Alerts

CMS COVID-19 Interim Final Rule Issued With Retroactive March 1 Effective Date

Alerts / April 16, 2020

The Centers for Medicare & Medicaid Services (CMS) released an interim final rule, Medicare and Medicaid Programs; Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency (April 6), that makes payment, policy and programmatic changes intended to give providers flexibilities needed to respond effectively to the public health emergency (PHE) for the COVID-19 pandemic. The rule significantly changes telehealth requirements and other CMS regulations. This rule was issued nearly contemporaneously with and generally tracks the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), but there are some differences due to the preparatory time involved. Consequently, changes should be expected. Comments are due by June 1. The rule applies retroactively from March 1 and its provisions generally remain in effect through the PHE.

1. Medicare Telehealth Services Under Social Security Act § 1834(m)

Social Security Act (SSA) § 1834(m) is the general Medicare telehealth payment provision. This provision describes the payment amounts and conditions under which Medicare will pay for certain services, which must ordinarily be furnished in person, when they are instead provided through telehealth. The list of telehealth-eligible services is published on the CMS website. The services were expanded pursuant to a SSA § 1135 waiver on March 17.

Under the waiver, § 1834’s geographic limitation on telehealth services has been waived. Telehealth services can now be provided anywhere in the country, including a patient’s home.

In addition, CMS is waiving on an interim basis many frequency limitations and other requirements associated with particular services furnished via telehealth. Further, CMS is clarifying several payment rules that apply to other services that are furnished using telecommunications technologies that can reduce COVID-19 exposure risks.

1.1 Site of Service Differential for Medicare Telehealth Services

CMS will pay providers for telehealth services that, if not for the COVID-19 pandemic, would have been furnished in person at the same rate they would have been paid if the services were furnished in person. Consequently, an office-based practitioner will be paid the non-facility Physician Fee Schedule (PFS) amount and a facility-based physician will be paid the facility-based PFS amount. Historically, all physicians were paid the lower facility rate because the patient-originating site was paid a facility fee. Providers will have to report their applicable place of service (POS) code on claims to ensure proper payment. If the old telehealth POS code 2 is used, the lower facility rate will be paid by CMS. In addition, providers must identify telehealth services with the Current Procedural Terminology (CPT) telehealth modifier 95 on their claims.

1.2 Additional Telehealth Services

The following codes were added as permissible telehealth services:

  • Emergency department visit (CPT codes 99281-99285)
  • Observation services (initial, subsequent and discharge) (CPT codes 99217-99226; 99234-99236)
  • Inpatient hospital care (CPT codes 99221-99223; 99238-99239)
  • Nursing facility services (CPT codes 99304-99306; 99316-99316)
  • Critical care services (CPT codes 99291-99292)
  • Domiciliary, rest home and custodial care services (CPT codes 99327-99328; 99334-99337)
  • Home visits (CPT codes 99341-99350)
  • Inpatient neonatal and pediatric critical care (CPT codes 99468-99469; 99471-99473; 99475-99476)
  • Intensive care services (CPT codes 99477-99480)
  • Care planning services for patients with cognitive impairment (CPT code 99483)
  • Group psychotherapy services (CPT code 90853)
  • End-stage renal disease (ESRD) services (CPT codes 90952-90953; 909590; 90962)
  • Psychological and neuropsychological testing (CPT codes 96130-96133; 96136-96139)
  • Therapy services (CPT codes 97161-97168; 97110; 97112; 97116; 97535; 97750; 97755; 97760; 97761; 92521-92525; 92507) (CMS reiterated that physical therapists, occupational therapists and speech-language pathologists are not eligible distant site practitioners. Consequently, these telehealth services must be billed by physicians.)
  • Radiation treatment management services (CPT code 77427 for face-to-face services)

CMS also noted that it may not be clinically appropriate or possible to use telecommunications technology to furnish these particular services to every person or in every circumstance. Physicians and providers must use their clinical discretion. Further, CMS noted that the codes used have historically been based, in part, on the setting of care and the patient’s status. Consequently, there are separate sets of evaluation and management (E/M) codes for different settings of care, such as office/outpatient codes, nursing facility codes and emergency department codes. In the telehealth environment, CMS expects physicians and other practitioners to use the E/M code that best describes the nature of the care they are providing, regardless of the physical location or status of the patient.

