By John H. Fisher II
May 1, 2020
The Centers for Medicare & Medicaid Services (CMS) has issued another set of regulatory changes and waivers intended to deliver expanded care to the nation’s seniors, and provide flexibility to the healthcare system during the course of emergence from the Coronavirus pandemic. The new waivers are aimed at some of the most prominent issues to emerge from the pandemic; increasing the opportunity for Medicare beneficiaries to obtain testing for the COVID-19 virus and expanding the delivery of health care via telehealth technology as a means of providing needed care in a manner that reduces the risk of transmission of the virus. The new waivers were released by CMS April 30, 2020 and go into effect immediately. They are effective through the end of the COVID-19 pandemic.
Just some of the new waivers in the second wave include:
Further Telehealth Expansion. Telehealth is likely to emerge ahead by the end of the pandemic. Telehealth has expanded greatly, just in the first month of the pandemic. The second waivers reflect a further expansion in the availability of telehealth services. CMS seems to be trying to remove, at least temporarily, many of the restrictions that have served to curtail the growth of telehealth services over the years. CMS has directed a significant expansion of telehealth services and has permitted doctors and other providers to deliver a wider range of care to Medicare beneficiaries in their homes. As a result, beneficiaries don’t have to travel to a healthcare facility and risk exposure involving the COVID-19 virus.
Expanded Providers Who Can Use Telehealth. For the duration of the COVID-19 emergency, CMS is waiving limitations on the types of clinical practitioners that can furnish Medicare telehealth services. Prior to this change, only doctors, nurse practitioners, physician assistants, and certain others could deliver telehealth services. Now, other practitioners are able to provide telehealth services, including physical therapists, occupational therapists, and speech language pathologists.
Hospital-based Providers Use of Telehealth. Hospitals may bill for services furnished remotely using telehealth by hospital-based practitioners to Medicare patients registered as hospital outpatients, including when the patient is at home and the home is serving as a temporary provider-based department of the hospital. Examples of such services include counseling and educational services as well as therapy services. This change expands the types of healthcare providers that can provide services using telehealth technology.
Expansion of Audio-Only Telephone Sessions. CMS previously announced that Medicare would pay for certain services conducted by audio-only telephone between beneficiaries and their doctors and other clinicians. Now, CMS is broadening that list to include many behavioral health and patient education services. CMS is also increasing payments for these telephone visits to match payments for similar office and outpatient visits. This would increase payments for these services from a range of about $14-$41 to about $46-$110. The payments are retroactive to March 1, 2020.
Until now, CMS only added new services to the list of Medicare services that may be furnished via telehealth using its rulemaking process. CMS is changing its process during the pandemic and will add new telehealth services on a sub-regulatory basis, considering requests by practitioners now learning to use telehealth as broadly as possible. This will speed up the process of adding services.
As mandated by the CARES Act, CMS is paying for Medicare telehealth services provided by rural health clinics and federally qualified health clinics. Previously, these clinics could not be paid to provide telehealth expertise as “distant sites.” Now, Medicare beneficiaries located in rural and other medically underserved areas will have more options to access care from their home without having to travel
Since some Medicare beneficiaries don’t have access to interactive audio-video technology that is required for Medicare telehealth services, or choose not to use it even if offered by their practitioner, CMS is waiving the video requirement for certain telephone evaluation and management services, and adding them to the list of Medicare telehealth services. As a result, Medicare beneficiaries will be able to use an audio-only telephone to get these services.
Making Tests More Available. The importance of testing to a healthy recovery from the pandemic is clear to all. The additional waivers include several waivers that are intended to enhance the availability of diagnostic and antibody testing for COVID-19.
Expanded Providers Can Order Tests. Under the current circumstances it makes little sense to limit the providers who can order the diagnostic test to only physicians. This is reflected in the new waivers. During the period of the pandemic, any health care provider is permitted to order a COVID-19 test and certain other laboratory tests normally related to the diagnosis of COVID-19. Physician orders are not required for COVID-19 tests during the pendency of the waiver. This is consistent with the need to expand the population base that has been tested by reducing barriers to obtaining testing.
Point of Care Testing. Changes were also implemented to enhance the ability for beneficiaries to obtain COVID-19 testing at pharmacy operated testing sites, such as a “drive-up” testing center. This is intended to expand the availability of “point-of-care” testing. This is much more in line with the need to expand testing of the population quickly in order to enhance the speed of the possible recovery.
Reimbursement for Collecting Samples. Building on previous actions to pay labs when technicians collect samples, CMS is now saying that it will pay hospitals and practitioners to assess beneficiaries and collect laboratory samples for COVID-19 testing. Separate payment will be made when the COVID-19 test is the only service received.
Reimbursement for Antibody Testing. During the rest of the pandemic, CMS will be paying for antibody testing to assist in determining whether an individual has an immune response to the virus that could indicate immunity for some period of time. This information is important to the safe reopening of the country.
