to allow for more effective COVID-19 cohorting and isolation. Because this is complex, I would refer you to this 3-30 CMS memo. Oxygen - CMS is allowing physicians to order oxygen for patients that do not meet the NCD requirements, including being in a stable state. How this is operationalized on the DME end I do not know. I suspect they will still want the CMN completed along with a written physician order. Home Health - A patient will be considered homebound and able to start home care services if a physician determines that they must be isolated at home and they require skilled services. There does not need to be a face-to-face visit with a practitioner. For example, a patient with a wound who is receiving wound care services at the clinic but now has a fever and cough can be considered homebound and home health care can be ordered for their wound care. NPs, PAs, and clinical nurse specialists can order home care services and home equipment. OASIS requirements have been significantly loosened. Verbal Orders - Can be used more liberally, and the requirement for authentication within 48 hours is waived. Anesthesia - CRNAs may provide services without anesthesiologist supervision, if consistent with their licensure, hospital policy, and state law. IRFs and LTACHs - IRFs are no longer required to provide 15 hours a week of therapy. LTACHs can accept patients without an expected LOS of 25 days and all admissions will be paid at the LTACH rate with the site neutral payment method waived. IRF, LTACH, or other “excluded unit” beds that are in a hospital campus may also be used for acute care patients and the care billed as acute care. The IRF post-admission H&P requirement is waived. CAHs - Critical access hospitals may exceed their 96 hour expected LOS and 25 bed limit. Stark law - Another complex area that should be left to lawyers but in short hospitals may furnish free or below market value services or goods to physicians. Details here: Hospital Without Walls - Hospitals may provide and bill for services provided in off campus locations including hotels, office buildings, community facilities, tents, etc. ASCs and free-standing Emergency Departments can temporarily enroll as a hospital and provide hospital care and bill for it, or can allow a hospital to use their facilities. Advance Payments - CMS is allowing providers including physicians and hospitals to apply for an advance on future payments to be provided with no interest for the first 7 months. This is complex and not “free money” and careful consideration must be used. This is separate from the CARES Act which has money for hospitals and providers which is “free” but details are not yet known how or to whom that will be distributed. Medicare Advantage - CMS has provided CMS many flexibilities but it is up to each plan to decide what rules will be relaxed. In some cases, such as New York, the state has mandated waiving prior authorization for admissions and post-acute care. But that does not exempt these from post-service review or denial. Cigna, United Healthcare, and Aetna to date have waived prior authorization for SNF, IRF, and LTACH. Coding and Billing - Coding and Billing- New ICD-10 and CPT codes have been established for COVID-19. CMS has designated that the DRG payment to a hospital for any patient with a diagnosis of COVID-19 will be increased by 20%. The 2% federal sequestration is temporarily stopped. As I noted, there is much more detail and many more items waived in the documents from CMS. Remember that any actions you take should be done in consultation with your compliance and legal teams. |