CMS Waivers Under COVID-19: An Overview of Compliance Considerations – Part 3

May 6, 2020Marti Arvin

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The Center for Medicare and Medicaid Services (CMS) has issued a number of waivers of certain regulatory obligations for multiple segments of the healthcare industry during the public health emergency (PHE). These waivers modify the compliance obligations in a number of ways. This article will focus on some of the waivers issued for teaching hospitals, teaching physicians, medical residents, and hospitals as part two of a three-part series regarding the waivers for this industry segment.

Waivers Related to the Type of Bed for Patient Care

There are a number of types of hospitals and hospital licensed beds. Hospital might be considered acute care, rehabilitation, or psychiatric. For each of these types of hospitals, the requirements vary. A hospital may also have beds specifically licensed as acute care, inpatient psychiatric, or inpatient rehabilitation. CMS has issued waivers to permit more flexibility to use the different types of bed statuses.

Under the waivers, hospitals are permitted to provide services to acute care inpatients in locations that might otherwise be excluded from this use. If an organization decides to do this there must be an assessment of the appropriateness of the space for an acute care inpatient. Waivers have also been issued to permit the care of a psychiatric inpatient in an acute care bed. If this occurs there must be an assessment and assurance that bed is appropriate for a psychiatric inpatient and that the staffing and conditions are conductive for such patients.

There should also be an assessment to help ensure the patient is not a risk for harm to self or others. A similar waiver was issued allowing the use of acute care inpatient beds for the care of an inpatient rehabilitation patient. If an organization decides to house an inpatient rehabilitation patient in an acute care unit there should be an assessment that the new location is appropriate for such a patient. The facility must also ensure that the patient will continue to receive intensive rehabilitative services.

If a patient is cared for in a bed that is not licensed for the type of care they are receiving the care is still billed under the CMS fee schedule that would have been used had the patient received care in a bed licensed for their specific care. The waiver indicates that the medical record should be annotated to reflect that the patient was cared for in a space or bed that did not meet the regulations as a result of capacity issues.

Compliance Consideration for Waivers Related to the Type of Bed for Patient Care

The organization should have a process to ensure there is a documented assessment that demonstrates the evaluation of the appropriateness of the care location based on the type of patient in that hospital unit. The compliance office may want to audit these types of bed usages after the PHE is lifted to determine if the medical record was appropriately annotated and/or an audit to ensure inpatient rehabilitation patients continue to receive intensive therapy while receiving care in an acute care unit.

Waivers Regarding the Critical Access Hospitals

Under the Medicare regulations, a critical access hospital (CAH) is limited 25 beds. There is also a limit on the length of stay (LOS) for patients admitted to a CAH. CAH patient in are limited to a LOS of not more than 96 hours. CAHs are also required to be in rural area and there are proximity restrictions in relation to other hospitals. Under the PHE, CMS issued waivers that allow a CAH to expand beyond the standard 25 bed limit. CAHs may also allow patients to say beyond the standard LOS of 96 hours. If the CAH needs to expand to a temporary site that location is not required to be in a rural location and the proximity restrictions related to other hospitals is lifted.

Compliance Consideration for CAH Waivers

Many CAHs do not routinely operate at the full capacity of 25 beds. If, during the PHE, a CAH expands beyond its normal 25 bed limitation there should be process for ensuring the CAH is meeting appropriate staffing needs and other COPs for the additional beds. The compliance professional may wish to perform an audit of the bed count and LOS for inpatients at their CAH once the PHE is lifted. Evaluating compliance with the staffing obligations and other COPs as part of the audit should also be considered.

Waivers Regarding Telemedicine

CynergistTek has published blogs and podcasts associated with the changes to how telemedicine services can be provided. CMS provided additional waivers regarding telemedicine. The CMS waiver lifted the requirement that there be a written agreement between originating site and the distant site. CMS also expanded the types of providers who can provide telemedicine services during the PHE. The updated waiver permits anyone who can bill Medicare for their professional services to provide services via telemedicine. This would include physical therapist (PT), occupational therapist (OT), speech language pathologists (SLP), and others.

CMS as also modified the types of telemedicine services that can be provided through an audio-only interaction. This includes some evaluation and management, behavioral health, and educational services. The list of services that can be provided through telemedicine and those that can specifically be provided through an audio-only interaction can be found on the CMS website.

CMS as also clarified how a provider, performing a telemedicine service from their home should submit claims for those services. The provider's home address might not be on their Medicare enrollment. To ensure the claim is not rejected because of a mismatched address, the provider is directed to put the address of the location where the services could have been provided had the PHE not existed. This will often be the physician's office address.

Compliance Consideration for Telemedicine Waivers

If a facility initiates telemedicine services with a new originating or distant site during the PHE, compliance may wish to ensure that if telemedicine is continued with the location after the PHE is lifted the appropriate agreement has been executed. Since PTs, OTs, SLP, and others are not familiar with providing telemedicine services, the organization should consider providing them with training to ensure the documentation of the encounter is part of the patient's medical record. Once the PHE is lifted, providers should be made aware they can no longer provide services via telemedicine and/or certain services provided through audio-only communications require real-time audio-visual communication technology.

This is not an all-inclusive list of the compliance considerations for the waivers discussed thus far. These are just some of the things compliance professionals may wish to think about. This is a highly complex time with changes occurring frequently. There are a number of additional waivers that CMS has issued for the healthcare industry. Most of the remaining waivers that have been issued for hospitals and more of the compliance considerations associated with them will be addressed in the next segments of this blog post series.

Additional Resources

• Listen to my podcast on the topic, CMS Waivers For Hospitals Under COVID-19: An overview of Compliance Considerations - Part II
• Download our 30/60/90 day checklist, "Planning for Incident Response During the COVID-19 Crisis: Tales on Tackling the Security Debit."
• For a full repository of COVID-19 crisis resources, visit our CTEK COVID-19 Communications page for news, articles, podcasts, and more.
• Contact us with any questions regarding the regulatory changes during the COVID-19 crisis.