On March 30, 2020, the United States Department of Health and Human Services (HHS) exercised its authority under Section 1135 of the Social Security Act (SSA) granting providers and suppliers a series of blanket waivers to give them flexibility to respond to the COVID-19 pandemic.

Long Term Care Facilities and (Skilled) Nursing Facilities 

Patients Over Paperwork

• Waivers of certain physical environment requirements—i.e., non-skilled nursing facility (SNF) buildings can be temporarily certified as SNF in the event that there is a need for isolation processes for positive residents. Rooms not normally used as resident rooms within the facility may be used to accommodate beds and residents in emergency and surge capacity.
• Transfer of COVID patients: Residents can be transferred from a facility to a separate facility solely for the purposes of cohorting and separating residents with and without COVID.
• Waiver of the 3 day prior hospitalization for coverage of a SNF stay.
• Time work requirements are waived regarding reporting of minimum data set, requirements for submitting staffing data through the payroll-based journal (PBJ) system.
• Waiver of pre-admission screening and annual resident review.
• Waiver of the requirement for in-person resident groups.

Cost Reporting

• Delay the filing of the fiscal year end (FYE) Oct. 31, 2019 and FYE Nov. 30, 2019 to June 30, 2020; FYE Dec. 31, 2019 cost reports will be due July 31, 2020.

Workforce

• To prevent staffing shortage, nurse aid training and certification is waived past the four month hiring requirement; however, the requirement to demonstrate competency in skills and techniques necessary to care for resident needs is not waived. 

Telehealth

• Physician and non-physician practitioners are no longer required to perform in-person visits but may conduct them via telehealth options when appropriate

Teaching Hospitals, Teaching Physicians, and Medical Residents

• With respect to teaching physician supervision, the Centers for Medicare and Medicaid Services (CMS) is waiving the “physical presence” requirement in many instances, now permitting teaching physicians to provide services with medical residents virtually through audio/visual real-time communications technology. Note, however, that this new rule does not apply to surgical, high-risk, interventional, or other complex procedures, services performed through an endoscope or anesthesia services. 
• Additionally, for direct graduate medical education (DGME) and indirect medical education (IME) payments, a hospital that is paying the medical resident’s salary and fringe benefits for the time that the resident is at home or in a patient’s home, but performing duties within the scope of the approved residency program and meets appropriate physician supervision requirements, can claim that resident for IME and DGME purposes. This allows medical residents to perform their duties in alternate locations not generally allowed, including their home or a patient’s home so long as it meets appropriate physician supervision requirements.

Medicare Advantage and Part D Plans

• CMS is providing flexibility to waive cost sharing and to provide expanded telehealth benefits through Medicare Advantage plans (MA Plans).  MA Plans may waive or reduce cost-sharing for beneficiaries affected by the pandemic, including waiving or reducing cost-sharing for COVID-19 testing. CMS is also exercising enforcement discretion to allow MA Plans to expand telehealth services beyond those included in their approved 2020 benefits.
• Additionally, Part D plan sponsors may relax their “refill-too-soon” prohibitions if circumstances are reasonably expected to result in a disruption in access to drugs. Part D sponsors may also allow an affected enrollee to obtain the maximum extended day supply available under their plan, if requested and available.  Moreover, in situations when a disaster or emergency makes it difficult for enrollees to get to a retail pharmacy, or enrollees are actually prohibited from going to a retail pharmacy (e.g., in a “stay home” government order quarantine situation), Part D sponsors are permitted to voluntarily relax any plan-imposed policies that may discourage certain methods of mail or home delivery.
• CMS is also pausing much of its standard medical review activities, including prior authorization and other reviews that require CMS to ask providers for documentation to reduce paperwork and allow the organizations to focus on patient care.

Hospice

• Hospice providers can provide services to a Medicare patient receiving home care through telehealth.
• Face-to-face encounters for purposes of patient re-certification can now be conducted via telehealth.
• Waiver of the requirement that hospices use volunteers for at least 5% of patient care hours.
• Waiver of the requirement that a nurse conduct an onsite visit every two weeks.
• Waiver of certain requirements related to updating of the comprehensive assessment of patients.

Clinical Labs and DMEPOS Suppliers

• Labs
  • Medicare will pay for home COVID-19 testing including testing conducted at nursing homes.
  • CMS is exercising discretion in regard to allowing pathologists to review slides remotely, has expedited clinical laboratory improvement amendment certificate review and its application process to expedite testing for COVID-19, and declared that campus laboratories may hold a single certificate for sites located at the same address.

• Durable Medical Equipment
  • CMS has waived certain requirements for replacements of durable medical equipment prosthetics, orthotics, and supplies (DMEPOS), only requiring suppliers to include a narrative description in their claim explaining the need for a replacement.
  • CMS is pausing the national Medicare Prior Authorization program for certain DMEPOS items, not requiring accreditation for newly enrolling DMEPOS and extending expiring supplier accreditation to a 90-day period.
  • CMS is also waiving signature and proof of delivery requirements for Part B drugs and durable medical equipment where a signature is difficult to obtain.

Physician and Non-Physician Practitioners

• Medicare Telehealth
  • Beneficiaries can receive telehealth services wherever they are located, regardless of whether they are new or established patients. Virtual check-ins and remote patient monitoring can also be provided to new and established patients.
  • Providers may waive Medicare co-pays for telehealth services provided to beneficiaries enrolled in Original Medicare.
  • A broad array of additional services may be provided via telehealth, including initial visits for nursing home residents.
  • Providers may evaluate patients by telephone (audio only).
  • Consent can be obtained at the same time the telehealth services are furnished, and does not necessarily have to be obtained beforehand.

• Expanding the Workforce
  • Physician supervision requirements have been relaxed and for services requiring direct supervision, such supervision may be provided using real-time audio/video technology.
  • CMS waived the requirement that Medicare patients in the hospital be under the care of a physician. Now, hospitals can utilize other practitioners, such as nurse practitioners or physician’s assistants instead.
  • CMS is allowing physicians to seek temporary waiver of the requirement that physicians and NPPs be licensed in the state where they provide services.

• Patients Over Paperwork/Stark Law Waivers
  • CMS is permitting certain referrals and the submission of related claims that would otherwise violate the Stark Law. These include:
    • Allowing hospitals and other health care providers to pay above or below fair market value to rent equipment or receive services from physicians (or vice versa).
    • Health care providers financially supporting each other to ensure the continuity of operations. For example, a physician owner of a hospital could make a loan to the hospital charging an interest rate below fair market value so the hospital can make payroll.
    • Hospitals providing benefits to medical staff, such as meals, laundry service or child care while the physicians are providing services that benefit the hospital and its patients.
    • Allowing the provision of certain items and services solely related to COVID-19 purposes, even when doing so would exceed the annual non-monetary compensation cap. For example, a nursing facility could provide free continuing medical education to physicians regarding the latest protocols for COVID-19 patients, or a hospital could provide housing for a physician exposed to coronavirus while working at the hospital.
    • Loosening restrictions on when a group practice can furnish designated health services in a patient’s home.
    • Permitting group practices to furnish MRIs, CT scans, or clinical laboratory services from mobile locations.

Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.