2. Frequency Limitations on Subsequent Care Services in Inpatient and Nursing Facility Settings, Critical Care Consultations and Required “Hands-on” Visits for ESRD Monthly Capitation Payments

CMS removed the frequency limits for the following telehealth services:

  • Subsequent inpatient visits (CPT codes 99231-99233)
  • Subsequent nursing facility visits (CPT codes 99307-99310)
  • Critical care consultation services (CPT codes G0508-G0509)
  • Required ESRD “hands-on” visits for capitation payment (CPT codes 90951-90955; 90957-90970)
3. Telehealth Modalities

CMS added an exception to clarify that the prohibition on the use of telephones, fax machines and email for telehealth does not apply to mobile devices that include audio and video real-time interactive capabilities. The new exception to 42 C.F.R. § 410.78(a)(3) provides that “interactive telecommunications system” means multimedia communications equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication between the patient and distant site physician or practitioner.

4. Beneficiary Cost-Sharing

The rule recognizes that providers will not be subject to administrative sanctions for reducing or waiving any beneficiary cost-sharing obligations for telehealth services in accordance with a newly issued Office of Inspector General (OIG) policy statement. The OIG’s policy statement applies to a broad category of non-face-to-face services furnished through various modalities, including telehealth visits, virtual check-in services, e-visits, monthly remote care management and monthly remote patient monitoring.

5. Communication Technology-Based Services (CTBS)

CTBS includes, for example, certain kinds of remote patient monitoring (either as separate services or as parts of bundled services) and interpretations of diagnostic tests when furnished remotely. These services differ from the services described above under SSA § 1834(m) in that they are not the kinds of services that are ordinarily furnished in person but are routinely furnished using a telecommunications system.

The CMS policy that brief patient telecommunications with a provider (Healthcare Common Procedure Coding System (HCPCS) code G2012) were limited to established patients has been obviated. During the PHE, such services can be provided to both new and established patients. The provisions requiring bundling of the visit into an E/M code visit if the call results from an E/M visit in the past seven days or results in an E/M visit in the 24 hours following the telecommunication (or next available appointment, if later) have not been waived; however, CMS also clarified that the patient consent for these services can be (i) documented by auxiliary personnel acting under general supervision and (ii) can be obtained simultaneously with the service.

In addition, CMS has waived the limitation that online assessment and management services (CPT codes 99421-99423 and HCPCS codes G2061-G2063) are for established patients only. In this case, CMS is exercising its discretion on an interim basis to relax enforcement of the established-patient aspect of the code descriptors. Specifically, CMS will not review whether services were furnished to established patients.

To facilitate billing of CTBS by therapists, CMS designated HCPCS codes G2010, G2012, G2061, G2062 and G2063 as CTBS “sometimes therapy” services that would require the private-practice occupational therapist, physical therapist or speech-language pathologist to include the corresponding GO, GP or GN therapy modifier on claims for these services. CTBS therapy services include those furnished to a new patient or to an established patient that the occupational therapist, physical therapist or speech-language pathologist practitioner is currently treating under a plan of care.

6. Direct Supervision by Interactive Telecommunications Technology

CMS is changing the direct supervision requirement to allow a physician to use telecommunications technology to accomplish direct supervision when use of such technology can reduce exposure risks for the beneficiary or healthcare provider. Historically, direct supervision required that a physician be present in the office suite and immediately available to furnish assistance and direction throughout the performance of a procedure. Under the change, physicians need not be physically present; rather, they can supervise services from another location using real-time interactive audio and video telecommunications technology during the PHE. However, physicians must determine in each case whether furnishing services without the physical presence of the physician in the same location would be appropriate. Services provided under virtual supervision can be through employees or contractual staffing arrangements.

