As part of its continued efforts to ease burdens on healthcare providers
during the 2019 novel coronavirus (COVID-19) pandemic, the Centers for
Medicare & Medicaid Services (CMS) released
a slew of additional waivers
on March 30, 2020. Among
other waivers, covered in separate alerts based on provider type, the following waivers
are aimed at expanding the healthcare workforce and easing documentation
requirements for physicians and other clinicians so they can focus on
putting “patients over paperwork” during this critical time.
Expanding the Healthcare Workforce
Below is a list of the most notable measures that CMS is implementing to
rapidly expand the healthcare workforce participating in the fight against
Provider Enrollment. CMS is easing Medicare enrollment requirements for physicians,
non-physician practitioners (NPPs) and other providers and suppliers who
are establishing new isolation facilities to furnish care to patients with
COVID-19. As covered in more detail in a
separate McGuireWoods alert, CMS has established toll-free hotlines at each of the Medicare
Administrative Contractors (MACs) to allow physicians, NPPs and Part A
certified providers and suppliers establishing isolation facilities during
the public health emergency to initiate temporary Medicare billing
Practitioner Locations. CMS is temporarily waiving requirements that practitioners be licensed in
both the state where they are enrolled in Medicare as well as in the state
where they are actually providing services. These waivers apply to
physicians and NPPs who meet the following four conditions:
- The practitioner is enrolled in the Medicare program.
- The practitioner has a valid license to practice in the state which
relates to his or her Medicare enrollment.
- The practitioner is furnishing services — whether in person or via
telehealth — in the state in which the emergency is occurring in order to
contribute to relief efforts in his or her professional capacity.
- The practitioner is not affirmatively excluded from practice in any
state in the emergency area.
The qualified practitioner should seek the licensure waiver by contacting
the provider enrollment hotline for the MAC that services his or her
geographic area. This federal waiver does not waive state or local
CoP Waivers. CMS is waiving a condition of participation (CoP) for hospitals
participating in the Medicare program which requires that a Medicare
patient be under the care of a physician, as set forth in 42 CFR §
482.12(c)(1-2) and (4). This waiver allows hospitals to use NPPs more
fully. To the extent national coverage determinations (NCDs) and local
coverage determinations (LCDs) require a specific practitioner type or
physician specialty to furnish or supervise a service, during this public
health emergency, the chief medical officer or equivalent of a hospital
will have the authority to make those staffing decisions, giving hospitals
more flexibility to provide services to patients.
- Direct supervision to include virtual supervision. In
many cases, achieving appropriate supervision in physician office settings
requires the presence of a physician or an NPP in the same office suite as
the beneficiary when the service is provided. To address risks of
transmission associated with COVID-19, CMS is revising the definition of
direct supervision to include virtual supervision using real-time
audio/video technology by a physician or an NPP. As part of this waiver, a
physician may enter into a contractual arrangement for auxiliary personnel
to provide care that would ordinarily be provided incident to a physician’s
service (including services that are allowed to be performed via
telehealth). In such instances, the providers/suppliers would seek payment
for any services they provided from the billing practitioner and would not
submit claims to Medicare for such services. The expanded definition of
“direct supervision” is limited to Medicare direct supervision
requirements, and does not affect the applicable state’s position on this
- Waiver of certain direct supervision requirements at hospital
outpatient departments and critical access hospitals. Medicare generally requires a minimum of direct supervision during the
initiation of nonsurgical extended duration therapeutic services, followed
by general supervision at the discretion of the supervising physician or
the appropriate NPP. CMS is now allowing general supervision for the full
provision of these services. As such, CMS will not require physicians to be
immediately available in the office suite to supervise such procedures. As
with the direct supervision waiver, this waiver does not affect any similar
state or local requirements that may be in place.
Permitting Non-Physician Practitioners and Other Clinicians to Work to
the Fullest Extent of Their Licenses.
- Doctors no longer need to be physically present in order to care for
patients at rural hospitals, even if those hospitals are across state
lines. So long as the physician can communicate with the patient via phone,
radio or online communication, then no physical presence is required. The
ability of facilities to use remotely located physicians and coordinate
with nurse practitioners at rural facilities should help such facilities by
providing the flexibility they need to meet patient needs.
- CMS is allowing nurse practitioners, in addition to physicians, to
perform some medical exams on Medicare patients at skilled nursing
facilities. The intent is to ensure that patients in those facilities have
their increased care needs met, whether COVID-19-related or not.
- Some homebound patients can receive initial assessments from home-health
agencies’ occupational therapists, instead of waiting for a home-health
nurse. This should both allow such homebound patients to receive
home-health services more quickly and allow home-health nurses to focus on
direct patient care.
- Hospice aides are allowed to provide more services, including waiving
certain annual training requirements to ensure that those aides and nurses
who provide the training can spend that time providing services directly to
Putting “Patients over Paperwork”
Stark Law Waivers. CMS released
sweeping blanket waivers to the Stark Law in an effort to minimize regulatory burdens on hospitals and physicians.
For more detail regarding the Stark Law waivers, see this
separate McGuireWoods alert.
Clinical Judgment Deference
. To increase clinician flexibility when treating patients
during the COVID-19 public health emergency, CMS is waiving the NCDs and
LCDs requiring that patients have specific diagnoses or clinical
characteristics in order to be prescribed respiratory devices and
equipment. Instead, clinicians may use their discretion to determine which
patients should receive such equipment.
Hospital Medical Records. CMS is waiving the CoP requirements regarding adequate staffing of a
hospital’s medical records department, requirements for the form and
retention of the medical record, and requirements for the content of the
medical record. Of particular note is the waiver of the requirements that
(i) records include the results of all consultative evaluations of
patients, and (ii) records be completed within 30 days of a patient’s
Signature Requirements. CMS is waiving signature and proof of delivery requirements for Part B
drugs and durable medical equipment when a signature cannot be obtained due
to the current crisis. Suppliers should document in the medical record the
appropriate date of delivery and that a signature could not be obtained
because of COVID-19.
MIPS Reporting. As discussed in an
earlier McGuireWoods alert, CMS is revising certain portions of the Merit-based Incentive Payment
System (MIPS) in the Quality Payment Program. First, clinicians who have
been adversely affected by the COVID-19 public health emergency may submit
an application and request reweighting of the MIPS performance categories
for the 2019 performance year. This change allows clinicians impacted by
the COVID-19 outbreak, and who may be unable to submit their MIPS data
during the current submission period, to request reweighting and
potentially receive a neutral MIPS payment adjustment for the 2021 payment
year. Additionally, CMS is adding one new “improvement activity” for the CY
2020 performance year that, if selected, would provide high-weighted credit
for clinicians within the MIPS Improvement Activities performance category.
Clinicians will receive credit for this improvement activity by
participating in a clinical trial utilizing a drug or biological product to
treat a patient with COVID-19 and then reporting their findings to a
clinical data repository or clinical data registry.
Please contact the authors for additional information on any of the waivers
listed above. McGuireWoods has published
additional thought leadership on how companies across industries can address crucial coronavirus-related
business and legal issues. The firm’s COVID-19 response team stands ready
to help clients navigate urgent and evolving legal and business issues
arising from the COVID-19 pandemic.
In a series of video alerts, McGuireWoods’ healthcare lawyers address
issues providers face and overcoming COVID-19 challenges.