CMS Continues to Increase Flexibility in Quality Reporting Requirements

May 8, 2020

This alert is part of a series discussing the comprehensive actions taken by the Centers for Medicare & Medicaid Services in response to the COVID-19 pandemic that are most important to healthcare providers. For a related update, see “COVID-19 – New Regulatory Flexibilities for Durable Medical Equipment Suppliers” (May 13).

In response to the extraordinary circumstances of the 2019 novel coronavirus (COVID-19) pandemic, on March 30, 2020, the Centers for Medicare & Medicaid Services (CMS) announced multiple temporary regulatory waivers and new rules to provide temporary relief from certain requirements. CMS’ goal was to allow providers to focus on providing care to patients affected by COVID-19. On April 30, 2020, CMS issued updated temporary regulatory waivers and another round of regulatory changes in a new interim final rule with comment period (IFC).

As discussed in previous alerts from March 24, 2020, and April 6, 2020, due to the COVID-19 pandemic, CMS announced it would temporarily ease quality reporting requirements for clinicians, providers and healthcare facilities participating in Medicare quality reporting programs. The prior announcements delayed or waived mandatory reporting from providers during the public health emergency (PHE). This article focuses on CMS’ changes in the IFC with respect to quality reporting requirements and exceptions.

Post-Acute Care Reporting

CMS announced reporting flexibility in the IFC for post-acute care facilities, including inpatient rehabilitation facilities (IRF), long-term care hospitals (LTCH), skilled nursing facilities (SNF) and home health agencies (HHA). Specifically, certain post-acute care reporting measures incorporated Transfer of Health (TOH) Information Measures and Standardized Patient Assessment Data Elements (SPADE) in quality reporting measurements slated to begin with patient discharges on Oct. 1, 2020, and for HHAs on Jan. 1, 2021. CMS delayed release of these updated instruments with new measures as shown in the chart below. CMS stated that this should allow providers to focus on patient care rather than training their staff, as providers can continue using the current versions of their assessment instruments, with which they are already familiar, and then train on the new versions after the end of the PHE. In conjunction with the new instrument delay, CMS is delaying the compliance dates for collection and reporting of TOH Information Measures and SPADE. The following chart summarizes the four facility types’ reporting changes:

Facility Type Instrument Delay Compliance Delay
IRF IRF Patient Assessment Instrument Oct. 1 of the year that is at least one full fiscal year after the end of the PHE
LTCH LTCH Continuity Assessment Record and Evaluation Data Set Oct. 1 of the year that is at least one full fiscal year after the end of the PHE
SNF Minimum Data Set Oct. 1 of the year that is at least one full fiscal year after the end of the PHE
HHA Outcome and Assessment Information Set Instrument Jan. 1 of the year that is at least one full calendar year after the end of the PHE

These instrument changes are in addition to the optional nature of the data submissions for fourth quarter 2019 (Oct. 1 through Dec. 31, 2019) and the announced non-reporting periods through at least the first six months of 2020, as previously discussed in the McGuireWoods alerts cited above.

Hospital Value-Based Purchasing (VBP) Extraordinary Circumstance Exception (ECE) Policy

CMS is updating its VBP Program ECE policy, recognizing certain burdens associated with submitting ECE request forms in the midst of a crisis, where hospitals may need to focus on care delivery and PHE-related priorities. Currently, CMS’ ECE policy allows hospitals to apply for an exception on certain mandatory forms. In such circumstances, when excepted, a hospital’s cases during the period will not be considered in the VBP report, recognizing that disasters could have an adverse impact on quality performance and lead to a decrease in reimbursement. CMS has updated its VBP Program ECE policy to allow generalized exceptions for hospitals located in entire regions or locales — which could include the entire United States — without a formal request, when CMS determines that the extraordinary circumstance has affected the entire region or locale. Instead, when this expanded ECE policy is utilized, CMS will notify affected hospitals that they do not need to submit VBP information during the disaster, as such information will not be considered for the minimum number of cases or toward their total performance scores.

Further, utilizing this new authority in connection with the COVID-19 crisis, consistent with prior alerts, CMS granted an ECE to all hospitals participating in the Hospital VBP Program for the following reporting requirements:

  1. Hospitals will not be required to report National Healthcare Safety Network healthcare-associated infection measures and Hospital Consumer Assessment of Healthcare Providers and Systems survey data for fourth quarter 2019 and the first two quarters of 2020. However, hospitals can optionally submit part or all of the data, at the hospital’s discretion.
  2. CMS will exclude qualifying claims data from the mortality, complications and Medicare spending-per-beneficiary measures for the first two quarters of 2020.

Merit-Based Incentive Payment System (MIPS) Qualified Clinical Data Registry (QCDR)

While not directly affecting reporting requirements for clinicians, CMS also amended certain reporting requirements for QCDR vendors, which generally include specialty societies, regional health collaboratives, large health systems or software vendors working in collaboration with one of these medical entities. QCDRs collect both MIPS measure data as well as separate QCDR measure data from clinicians and relay this data to CMS. These QCDR measures, under the current rules, must be fully tested and collected prior to QCDR self-nomination periods beginning in 2021. In consideration of limited resources and in an effort to reduce regulatory burdens on these measure criteria, CMS delayed these policies to calendar year 2022. Thus, clinicians who work through QCDRs to relay data to CMS may have altered timelines in terms of collection from QCDRs, and updated quality measures may be delayed to future years as such testing takes place.

IFC changes that relate to quality reporting are applicable on the effective date of the IFC in the Federal Register, and CMS will accept comments for 60 days after the IFC is published in the Federal Register. McGuireWoods will continue to monitor the progress of COVID-19-related regulatory changes, including those with respect to quality reporting requirements, as CMS considers the received comments.

Please contact the authors for additional information on the waivers and rule changes. McGuireWoods has published additional thought leadership on how companies across various 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.