CMS warned, however, that it would be on guard to prevent unbundling of services that are paid under the Medicare Home Health Prospective Payment System (PPS). For example, CMS indicated that it would not expect that services furnished at a patient’s home incident to a physician service would usually occur during the same period as a home health episode of care.

Similarly, CMS is changing its regulations with respect to the supervision of diagnostic services furnished directly or under arrangement in a hospital or in an on- or off-campus outpatient department of a hospital. Finally, CMS is also allowing certain pulmonary rehabilitation, cardiac rehabilitation and intensive cardiac rehabilitation services direct supervision to also be provided through virtual presence via audio/video real-time communications technology when use of such technology is indicated to reduce exposure risks for the beneficiary or healthcare provider.

7. Home Health – Clarification of Homebound Status

CMS has announced that patients who are instructed to remain in their homes or are under “self-quarantine” are considered “confined to the home” or “homebound” for purposes of the Medicare home health benefit where a physician has determined that it is medically contraindicated for a beneficiary to leave the home because (i) he or she has a confirmed or suspected diagnosis of COVID-19 or (2) the patient has a condition that may make the patient more susceptible to contracting COVID-19. However, a patient who is exercising “self-quarantine” for his or her own safety would not be considered “confined to the home” unless a physician certifies that it is medically contraindicated for the patient to leave the home.

However, determinations of whether home health services are reasonable and necessary, including whether the patient is homebound and needs skilled services, must be based on an assessment of each beneficiary’s individual condition and care needs. So for example, even if a patient is confined to his or her home because of a suspected diagnosis of COVID-19, a home health visit solely to obtain a nasal or throat culture would not be covered because the service is not considered a skilled service; it would not require the skills of a nurse to obtain the culture, as the specimen could be obtained by an appropriately trained medical assistant or laboratory technician.

8. The Use of Telecommunications Technology Under the Medicare Home Health Benefit During the PHE for the COVID-19 Pandemic

CMS amended home health agency (HHA) plan of care requirements to allow HHAs the flexibility to provide more services to beneficiaries using technology, such as telemedicine and remote patient monitoring, during the PHE. The costs of telecommunications technology will be treated during the PHE as an allowable administrative and general cost when properly identified on cost reports if the technology is (1) related to the skilled services being furnished by the provider to optimize the services furnished during the home visit or when there is a home visit and (2) included in the home health plan of care along with a description of how the use of such technology will help achieve the goals outlined in the plan of care without substituting for an in-person visit as ordered in the plan of care. Remote patient monitoring costs are also considered an allowable administrative cost. HHA visits must still be conducted on a face-to-face basis. Technology cannot substitute for an in-person visit and virtual visits are not counted as a home health visit for payment or eligibility.

In its home health technology commentary, CMS also noted that where physicians enter into contractual arrangements that meet the definition of auxiliary personnel at 42 C.F.R. § 410.26 with another provider/supplier type (e.g., an HHA, a qualified infusion therapy supplier or another entity to leverage auxiliary personnel under leased employment) in order to provide virtual visits for patients in their homes, these virtual visits will be considered as having been provided incident to a physician’s service, as long as appropriate supervision through audio/video real-time communications technology is provided when needed. Payment for such services would be made to the physician, who is then responsible for paying the contracted entity. These services would not be considered a home health service. This flexibility allows more patients to receive services at home via telehealth where there are no in-person visits that would trigger payment under the Home Health PPS. These services should not, however, generally be furnished during the same period as a home health episode of care. Physicians and other providers, however, should carefully review state law to ensure that the provision of such services does not require home health licensure under state law.

