March 31st Newsletter

March 31, 2020

Federal Update

CMS Lifts Practitioner and Site Restrictions, Waives Oversight Requirements, and Expands Telehealth

On March 30th, CMS issued a wide-ranging set of temporary regulatory waivers offering new flexibilities in response to COVID-19. The waivers pertain mostly to Medicare rules, with some Medicaid components, and will go into effect nationwide immediately and last for the duration of the emergency declaration. Major provisions include:

Telehealth Expansion

  • CMS will now allow for more than 80 additional services to be furnished via telehealth, including 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). Providers can bill for telehealth visits at the same rate as in-person visits. The complete list of telehealth services payable under the Medicare Physician Fee Schedule can be downloaded here.
  • Providers can provide audio-only evaluation services using CPT codes 99441-99443 (medical practitioners) and 98966-98968 (behavioral health and therapists).
  • The restriction that virtual check-in services and online e-visits must be provided to established patients has been lifted (i.e., providers may serve new patients as well). HHS will not conduct audits to ensure that any prior relationship existed for claims submitted during the COVID-19 public health emergency.
  • Telehealth visits are allowed to fulfill many face-to-face visit requirements for clinicians to see their patients in inpatient rehabilitation facility, hospice and home health settings.
  • CMS made it clear that clinicians can provide remote patient monitoring services to patients with acute and chronic conditions, and can be provided for patients with only one disease.
  • In addition, CMS is allowing physicians to provide direct supervision of clinical staff using virtual technologies when appropriate, instead of requiring in-person presence.

Hospitals

  • Hospitals may use non-hospital buildings and spaces for patient care and quarantine sites.
  • CMS will reimburse for COVID-19 testing when performed at the patient’s home or in other community-based settings outside of the hospital. It will also allow hospital emergency departments to test and screen patients for COVID-19 at drive-through and off-campus test sites. CMS will review waivers for Medical Screening Examinations at offsite alternate screening locations not owned or operated by a hospital, and therefore not subject to the Emergency Medical Labor and Treatment Act (EMTALA), on a case-by-case basis.
  • During the public health emergency, ambulances can transport patients to a wider range of locations when other transportation is not medically appropriate.
  • Physician-owned hospitals can temporarily increase the number of their licensed beds, operating rooms, and procedure rooms.
  • Emergency departments of hospitals can use telehealth services to assess patients to determine the most appropriate site of care.
  • CMS is waiving all the requirements and subparts at 42 CFR §482.43(c) related to post-acute care services.
  • CMS is waiving certain requirements under 42 CFR §482.1(a)(3) and 42 CFR §482.30, which includes the requirement that hospitals participating in Medicare and Medicaid must have a utilization review plan.

Workforce Flexibility

  • CMS is allowing physician assistants (PA) and nurse practitioners (NP) to perform services that may have previously required a physician’s order. In particular, in the Medicaid program, NPs and PAs may order home health services.
  • CMS is waiving the requirements that a certified registered nurse anesthetist (CRNA) is under the supervision of a physician. This waiver applies to hospitals, Critical Access Hospitals, and Ambulatory Surgical Centers (ASCs).
  • CMS is issuing a blanket waiver to allow hospitals to provide benefits and support to their medical staffs, such as multiple daily meals, laundry service for personal clothing, or child care services.
  • 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.

Oversight Waivers

  • CMS is temporarily eliminating certain paperwork requirements.
  • Medicare will now cover respiratory-related devices and equipment for any medical reason determined by clinicians, including home oxygen, continuous positive airway pressure for obstructive sleep apnea, and ventilators for home use.
  • During the public health emergency, hospitals will not be 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 following discharge from a hospital. CMS will also waive requirements for the form and content of the medical record and other record retention requirements.
  • CMS is providing temporary relief from many audit and reporting requirements by extending reporting deadlines and suspending documentation requests.

Additionally, CMS announced in the press release that it will allow local ambulatory surgery centers (ASCs) to contract with local healthcare systems to provide services typically provided by hospitals, such as cancer procedures, trauma surgeries and other essential surgeries. Alternatively, ASCs may enroll and bill as hospitals during the emergency declaration.

CMS has also issued blanket waivers of sanctions under the Physician Self-Referral Law, or the “Stark Law,” and will pay claims for designated health services that would otherwise violate the Stark Law. The blanket waivers may be used without notifying CMS. 

A summary of the waivers is available here, and the interim final rule is available here.

 

U.S. Public Health Service Releases Federal Guidelines on Ventilator Splitting

On March 31st, the U.S. Public Health Service Commissioned Corps wrote an open letter to health care workers with technical guidance on how ventilators can be split for two patients who are both either infected with or free of COVID-19. The guidelines emphasize that the procedure should only be considered as an absolute last resort and acknowledge that the efficacy and safety of the strategy is unknown because it has only been tested in controlled, experimental models using test lungs or animals for brief periods.

The open letter is available here.

 

State Update

Governor Cuomo Discusses Central Coordinating Team, Efforts to Obtain Medical Supplies and Volunteers

Today (March 31st), Governor Cuomo held a press conference (available here) during which he discussed efforts to develop a statewide public-private hospital plan to combat COVID-19. As part of this plan, the New York State Department of Health (DOH) will work with downstate health care systems, the Greater New York Hospital Association (GNYHA), and the Healthcare Association of New York State (HANYS) to create a command center that will share information about supplies, staff, and other resources across hospitals. This central inventory system will ensure strategic and equitable purchasing and distribution of medical supplies across the State. The “Central Coordinating Team” will also organize a shift of upstate health care practitioners downstate to assist with staffing shortages, establish intensive care unit (ICU) and COVID-19 case thresholds for public and private hospitals to balance the load, and help hospitals that have reached or exceeded capacity transfer patients to hospitals that are not as full, including sending non-COVID-19 patients to the USNS Comfort.

The Governor also announced that the number of retirees and other health care personnel that have signed up to join the surge workforce has increased to over 78,000. The State is now working to conduct background checks and sort the volunteers by region and expertise across the State. An online portal, to be launched today, will coordinate the volunteers with the hospitals in need. The State is prioritizing in-State workers residing downstate who are closer to the facilities, followed by upstate workers and out of State volunteers.

 

New York State DOH Suspends Concurrent Review for Children’s Waiver Services

Today, DOH sent a notice to all mainstream Medicaid managed care plans and HIV special needs plans regarding services for individuals participating in the 1915(c) Children’s Waiver. Due to the recently passed Families First Coronavirus Response Act and existing federal regulations requiring that individuals covered by Medicaid as of March 18th will not lose Medicaid coverage or change to an eligibility group with fewer benefits, the State is preventing plans from conducting concurrent review processes as scheduled until further notice. Further, children/youth should not be discharged from the Children’s Waiver unless by choice or because they move out of New York State. This will guarantee continued participation in the Children’s Waiver and access to associated services during this period to ensure appropriate continuity of care.

Question may be submitted to BH.Transition@health.ny.gov.