Increase Hospital Capacity – CMS Hospitals Without Walls. The second waivers include provisions to permit relatively easy temporary bed expansion and temporary transition of certain facilities to create needed capacity. The new waivers contain an expansion of the Hospitals Without Walls initiative, which includes efforts by CMS to allow hospitals to use temporary expansion sites to help meet patient needs during the COVID-19 pandemic. This initiative includes efforts to expand or enhance services to those who have been infected with the COVID-19 virus, establish temporary expansion facilities, and actions taken to relocate or move regular health services to other locations offsite.
OPPS Billing Rate Waiver. The Hospitals Without Walls initiative grants a temporary waiver permitting outpatient hospital departments to maintain higher reimbursement rates, even if they temporarily relocate the site of service off of the hospital campus. The waiver permits the service to continue to be billed under the higher Outpatient Prospective Payment System (OPPS) rates rather than under the lower rates under the Physician Fee Schedule. This removes reimbursement rate as a consideration when making decisions about temporary service relocation during the pandemic.
Waiver of Certain Payment Reductions. Certain hospital providers are permitted to expand the number of beds available for treatment of COVID-19 patients during the pandemic. This has potential application for teaching hospitals and hospital systems that might also operate one or more rural health centers, both who can be subject to payment reductions to some ancillary revenue sources indirectly as a result of the temporary bed expansion. The waiver solves the potential problem and permits a hospital to make bed expansion decisions neutral of reimbursement considerations.
Long-term Acute-care Hospital Transfers. Long-term acute-care hospitals can now accept any acute-care hospital patients and be paid at a higher Medicare payment rate, as mandated by the CARES Act. This will make better use during the pandemic of available beds and staffing in long-term acute-care hospitals. The waiver permits shifting of acute care patients to long-term acute-care hospitals where necessary to create capacity as a result of the pandemic.
Rehabilitation Hospital Overflow. A new waiver makes it easier for rehabilitation hospitals to take overflow from acute care hospitals. The rehab beds can be used for care that is consistent with the level of service offered. This may result in making more beds in the acute care facility available for COVID-19 related cases.
Surgery Center Privilege Renewals. Ambulatory surgery centers are permitted to delay the need to periodically reappraise medical staff privileges while the COVID-19 emergency declaration is in place. The intent is to potentially avoid lapses of care that might otherwise result from the expiration of surgery center privileges.
Services in Patient Homes. A new waiver temporarily permits reimbursement for partial hospitalization service in a patient’s home. Partial hospitalization services include things like individual psychotherapy, patient education, and group psychotherapy. Beneficiaries are normally required to make a clinic visit to receive these types of services. This helps free facility resources and reduces the risk of transmission by reducing the need for office visits.
Staff and Facility Availability. Recognition that there is a need to remove barriers and cut red tape inhibits hiring needed health care workers. There are also waivers aimed at reducing patient flow into provider facilities, particularly for vulnerable population segments. For example, one new waiver gives clinicians greater flexibility during the pandemic to allow more of their diabetic patients to monitor their glucose and adjust insulin doses at home. CMS is waiving enforcement of local coverage determinations that limit access to continuous monitoring to beneficiaries. The waiver will reduce the need for office visits for this group of high-risk patients.
Physical therapists are temporarily permitted to delegate maintenance therapy services to their physical and occupational therapy assistants in outpatient therapy settings. The intent is to free some of the burden on physical therapists and permit the therapist’s services to be allocated to other important services.
The new waivers recognize the CARES Act permits nurse practitioners, clinical nurse specialists, and physician assistants may now provide home health services during the COVID-19 pandemic. A physician’s order is not needed for many of the activities that normally require a physician’s order. The providers permitted to order home health services, establish plans of care, and certify eligibility have been temporarily expanded to make it easier for providers to reassign registered nurses to COVID-19 treatment and permit other staff to fill in for them in the home health setting. These temporary changes apply to Medicaid as well as Medicare.
Summary. CMS has shown itself to be real in its consideration of the waivers the health care industry needs to survive and emerge gracefully from the pandemic. The objectives are clear; mainly because CMS spells them out pretty clearly. CMS identifies its goals during the pandemic to include:
- To ensure that local hospitals and health systems have the capacity to handle COVID-19 patients through temporary expansion sites (also known as the CMS Hospital Without Walls initiative);
- To expand at-home and community-based testing to minimize transmission of COVID-19;
- To expand the healthcare workforce by removing barriers for physicians, nurses, and other clinicians to be readily hired from the local community or other states;
- To increase access to telehealth for Medicare patients so they can get care from their physicians and other clinicians while staying safely at home; and
- To put patients over paperwork by giving providers, healthcare facilities, Medicare Advantage and Part D plans, and states, temporary relief from many reporting and audit requirements so they can focus on patient care.
These goals seem to be well reflected in the recent waivers. Providers should continue to communicate their needs to CMS. So far, CMS has been good about integrating legitimate requests from providers into it waiver enactments.
The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.
© 2021 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.