9. The Use of Technology Under the Medicare Hospice Benefit

During the PHE, CMS is amending the hospice regulations on an interim basis to specify that “when a patient is receiving routine home care, hospices may provide services via a telecommunications system if it is feasible and appropriate to do so to ensure that Medicare patients can continue receiving services that are reasonable and necessary for the palliation and management of a patient’s terminal illness and related conditions without jeopardizing the patient’s health or the health of those who are providing such services during the PHE for the COVID-19 pandemic.”

The use of technology must be documented in and the plan of care must continue to meet the requirements of 42 C.F.R. § 418.56, and must be tied to the patient-specific needs as identified in the comprehensive assessment and the measurable outcomes. As was the case with home health, virtual visits should not be reported on the claim with the exception of social work telephone calls. The costs of technology can be reported on the hospice’s cost report.

10. Telehealth and the Medicare Hospice Face-to-Face Encounter Requirement

A hospice physician or hospice nurse practitioner must have a face-to-face encounter with each Medicare hospice patient whose total stay across all hospices is anticipated to reach the third benefit period. CMS has amended 42 C.F.R. § 418.22(a)(4) on an interim basis to allow the use of telecommunications technology to perform such a face-to-face visit during the PHE when the visit is solely for the purpose of recertifying a patient for hospice services. Telecommunications technology means the use of audio and visual multimedia communications equipment with real-time interactive communication.

11. Modification of the Inpatient Rehabilitation Facility (IRF) Face-to-Face Requirement During the PHE

Patients in an IRF must receive at least three face-to-face rehabilitation physician visits per week throughout the patient’s stay in the IRF. For the duration of the PHE, CMS is allowing the face-to-face visit requirements of 42 C.F.R. §§ 412.622(a)(3)(iv) and 412.29(e) to be conducted via telehealth to safeguard the health and safety of Medicare beneficiaries and the rehabilitation physicians treating them.

12. Removal of the IRF Post-Admission Physician Evaluation Requirement During the PHE

A patient’s medical record at an IRF must contain a post-admission physician evaluation. However, during the PHE, CMS has removed the post-admission physician evaluation requirement through an amendment to 42 C.F.R. § 412.622(a)(4)(ii).

13. Clarification Regarding the IRF “Three-Hour” Rule

Under CMS standards, an IRF patient must generally be expected to actively participate in, and benefit from, an intensive rehabilitation therapy program on admission to the IRF. The standard generally requires at least three hours of therapy (physical therapy, occupational therapy, speech-language pathology or prosthetics/orthotics therapy) per day at least five days per week. While CMS has not waived these requirements, it has clarified that in cases where an IRF’s intensive rehabilitation therapy program is impacted by the PHE for the COVID-19 pandemic (for example, due to staffing disruptions resulting from self-isolation, infection or other circumstances related to the PHE), the IRF should not feel obligated to meet the standards in 42 C.F.R. § 412.622(a)(3)(ii), but should instead make a note to this effect in the patient’s medical record.

14. Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs)

To facilitate the ability of RHCs and FQHCs to utilize telecommunications technology when appropriate, on an interim basis, CMS expanded the services that can be included in the payment for HCPCS code G0071 to RHCs and FQHCs, and updated the payment rate to reflect the addition of these services. HCPCS code G0071 can be used for CPT codes 99421-99423. These virtual visits can be utilized for both established and new patients.

CMS has made an interim revision to allow RHCs and FQHCs to provide home health services in all areas typically served by an RHC and in the area that is included in the FQHC’s service area plan. RHCs and FQHCs are normally limited to providing home health services in areas with a shortage of HHAs. For the duration of the PHE, CMS is assuming that all areas typically served by an RHC and in the area that is included in the FQHC’s service area plan will have an HHA shortage.

