By Mark Fitzgerald and Natalie Dobek

On Friday, the President declared the novel coronavirus (COVID-19) outbreak a national emergency under the National Emergencies Act.  This declaration allows the Department of Health and Human Services (HHS) Secretary Azar to waive certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule throughout the duration of this emergency under Section 1135 of the Social Security Act.

CMS published the following list of blanket waivers in response to the declaration:

Skilled Nursing Facilities

  • The requirement at Section 1812(f) of the Social Security Act for a 3-day prior hospitalization for coverage of a skilled nursing facility (SNF) stay.
  • The requirement at 42 CFR 483.20 on the time limit for assessing patients transferred to a SNF (i.e., the Minimum Data Set assessments and transmission to CMS).

Critical Access Hospitals

  • The requirements that Critical Access Hospitals limit the number of beds to 25, and that the length of stay be limited to 96 hours.

Housing Acute Care Patients In Excluded Distinct Part Unit

  • Allowing acute care hospitals to house acute care inpatients in excluded distinct part units, where the distinct part unit’s beds are appropriate for acute care inpatient.

Durable Medical Equipment

  • Where Durable Medical Equipment Prosthetics, Orthotics, and Supplies (DMEPOS) is lost, destroyed, irreparably damaged, or otherwise rendered unusable, contractors have the flexibility to waive replacements requirements such that the face-to-face requirement, a new physician’s order, and new medical necessity documentation are not required.

Care for Excluded Inpatient Psychiatric Unit Patients in the Acute Care Unit of a Hospital

  • Allowing acute care hospitals with excluded distinct part inpatient psychiatric units to relocate inpatients from the excluded distinct part psychiatric unit to an acute care bed and unit.

Care for Excluded Inpatient Rehabilitation Unit Patients in the Acute Care Unit of a Hospital

  • Allowing acute care hospitals with excluded distinct part inpatient rehabilitation units to relocate inpatients from the excluded distinct part rehabilitation unit to an acute care bed and unit.
  • Allowing IRFs to exclude patients from the hospital’s or unit’s inpatient population for purposes of calculating the applicable thresholds associated with the requirements to receive payment as an IRF (60 percent rule) if an IRF admits a patient solely to respond to the emergency and the patient’s medical record properly identifies the patient as such.

Supporting Care for Patients in Long-Term Care Acute Hospitals (LTCH)s

  • Allowing a long-term care hospital (LTCH) to exclude patient stays from the 25-day average length of stay requirement which allows these facilities to be paid as LTCHs.

Home Health Agencies

  • Providing relief to Home Health Agencies on the timeframes related to OASIS Transmission.
  • Allowing Medicare Administrative Contractors to extend the auto-cancellation date of Requests for Anticipated Payment (RAPs) during emergencies.

Provider Enrollment

  • Establishing a toll-free hotline for non-certified Part B suppliers, physicians and non-physician practitioners to enroll and receive temporary Medicare billing privileges.
  • Waiving the following screening requirements:
    • Application Fee – 42 C.F.R 424.514
    • Criminal background checks associated with FCBC -42 C.F.R 424.518
    • Site visits – 42 C.F.R 424.517
  • Postponing all revalidation actions.
  • Allowing licensed providers to render services outside of their state of enrollment.
  • Expediting any pending or new applications from providers.

Provider Locations

  • Temporarily waiving requirements that out-of-state providers be licensed in the state where they are providing services when they are licensed in another state. This applies to Medicare and Medicaid.

Medicare appeals in Fee for Service, MA and Part D

  • Extensions to file an appeal.
  • Waiving timeliness for requests for additional information to adjudicate the appeal.
  • Processing the appeal even with incomplete Appointment of Representation forms but communicating only to the beneficiary.
  • Processing requests for appeal that don’t meet the required elements using information that is available.
  • Utilizing all flexibilities available in the appeal process as if good cause requirements are satisfied.

We are continuing to monitor this developing situation and remain available to assist. For more information, contact Powers attorneys Mark Fitzgerald at Mark.Fitzgerald@PowersLaw.com or Natalie Dobek at Natalie.Dobek@PowersLaw.com.