Health Care Law Blog

Provider Requirements Waived by CMS due to COVID-19

In response to COVID-19, the Centers for Medicare and Medicaid Services has issued blanket waivers of certain requirements so that hospitals and health care systems have the flexibility needed to manage potential surges. The waiver of these requirements is retroactively effective as of March 1, 2020 and lasts until the end of the emergency declaration for COVID-19.

The four goals of the waivers are:

• to increase hospital capacity;
• to expand the healthcare workforce;
• to prioritize patients over paperwork; and
• to encourage telemedicine.

Under these waivers, healthcare systems and hospitals may temporarily provide services in locations that are outside of their existing walls. This waiver attempts to increase the capacity available for treating COVID-19 patients during a surge. Outside facilities, such as ambulatory surgical centers, inpatient rehabilitation hospitals, hotels, dormitories, etc. may be used as “hospitals without walls.” Each location used must be approved by the state and ensure that the safety and comfort for patients and staff are sufficiently addressed. Certain sites may be used to exclusively test and screen for COVID-19 in a safe environment. Any sanctions for prohibited conduct under the Physician Self-Referral (“Stark Law”) are temporarily waived. This waiver allows doctor-owned hospitals to increase the number of beds available and transfer patients without incurring sanctions.

In order to expand the healthcare workforce, Medicare patients are not currently required to be under the care of a physician. This allows for treatment by additional practitioners. This waiver works simultaneously with states expanding the scope of practice for certain licensed health professionals, as in Executive Order 2020-30 in Michigan. Healthcare practitioners may provide services in a state other than a state in which they are licensed if they are enrolled in Medicare, possess a valid license to practice, are furnishing services in a state in which the emergency is occurring in order to contribute relief efforts, and are not affirmatively excluded from practice in the state.

As part of the push to prioritize patient care over paperwork, discharge planning requirements for hospitals are temporarily reduced. A hospital must still ensure a patient is discharged to an appropriate setting with the necessary medical information and goals of care, but all requirements are waived relating to post-acute care services in order to expedite the discharge of patients. Similarly, the requirement for nursing staff to develop and keep current a nursing care plan for each patient is temporarily waived, to ensure nurses are spending their time providing critical care to patients. Hospitals do not currently need to designate in writing the certain people authorized to perform respiratory care procedures and the amount of supervision required.

Telehealth services are encouraged, particularly so that COVID-19 patients can remain fully isolated. Telehealth services may be used for Medicare visits that typically occur in person. Virtual check-ins may be used for brief communication between patients and their doctors to avoid necessary trips to a healthcare facility. Virtual check-ins and “E-visits” are paid for by Medicare. Through the waiver, more than 80 additional services paid for by CMS will be provided through telehealth to limit face-to-face contact.

Additionally, there are a number of waivers of restrictions that apply to long-term care facilities and skilled nursing facilities. For example, a patient entering a skilled nursing facility does not currently need to have a prior qualifying hospital stay of three days. A non-skilled nursing facility building may be used by a skilled nursing facility if the need arises for isolation due to COVID-19 positive residents. Social distancing and in-person meetings are limited to comply with the current recommendations.

CMS has published a fact sheet and summary on these waivers: 

• https://www.cms.gov/newsroom/fact-sheets/additional-backgroundsweeping-regulatory-changes-help-us-healthcare-system-address-covid-19-patient
• https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-waivers.pdf

Contact a member of Foster Swift’s health care group with questions or for more information on how the requirements temporarily waived by CMS impact a facility:

Jennifer Van Regenmorter...616.796.2502...jvanregenmorter@fosterswift.com

Caroline Renner...616.726.2211...crenner@fosterswift.com

Categories: Health Care Reform, Hospitals, Medicare/Medicaid