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 COVID-19.
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 privileges.
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 licensure requirements.
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 issue.
- 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 patients.
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 discharge.
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.