Marti Arvin joins us for part two of our series to discuss compliance considerations around the Center for Medicare and Medicaid Services Waivers (CMS) that were issued for hospitals under the Public Health Emergency. In part one of this series, Marti covers a number of the section 1135 waivers issued by CMS to support teaching hospitals, teaching physicians, acute care, and other hospitals. Marti also discusses specific waivers and compliance considerations associated with the waiver.
Links to content:
- Read the second half of our blog series “CMS Waivers Under COVID-19: An Overview of Compliance Considerations – Part 2”
- Read the third installment of our blog series “CMS Waivers Under COVID-19: An Overview of Compliance Considerations – Part 3”
- 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.
Hello, and welcome to see CTEK Voices: The Risk Perspective. I’m Lauren freckle, and I’m back today with Marti Arvin, Executive Advisor at CTEK. Today, Marti will continue with part two of her “CMS Waivers Under COVID-19: An Overview of Compliance Consideration” series.
Hello Marti! Thanks for joining us and welcome back.
Hi Lauren, thank you, and welcome everyone who’s listening! I hope you’ve had an opportunity to listen to part one and we’ll start in with part two to discuss a few more of the waivers that CMS has issued for hospitals, teaching hospitals, and teaching physicians.
This series is only going to focus on that segment of the industry. There are multiple other waivers that go to other industry segments and you can get those on the CMS website. I just want to remind and everybody that when you’re talking about these waivers, it’s applicable only to Medicare. So if you want to look to see what’s applicable to Medicaid or to commercial payers, you’re going to need to look to your State Medicaid Agency or look to the commercial payers website many of these waivers are matched or things near it are coming out from State Medicaid Agencies and from commercial payers. You’ll just need to look to the specifics for each of those types of payers to figure out what’s applicable under their regulations and rules.
I also want to point out that we are not addressing any of the starker anti-kickback waivers or enforcement discretion that’s being exercised in those areas during this podcast series.
So, let’s start with one of the waivers that CMS has issued for hospitals and that’s around the Emergency Medical Treatment and Labor Act or EMTALA as many of you probably know. EMTALA is the regulation that says that you have to give a patient a medical screening exam and figure out whether or not they have an emergency medical condition before you can start talking with them about their ability to pay for care. And CMS has permitted a variety of alternative sites to be utilized for hospital care for COVID patients and non-COVID patients and as a tied to that they have issued a waiver that permits hospitals to conduct off-site medical screening exams.
Normally, the screening exam would need to be done in the emergency room or in a hospital department. But because they are permitting these extended care sites, they’re also waiving the requirement that that screening be done in one of those locations and they’re permitting that screening to be done in an off-site location.
As many of you know under the Emergency Medical Treatment and Labor Act there is a requirement that facilities with an emergency department do a medical screening exam to determine whether a patient has an emergent condition prior to asking any questions about that patients’ ability to pay. CMS is issued a waiver related to EMTALA that permits hospitals to conduct those medical screening exams at an off-site facility. During the COVID crisis, CMS has other waivers regarding the ability to have temporary sites and extended sites and to tie into that they have also permitted that the screening exams to be compliant with EMTALA can be conducted at those sites.
So, when you think about some of the compliance issues that might be tied to that you need to ensure that the off-site screening otherwise complies with remaining provisions of EMTALA. So just saying that its off-site doesn’t mean you can go lacks in any of the obligation to meet that medical screening exam and that it be conducted by an appropriate individual to perform that service.
You also might consider auditing this particular area to ensure that EMTALA was complied with if the screening was done at those off-site facilities once the public health emergency has been lifted. CMS has also issued some special provisions regarding a waiver of paperwork for hospitals specifically impacted by widespread outbreak of COVID-19. Now interestingly enough this waiver is only applicable to hospitals in states that have a widespread outbreak, but a widespread outbreak has been defined as 51 or more confirmed COVID cases.
So as of today May 4th, that’s all 50 states in the United States. Now there is an issue that if your state happens to go under that 51 mark, potentially this could no longer be applicable to you, but I don’t foresee that happening for quite some time. So, the provisions that are waived are the requirement to provide a copy of the medical record within a defined time frame. They’ve said there won’t be a need to have a written policy and procedure regarding visitation policies for patients in isolation or in quarantine for COVID-19.
