Health Law Daily CMS eases rules to help providers effectively respond to COVID-19
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Friday, May 8, 2020

CMS eases rules to help providers effectively respond to COVID-19

By Susan L. Smith, JD, MA

CMS has issued an interim final rule amending certain existing regulations on an interim basis to give health care providers the flexibility needed to address the health threats related to the spread of the coronavirus more effectively.

In response to the COVID-19 public health emergency (PHE) and recent legislation, CMS has amended certain policies and regulations that might inhibit innovative uses of technology and capacity that could be effective in the efforts to mitigate the impact of the pandemic on Medicare, Medicaid, Basic Health Program, and Exchange beneficiaries as well as others. The rules are effective on May 8, 2020, while policies in the interim final rule applicable beginning on March 1, 2020, or January 27, 2020 with comment period (Interim Final Rule with comment period, 85 FR 27550, May 8, 2020.).

Impacted providers and facilities. The changes apply to physicians and other nonpractitioners (NPP), hospice providers, federally qualified health centers (FQHCs), rural health clinics, hospitals, critical access hospitals (CAHs), community mental health centers (CMHCs), clinical laboratories, teaching hospitals, providers of the laboratory testing benefit in Medicaid, opioid treatment programs, and quality reporting programs (QRPs) for inpatient rehabilitation facilities (IRFs), long-term care hospitals (LTCHs), skilled nursing facilities (SNFs), home health agencies (HHAs), and durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) suppliers.

Nonphysician practitioners. CMS has made interim changes during the PHE to 42 C.F.R. §410.32(b), to add flexibility for nurse practitioners (NP), certified nurse (CNS), physician assistants (PA), and certified nurse midwives (CNM)—practitioners that have separately enumerated benefit categories under Medicare law—permitting them to furnish services that would be typically be considered physicians’ services if furnished by a physician and paid under Medicare Part B. This also applies supervision of COVID–19-related diagnostic psychological and neuropsychological testing services to allow these services to be supervised by a NP, CNS, PA and CNM as described above, during the PHE, in addition to physicians and CPs who are currently authorized to supervise these tests. In addition, pharmacists may provide services incident to the services, and under the appropriate level of supervision, of the billing physician or NPP.

Opioid treatment programs. The change allows counseling or therapy to be furnished using audio-only telephone calls rather than via two-way interactive audio-video communication technology during the PHE for the COVID–19 pandemic if beneficiaries do not have access to two-way audio/video communications technology. In addition, periodic assessments furnished during the PHE for the COVID–19 pandemic may be done via two-way interactive audio-video communication technology or if beneficiaries do not have access to two-way audio-video communications technology, the periodic assessments may be furnished using audio-only telephone call.

Therapy. The amended rules will permit the physical therapist (PT) or occupational therapist (OT) who established the maintenance program to delegate the performance of maintenance therapy services to a PT or OT assistant when clinically appropriate. In addition, all members of the medical team are allowed to add documentation in the medical record which is then reviewed and verified (signed) by the appropriate clinician.

Provider-based department. CMS believes that it is important for beneficiaries to be able to receive care in temporary expansion locations to maintain infection control and has enabled hospitals to furnish outpatient services to beneficiaries in their homes (or other temporary expansion locations), when such a location is considered to be a provider-based of the hospital, as permitted under the waivers in effect during the COVID–19 PHE. Providers can also furnish certain partial hospitalization services remotely to patients in a temporary expansion location of the hospital or CMHC, which may include the patient’s home to the extent it is made provider-based to the hospital or an extension of the CMHC. CMS has also expanded coverage for audio only evaluation and management services.

SNFs and nursing homes. To support surveillance of COVID-19 cases and increase transparency for residents, their representatives and families, CMS has added infection control requirements to establish reporting for confirmed or suspected COVID-19 cases at new §483.80(g). This national requirement provides standardized information to assist with national surveillance on the status of COVID-19 in all nursing homes. Failure to report will result in civil money penalties.

Medical education. CMS has also made changes to indirect medical education (IME) by holding hospitals harmless from reductions in IME payments due to increases in bed counts due to COVID–19. Further, CMS will allow teaching hospitals to claim for purposes of IME and direct graduate medical education payments the time spent by residents training at other hospitals during the COVID–19 PHE.

Accountable care organizations (ACOs). CMS has adjusted program policies to address the impact of the COVID–19 pandemic on ACOs, including offering certain flexibilities in program participation options to currently participating ACOs and addressing potential distortions in expenditures resulting from the pandemic to ensure that ACOs are treated equitably regardless of the degree to which their assigned beneficiary populations are affected by the pandemic.

Medicaid. CMS has amended 42 C.F.R. §440.30 to permit flexibility for Medicaid coverage of laboratory tests and x-ray services, if the purposed of the test is to diagnose or detect COVID–19 or other PHE, including coverage for tests administered in nonoffice settings, and coverage for laboratory processing of self-collected COVID–19 tests that are FDA-authorized for self-collection. CMS has also removed the requirement that the NPPs have to communicate the clinical finding of the face-to-face encounter to the ordering physician. Such practitioners are now capable of independently performing the face-to-face encounter for the patient for whom they are the ordering practitioner, in accordance with state law.

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