15. Medicare Clinical Laboratory Fee Schedule: Payment for Specimen Collection for Purposes of COVID-19 Testing

The $5.00 nominal fee for specimen collection from certain individuals in skilled nursing facilities (SNFs) or by a laboratory on behalf of an HHA will, during the PHE, be increased to $23.46 for COVID-19 testing for homebound and nonhospital inpatients. Similarly, this fee is increased to $25.46 for individuals in an SNF or individuals whose samples will be collected by a laboratory on behalf of an HHA. Additionally, CMS noted that collecting specimens (including sputum samples) using nasopharyngeal or oropharyngeal swabs will require a trained laboratory professional, which is a condition to payment of the specimen collection fee. To identify specimen collection for COVID-19 testing, CMS established two new HCPCS codes – G2023 and G2024 (collections from an individual in an SNF or by a laboratory on behalf of an HHA).

With respect to travel fees during the PHE for nonhospital inpatients and homebound patients, CMS has clarified that paper documentation of miles traveled is not required and laboratories can maintain electronic logs with that information. In addition, the definition of homebound has been expanded in the same way described above with respect to HHAs.

16. Requirements for Opioid Treatment Programs (OTPs)

CMS has revised 42 C.F.R. §§ 410.67(b)(3) and (4) to allow OTPs to provide the therapy and counseling portions of the weekly bundles, as well as the add-on code for additional counseling or therapy, using audio-only telephone calls rather than via two-way interactive audio/video communications technology during the PHE if a client does not have access to two-way audio/video communications technology, provided all other applicable requirements are met.

17. Application of Teaching Physician and Moonlighting Regulations During the PHE for the COVID-19 Pandemic

During the PHE, the teaching physician physical presence requirements during the key portions of the service can be met through direct supervision via interactive telecommunications technology, as described in Section 6 above.

CMS has also amended the requirements applicable to the primary care exception. Under the amendment, preceptor physicians in primary care clinics will be able to bill for the services of residents if direct supervision is provided through interactive telecommunications technology. Similarly, residents performing interpretations of diagnostic tests, including radiology, or providing psychiatric services can be supervised through interactive telecommunications technology. CMS, despite the foregoing waivers, still requires on-site supervision for surgical, high-risk, interventional, endoscopic, anesthetic and complex procedures.

CMS also amended its moonlighting regulations to permit services provided by medical residents during the PHE to be billed as physician services even if the services are furnished in an inpatient area of a hospital at which they are training, provided the services are not related to the resident’s training program.

18. Psychiatric Hospital Requirements

CMS made a number of conforming changes with respect to psychiatric hospitals.

  • Clarifying that certain conditions of participation applied equally to all patients, not just Medicare patients.
  • Deleting a reference to § 482.12(c) and removing the term “independent” in the term “licensed independent practitioner” for consistency with other portions of the regulation in which the same change had been made.
  • Clarifying that nonphysician practitioners (NPPs) (and other qualified licensed practitioners), when acting in accordance with state law, their scope of practice and hospital policy, should have authority to practice to the fullest extent permitted by their education, training and qualifications allowable under state law.
  • Allowing NPPs to document progress notes of patients receiving services in psychiatric hospitals.
  • Allowing NPPs to operate within the scope of practice allowable under state law when ordering seclusion and restraint.
19. Innovation Center Models
  • 19.1 Medicare Diabetes Prevention Program (MDPP) – During the PHE, CMS is permitting (i) certain beneficiaries to obtain the set of MDPP services more than once per lifetime, (ii) an increase in the number of virtual make-up sessions and (iii) certain MDPP suppliers to deliver virtual MDPP sessions on a temporary basis. These changes are generally applicable to beneficiaries who were receiving MDPP services on March 1. The requirement for a beneficiary to attend the first core session will remain in effect.
  • 19.2 Comprehensive Care for Joint Replacement (CJR) Model – CMS is making two changes to the CJR model as a result of the PHE. First, to avoid disruptions, CMS extended CJR performance year 5 by three months such that the model will now end on March 31, 2021, rather than Dec. 31. Second, CMS modified the model policy for extreme and uncontrollable circumstances to ensure that it was applicable to the PHE.
  • 19.3 Alternative Payment Model (APM) Under the Quality Payment Program (QPP) – CMS recognizes that flexibilities may be necessary and appropriate in the context of APMs. No changes are being made at this time, but CMS indicated that it will consider undertaking additional rulemaking to amend or suspend APM QPP policies in light of the PHE.
20. Remote Physiologic Monitoring (RPM)