Again, these are policies you would normally have to have so that everybody understands what those visitation procedures and policies are, but they are not requiring that to be in place. They’re not requiring certain documentation around seclusion of patients, which would normally be a requirement for hospitals to comply with. And again, CMS is going to reassess this as confirmed cases decrease but that maybe sometime if several months from now before that happens in most states.
So again, compliance considerations for this is just ensuring staff understands that they should comply if possible and should document information regarding seclusion decisions, even if that’s not an obligation. It’s just a good practice so that you’ve got it in place should anything come up at a later date.
There are also waivers around physical, in the physical environment. Under these waivers, the hospital is permitted to use non-hospital space for patient care and quarantine. So, these are locations in the hospital that may not normally be utilized for patient care, but it’s someplace that you can put the patient. Now in order for this to happen, the location does have to be approved by the state and some of these temporary expansion sites as they’re called, allows hospitals to use any location meeting the conditions of participation for operations under the public health emergency.
So, what this means is although you’ve got a patient in that temporary space you still are obligated to ensure that all of the Medicare conditions of participation are met but it ties back to the conditions of participation in place during the public health emergency. So, you need to look, see where Medicare has waived certain conditions of participation and if your if it hasn’t been waived ensure that that temporary expansion site is compliant with all the others.
There are a couple of waivers that are specific to critical access hospitals and their conditions of participation. CMS has waived the requirement that critical access hospital be limited to 25 beds. So, it’s allowing them to expand their capacity during the COVID crisis.
Another waiver allows them to have a length of stay that’s more than 96 hours. So outside of the public health emergency, critical access hospitals are only permitted to have a length of stay of up to 96 hours. So that requirement is waived under the pandemic and that length of stay can be longer so that the critical access hospitals can provide care to patients that might otherwise be transferred to a larger acute care hospital.
Another waiver related to critical access hospitals is that they’re not required to be in a rural area. Now, this might seem like a little bit of an odd one. But this really is to allow critical access hospitals to establish a surge site that might not be in an area that’s defined as rural.
Another waiver lists the requirements for critical access hospitals as far as their location relevant to other hospitals and as for the same reason to allow them to establish a surge site if that becomes necessary for them.
So some compliance considerations around these are to think about and still to monitor the beds and the length of stay for the patients and to make sure that everyone understands that once the public health emergency is lifted that, that critical access hospital goes back to that criteria of only having 25 beds, and of having a length of stay of only 96 hours.
There’s another group of edits that allows a hospital to use certain areas for certain types of patients. It allows the use of otherwise excluded areas that are distinct for acute care patients to be used for many patients. The area must be appropriate for use for an acute care inpatient and this might mean for example people seeing somebody in what would otherwise be a hospital outpatient area but you’re placing them in that area as an inpatient. And you would build for these services under the Inpatient Prospective Payment System just like you normally would bill if they were in a traditional acute care bad. But it does mandate that you do note the medical record regarding the fact that the patient was housed in this particular location due to capacity issues.
Tied to these same group of waivers, you can use acute care beds for inpatient psychiatric patients if the acute care bad again is appropriate for a psychiatric patient, then the conditions and staffing are conducive for those patients. There might be additional staffing needs for inpatient psychiatric patients and you have to consider that if you have an overflow that needs to be moved into your traditional acute care beds and has to be a process for assessing the acute care beds in the environment to ensure that the patient is not at risk of harm for themselves, or for others, and they can be safely cared for in that space again.
These services would still be billed under the Inpatient Facility Psych Facility Prospective Payment System just like they would if that patient were in the designated inpatient psychiatric bed. And again, this also requires that you denote the medical record that the patient was housed in that acute-care bed for capacity issues and then you also can use inpatient use acute care beds for inpatient rehab patients.
Same things as with the psychiatric bed it has to be appropriate for an inpatient rehab patient and the patient has to be able to continue to receive intensive rehab services. You would build it under the inpatient rehabilitation facility prospective payment system and again, you would need to denote the record that the patient was housed in that acute care bed for capacity issues.
So, thinking through and remembering to have people denote these things in the medical record are going to be important. There’s no change in the billing process for you. You would bill it just as though the patient were in the bed type that was designated for the care that they need. So, some of the compliance considerations are ensuring there’s an assessment of the appropriateness regarding where the page patients placed. Making sure that medical record is appropriately annotated to reflect that patient’s location due to capacity issues. Also, to ensure those rehab patients if they’re housed in an acute care bed are getting the intensive rehab services that are appropriate for them. And once the public health emergency is over compliance professionals might consider auditing what types of unit charges the types of unit charges that are have been submitted and review the documentation that supports that.
