Health Law Monitor

CMS Expands Blanket Waivers Available to Ease Burdens on the Health Care System 

April 2, 2020

By: Lindsay D. Petrosky

As the nation’s health care system struggles to manage the influx of COVID-19 patients, the government has taken aggressive action to expand blanket waivers and new rules to ease the regulatory burdens on the system. The Centers for Medicare & Medicaid Services (CMS) announced the waivers on March 30, 2020, with a retroactive effective date of March 1, 2020, and the waivers will continue until the end of the emergency declaration. The blanket waivers apply nationally and without further action by providers.

The blanket waivers complement prior efforts to ease the regulatory burden on providers during the pandemic and focus on empowering hospitals and other providers to rapidly expand treatment capacity to care for patients infected with COVID-19.  CMS’s actions are intended to empower local hospitals and health care systems to establish additional treatment locations; expand access to telehealth; remove physician self-referral (Stark Law) barriers to the COVID-19 response efforts; increase capacity of the health care workforce; and eliminate certain administrative requirements, which include limiting some of the paperwork obligations on providers.

CMS has issued provider-specific fact sheets to outline and describe the waivers available for various provider categories, including hospitals, home health agencies, skilled nursing facilities, hospices, end-stage renal disease facilities, laboratories, and physicians.  
Some of the highlights specific to the hospital waivers are summarized below.

Expanding Treatment Locations

CMS has issued waivers to expand the capacity of the health care system by allowing hospitals to provide services in additional locations during the emergency, including the following:

• EMTALA¹  waivers permitting hospitals, critical access hospitals (CAHs), and inpatient psychiatric facilities to screen patients at an offsite location, so long as it is not inconsistent with a state’s emergency preparedness or pandemic plan;
• Physical Environment requirements² waivers permitting hospitals to use non-hospital buildings for patient care and quarantine sites, but only to the extent such locations are “approved by the state”;
• Provider-based rules³ waivers to allow hospitals to establish and operate as a part of the hospital any location meeting the conditions of participation as hospital locations, including changing the status of existing provider-based department locations; and
• Surge facility waivers, which reduce the burdens at expanded alternative locations referred to in the waiver as “surge capacity sites” and “surge facilities” particularly the rural area and off-campus requirements for CAHs,⁴ so long as it is not inconsistent with a state’s emergency preparedness or pandemic plan;

Providers relying on the above waivers to expand their locations and capacity should verify whether any approval or other action would be required by their state licensing body before proceeding.

Discharge Planning

CMS has waived certain discharge planning requirements, including:

• Requirements to provide patients with information⁵ related to the quality and resource use available at post-acute care providers; and 
• Requirements to provide patients with a list of all post-acute care providers available to the patient, and inform the patient of their freedom of choice, and identify any home health agency or skilled-nursing facility in which the hospital maintains a disclosable financial interest.⁶

 

However, all patients must still be discharged to an appropriate setting with the necessary medical information and goals of care.

Medical Staff and Workforce Issues

CMS has waived numerous requirements related to expanding the hospital workforce to the extent they are not inconsistent with a state’s emergency preparedness or pandemic plan:

• Requirements to allow physicians whose privileges are about to expire to continue practicing at the hospital and for new physicians to practice before receiving full medical staff/governing body approval⁷;
• Requirements that Medicare patients be under the care of a physician⁸ ;
• Requirements that a certified registered nurse anesthetist is under the supervision of a physician, such supervision will be left to the discretion of the hospital and may be consistent with state law⁹ ; and 
• Requirements that hospitals designate in writing the personnel qualified to perform specific respiratory care procedures and the amount of supervision required for personnel to perform such procedures.¹⁰

Expanding Telehealth

CMS has also taken steps to promote the expansion of telehealth services through the issuance of an Interim Final Rule on March 30, 2020, which includes the following:

• Pre-existing relationship requirement has been waived; 
• Allowing evaluation and management services by audio-only phones;
• Allowing practitioners to deliver telehealth services from their home, without reporting their home address on their Medicare enrollment, while continuing to bill from their currently enrolled location; and
• Paying for more than 80 additional services when furnished via telehealth, including emergency department visits, nursing facility and discharge visits, home visits and therapy services.

Under the Interim Final Rule, practitioners are permitted to make “virtual check-ins” and “e-visits” available to new as well as established patients, which will not be treated as telehealth. To bill for the services outlined in the rule, CMS is permitting providers to access telephone only CPT codes, which previously could not be billed to. Providers will also need to be aware of site-of-service codes when billing for telehealth services, even when the patient originates the call.

The above summary is not a comprehensive outline of all available waivers. Hospitals should review the more detailed CMS guidance and hospital-specific fact sheets for a comprehensive list of available waivers. Hospitals should also review our prior detailed summaries of blanket waivers under the Stark Law and EMTALA.

 

¹  42 U.S.C. 1395dd(a). Hospitals and emergency departments must still comply with other EMTALA requirements which include providing necessary stabilizing treatment and restricting transfers until stabilized. 
²  42 C.F.R. 482.41.
³  42 C.F.R. 413.65.
⁴  42 C.F.R. 485.610(b) and (e).
⁵  42 C.F.R. 482.42(a)(8), 42 C.F.R. 482.61(e), and 42 C.F.R. 485.642(a)(8).
⁶  42 C.F.R. 482.43(c).
⁷  42 C.F.R. 482.22(a)(1)-(4).
⁸  42 C.F.R. 482.12(c).
⁹  42 C.F.R. 482.52(a)(5), 42 C.F.R. 485.639(c)(2), and 42 C.F.R. 416.42(b)(2).
¹⁰  42 C.F.R. 482.57(b).