During the PHE, CMS is allowing providers to offer RPM services to both new and established patients. In addition, during the PHE, CMS will allow providers to obtain a beneficiary’s consent once annually, including at the time services are provided. Consent should be documented in the patient’s medical record. Finally, CMS clarified that RPM can be used for both chronic and acute conditions.

21. Telephonic E/M Services

CPT codes 98966-99968 and 99441-99443 relating to telephonic E/M visits have historically not been covered by Medicare because (1) these services are non-face-to-face and (2) the code descriptors include language that recognizes the provision of services to parties other than the beneficiary for whom Medicare does not provide coverage (for example, a guardian). To reduce exposure risks associated with the PHE, especially where two-way audio/video technology is required for telehealth, CMS will cover the above codes during the PHE for new and established patients, even where the code indicates that it is for established patients only. The codes are designated as CTBS “sometimes therapy” services. The services can be billed by providers other than physicians, including clinical social workers, clinical psychologists, physical therapists, occupational therapists and speech-language pathologists, when the visit pertains to a service that falls within the benefit category of those practitioners.

22. Physician Supervision Flexibility for Outpatient Hospitals – Outpatient Hospital Therapeutic Services Assigned to the Nonsurgical Extended Duration Therapeutic Services (NSEDTS) Level of Supervision

During the PHE, CMS changed the minimum level of supervision to general supervision for NSEDTS during the initiation of the service (e.g., until the patient is stable). After the initiation of the service period, general supervision continues to be the minimum level of supervision.

23. Application of Certain National Coverage Determination (NCD) and Local Coverage Determination (LCD) Requirements During the PHE for the COVID-19 Pandemic

To the extent an NCD or LCD (including articles) requires a face-to-face or in-person encounter for evaluations, assessments, certifications or other implied face-to-face services, CMS has waived those requirements for the duration of the PHE. It is, however, important to note that some face-to-face encounter requirements for power mobility devices are mandated by statute and are not changed by this waiver.

CMS also indicated that during the PHE it will not enforce the clinical indications for coverage across respiratory, home anticoagulation management and infusion pump NCDs and LCDs (including articles), allowing for maximum flexibility for practitioners to care for their patients.

Where NCDs and LCDs require a specific practitioner type or physician specialty to furnish a service, procedure or any portion thereof, CMS is allowing the chief medical officer or equivalent of the facility to authorize another physician specialty or other practitioner type to meet those requirements during the PHE. Additionally, to the extent NCDs and LCDs require a physician or physician specialty to supervise other practitioners, professionals or qualified personnel, CMS is allowing the chief medical officer of the facility to waive such supervision requirements during the PHE.

24. Change to Medicare Shared Savings Program (MSSP) Extreme and Uncontrollable Circumstances Policy

CMS previously extended the 2019 Merit-Based Incentive Payment System (MIPS) quality reporting deadline until April 30. CMS confirmed that this extended timeline also applies to MSSP accountable care organizations (ACOs). CMS revised 42 C.F.R. § 425.502(f) to remove the restriction limiting MSSP ACOs to utilizing the MSSP extreme and uncontrollable circumstances policy for disasters only when the quality reporting period is not extended. CMS explained that the extended timeline to submit data may not be sufficient to support ACOs and their participating providers and suppliers, who are focused on healthcare delivery during the PHE.