Now telemedicine is an area that we have a specific blog around. In fact, we have two blogs and podcasts that talk about the HIPAA issues for telemedicine. As well as some of the telemedicine waivers at it as well as some of the specific waivers tied to my telemedicine for CMS.
But in this area, specific to hospitals, there’s a waiver of the requirement for a written agreement between the distant side hospital and the site or the originating site hospital. Normally there would be an expectation that that kind of written agreement is in place, but during the public health emergency, CMS has waived that requirement. They also have increased the types of eligible providers that can perform telehealth telemedicine services.
They have added to the list of types of caregivers that can provide telehealth services, physical therapists, occupational therapists, speech-language pathologists, and others essentially anyone who can bill Medicare for their professional service can perform a telehealth service during the public health emergency.
They’ve also transitioned a number of services to be payable as audio-only telehealth services. Again, under the normal rules care requires a real-time audio-visual connection with the patient for it to be a billable telehealth service, but they have created a list of certain services that could be provided audio-only and still be billable as telehealth services. And those are some evaluation and management services, some behavioral health services, certain educational services. All the codes that can be done through audio-only telehealth are listed on a downloadable spreadsheet from the CMS website.
Some of the compliance considerations around this again is to ensure the documentation is appropriate for these services and it makes it to the medical record. It’s always been a little difficult to get providers to ensure that they properly document a telehealth service in the medical record. And you may have providers that are now providing these services from their home. They may still have ready access to your electronic health record if they have a link to be able to do so, but if not, then that may be more complicated for them to actually ensure that documentation. And again, that maybe something that you’ll want to audit once the public health emergency is over. You also want to make sure staff understand what services can no longer be provided by them once the public health emergency is over.
So, for example, that list I just indicated, a physical therapist and occupational therapist, and speaks language pathologist. They can provide those services today but once the public health emergency is over, we go back to the pre-COVID rules and they’re not able to perform a telehealth service until there’s additional changes if any to the CMS regulations. And they also need to understand what services can no longer be provided via telehealth. CMS has created fairly lengthy list of services that they’ve added to telehealth for purposes of the public health emergency.
So folks need to be aware of what they may not be able to do by telehealth, once the emergencies over and understand that the services that were being able to be provided through audio-only means for telehealth during the public health emergency now have to go back to that real-time audio-visual setup and cannot be billed unless they are.
Now, one of the things I mentioned in my earlier podcast on telemedicine was a question around, what where the provider would put the location when they were in the distant site providing a telemedicine service from their home, and CMS originally issued an FAQ on this and said that if the provider is not the distant site performing a telehealth service, they should put their home address if that’s where they’re physically located. Even if that address wasn’t on their enrollment with Medicare.
Now, as I mentioned in my prior podcast at that time, I wasn’t clear and CMS had not issued this information, but it wasn’t clear which address they should use and whether or not if they use their home address, which is actually where the service was provided as the place of service. That, that would hit an edit in most payment systems because that was not got an address that was on file with Medicare. They have clarified in the this in their most recent FAQ’s to say that, the provider who performs a telehealth service from their home can use the place of service where that service would have been provided if they had normally done it pre-COVID through pre-COVID measures or pre-public health emergency measures.
So, if the physician normally would have done it from his or her office from a hospital outpatient clinic or some other type of location other than their home before the public health emergency. Then that’s the place of service they should use on their claim when they do these types of telehealth services from their home during the public health emergency.
So again, a compliance consideration is to ensure that providers understand that once the public health emergency is lifted. They cannot provide telehealth services from their home unless their home is a site that is tied to their Medicare enrollment so they will need to think about this and remember that they need to be physically located at an address that is tied to their Medicare enrollment.
So that gets through our next group of waivers that we wanted to talk about in our podcast and again I just want to remind everybody that the things we’ve talked about are for Medicare only and that you’ll need to look to your State Medicaid Agency or to the commercial payers’ websites to figure out whether they’re following some of the waivers that CMS has issued. Whether they have slightly different rules or whether nothing has changed for them. For most of them, they have modified this to match what CMS has done. But in order to ensure that you’re appropriately documenting, coding, and billing for those services you want to make sure that you look to those various websites to guarantee that.
Thank you, and I hope you’ve enjoyed this.
Thank you, Marti, for the continued guidance on CMS waivers for hospitals during the COVID-19 pandemic. Looking forward to part 3. Thank you very much to our listeners for listening.