COVID-19 – New Regulatory Flexibilities for Durable Medical Equipment Suppliers

May 13, 2020

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On April 29, 2020, the Centers for Medicare & Medicaid Services (CMS) updated its guidance regarding several emergency waivers related to Medicare and Medicaid policy and regulatory revisions, which were originally issued on March 30, 2020, in response to the COVID-19 crisis. The Department of Health and Human Services and CMS very likely will continue to announce supplemental guidance on the blanket waivers, so be sure to visit the McGuireWoods COVID-19: Impact and Insight page for the latest updates.

Below is a summary of the relevant waivers that affect suppliers of durable medical equipment, prosthetics, orthotics and supplies (DME) and are intended to equip the American healthcare system with maximum flexibility to respond to the national emergency. These temporary changes apply retroactively to March 1, 2020, across the entire U.S. healthcare system and will remain in effect for the duration of the emergency declaration. By enacting these waivers, CMS hopes to “put patients over paperwork” to provide temporary relief from many documentation, reporting, and audit requirements, so providers and regulators alike can focus on providing needed care to Medicare and Medicaid beneficiaries affected by COVID-19. Read on to learn more about the five key waivers applicable to DME suppliers.

  1. Replacement of Lost or Damaged DME. Where DME is lost or damaged, DME Medicare Administrative Contractors (MACs) now have the flexibility to waive certain replacement requirements typically required by Medicare. Specifically, CMS indicated that the requirements for a face-to-face encounter, new physician order, and new medical necessity documentation, which typically are required to support payment for a replacement item, are waived for the duration of the COVID-19 national emergency. CMS cautioned that DME suppliers should still include a narrative description on the claim explaining why the equipment must be replaced, and should properly document the loss or damage. CMS made this documentation waiver retroactive to include dates of service on or after March 1, 2020.

  2. Prior Authorization. In light of the COVID-19 pandemic, CMS is temporarily waiving certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements to relieve the administrative burden of compliance during the COVID-19 emergency. These agencies typically require DME suppliers to undergo a prior authorization process to ensure that applicable coverage, payment, and coding rules are met before the supplier delivers DME supplies to program beneficiaries. According to its guidance, CMS is pausing this national prior authorization program for certain DME suppliers to alleviate administrative burden.

  3. DME Enrollment and Revalidation. Additionally, CMS is implementing actions to streamline the DME supplier enrollment process. CMS has committed to expediting any pending or new applications from DME suppliers and postponing all supplier revalidations. Based on CMS’ guidance, it is not clear how long the revalidation postponement will last, but CMS could resume revalidation once the COVID-19 national emergency ends, if not before. Relatedly, during the COVID-19 emergency, CMS will not require newly enrolled DME suppliers to become accredited in connection with the supplier’s enrollment in the Medicare program, and is extending existing DME supplier accreditations for 90 days.

  4. DME Payment Increases. As required by the Coronavirus Aid, Relief, and Economic Security (CARES) Act, CMS will continue to adjust the fee schedule amounts for items and services furnished in rural and non-contiguous, non-competitive bidding areas based on a 50/50 blend of adjusted and unadjusted rates for the remainder of the COVID-19 public health emergency. Specific to DME suppliers, as required by the CARES Act, CMS will provide higher payments for certain DME items and services furnished in non-rural, non-competitive bidding areas within the contiguous United States with dates of service on or after March 6, 2020, through the remainder of the COVID-19 public health emergency.

  5. Signature Requirements. Retroactive to March 1, 2020, CMS is waiving patient signature and proof-of-delivery requirements for DME when signatures cannot be obtained because of the COVID-19 emergency. When this occurs, DME suppliers should document in the medical record the appropriate date of delivery and indicate that the signature could not be obtained due to COVID-19. Separately, DME items may be provided via a physician’s verbal order, although a signature (which may be electronic) is still required prior to submitting claims for payment.

Please contact the authors or any of the McGuireWoods COVID-19 Response Team members for additional information on these waivers. CMS is expected to announce supplemental guidance on these regulatory changes and McGuireWoods will continue to monitor COVID-19-related developments and provide updates.

For additional thought leadership on how companies across various industries can navigate urgent and evolving challenges arising from the COVID-19 pandemic, visit the McGuireWoods COVID-19: Impact and Insight page.

Amber Walsh
COVID-19: Healthcare Video Alerts
In a series of video alerts, McGuireWoods’ healthcare lawyers address issues providers face and overcoming COVID-19 challenges.