CMS Makes Regulatory Changes to Assist the U.S. Health Care System Address the COVID-19 Patient Surge

In a press release issued on March 30, 2020, the Centers for Medicare and Medicaid Services (CMS) issued temporary blanket waivers aimed at providing flexibility to hospitals and health care systems to respond to COVID-19 patient surges and lessening the administrative burdens on providers so they may focus on patient care. These temporary waivers are in effect for the duration of the emergency declaration issued by the President.

The temporary waivers now permit the following:
 

• Surgery centers that have cancelled elective surgeries may contact local health care systems to provide hospital services or they may enroll and bill as hospitals during the emergency declaration period if the surgery center is consistent with the state's emergency preparedness or pandemic plan.
• Non-hospital buildings and spaces may be used for patient care and as quarantine sites as long as the location is approved by the state and ensures the comfort and safety of the patients and staff.
• Hospitals, laboratories and other entities may perform COVID-19 testing in homes and in other community-based locations outside of a hospital. 
• Hospital emergency departments may test and screen patients for COVID-19 infection at drive-through and off-campus testing sites.
• Ambulances may transport patients to a wider range of locations when other transportation is not medically appropriate. These locations include community mental health centers, FQHCs, physician offices, urgent care facilities, surgery centers and locations furnishing dialysis services when an ESRD facility is not available.
• Physician-owned hospitals may temporarily increase their number of licensed beds, operating rooms and procedure rooms to accommodate patient surge.
• Hospitals may bill for the services provided outside of their physical locations, including at locations used as alternate treatment and testing sites and for services provided through telehealth services.
• Hospitals may temporarily employ local private practice physicians, nurses and staff and those licensed in other states without violating Medicare rules. These workers can provide functions for which they are qualified and licensed.
• Hospitals may use other practitioners, such a physician assistants and nurse practitioners, to the fullest extent possible in accordance with the state's emergency preparedness or pandemic plan.
• The requirement for certified registered nurse anesthetists to be under the supervision of a physician is waived in order to expand the capacity of both physicians and CRNAs.
• Hospitals may provide benefits and support to its medical staffs not permitted previously—such as multiple daily meals, laundry services and childcare services—while the physicians and other staff are providing services at the hospital that benefit the hospital and its patients.
• Health care providers, such as suppliers, hospitals and clinicians, may temporarily enroll in Medicare in order to provide services during the public health emergency.
• Hospitals are not required to have written policies on processes and visitation of patient who are in COVID-19 isolation.
• Some audits and reporting requirements are suspended and reporting deadlines extended for providers and health care facilities.
• Providers may bill Medicare for additional services that are provided by telehealth services to Medicare beneficiaries. In addition, the use of interactive apps with audio and video capabilities by individuals to visit with their clinicians is permitted and providers can evaluate beneficiaries who have audio-only phones.
• Providers may bill Medicare for telehealth visits at the same rate as in-person visits.  Telehealth may be used for a variety of visits, including initial nursing facility and discharge visits, emergency department visits, home visits and therapy visits.
• Physicians may supervise their clinical staff using virtual technologies instead of in-person supervision when appropriate.

For additional information or to view the CMS press release, please visit https://www.cms.gov/newsroom/fact-sheets/additional-backgroundsweeping-regulatory-changes-help-us-healthcare-system-address-covid-19-patient. In addition, Ice Miller attorneys are available to answer your questions. Contact Taryn Stone at Taryn.Stone@icemiller.com or Margaret Emmert at Margaret.Emmert@icemiller.com.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.