For performance year 2020 financial reconciliation, CMS will reduce the amount of an ACO’s shared losses by an amount determined by multiplying shared losses by the percentage of total months in the performance year affected by an extreme and uncontrollable circumstance (deemed to start March 1) and the percentage of assigned beneficiaries residing in an affected area (deemed to be 100%).

CMS is considering whether the current policy, which assigns an ACO the higher of the mean quality score across all ACOs and the ACO’s own quality score if the ACO is impacted by extreme and uncontrollable circumstances, will continue to be appropriate for performance year 2020 and beyond. Any changes would be made through future rulemaking. CMS also did not make any changes to the MSSP financial methodology, including benchmark updates.

25. Level Selection for Office/Outpatient E/M Visits When Furnished via Medicare Telehealth

On an interim basis, CMS revised its policy to specify that the office/outpatient E/M coding level selection for all office/outpatient E/M services, when furnished via telehealth (CPT codes 99201-99215), should be based on the medical decision-making level or time, with time defined as all the time associated with E/M services on the day of the encounter. CMS also removed its requirements regarding documentation of the history and/or physical exam in the medical record. Practitioners should, however, continue to document E/M visits as necessary to ensure quality and continuity of care. This PHE policy is similar to the policy that will apply to all office/outpatient E/M services beginning in 2021 under policies finalized in the CY 2020 PFS final rule.

26. Counting of Resident Time During the PHE for the COVID-19 Pandemic

Currently, there is no provision in the indirect medical education (IME) and direct graduate medical education (DGME) Medicare regulations allowing a hospital to claim a resident for IME or DGME if the resident is performing patient care activities within the scope of his or her approved program in his or her own home or in a patient’s home. During the PHE, CMS will permit a hospital that is paying the resident’s salary and fringe benefits for the time that the resident is at home or in the home of a patient that is already a patient of the physician or hospital, and is performing patient care duties within the scope of the approved residency program (and meets appropriate physician supervision requirements), to claim that resident for IME and DGME purposes.26. 

27. Addressing the Impact of COVID-19 on Part C and Part D Quality Rating Systems

CMS has recognized that the PHE will have a significant impact on the quality rating systems and has made a number of changes:

  • CMS will use last year’s Healthcare Effectiveness Data and Information Set (HEDIS) measures scores and ratings from the 2020 Star ratings (based on 2018 care) and Consumer Assessment of Healthcare Providers and Systems (CAHPS) measures data scores and ratings from the 2020 measure-level Star ratings for the 2021 Star ratings. CMS, however, likely will not make other changes to the measurement period and data for other measures if there is no PHE risk associated with collecting the required data. If the PHE prevents CMS from validating data or there are systemic measure data integrity issues, CMS will replace the deficient 2019 data with the measure-level Star ratings and scores from the 2020 Star ratings.
  • 2021 Star rating measures will be calculated using prior years’ data that was not impacted by the PHE. CMS will make similar accommodations for the 2021 and 2022 Part C and Part D Star ratings.
  • To allow plans to focus on providing care during the PHE, health plans will not be required to submit HEDIS 2020 data covering the 2019 measurement year. Rather, they can use HEDIS data collected for their internal quality improvement efforts.
  • Likewise, plans will not be required to submit 2020 CAHPS survey data. Instead, Part C and Part D plans can use any CAHPS survey data collected for their internal quality improvement efforts.
  • Finally, CMS postponed to late summer the Health Outcomes Survey process administered by the National Committee for Quality Assurance.
28. Changes to Expand Workforce Capacity for Ordering Medicaid Home Health Services; Medical Equipment, Supplies and Appliances; and Physical Therapy, Occupational Therapy or Speech-Language Pathology and Audiology Services

CMS amended 42 C.F.R. § 440.70 to allow licensed practitioners practicing within their scope of practice (such as, but not limited to, nurse practitioners and physician assistants) to order, during the PHE, home health nursing and aide services; medical supplies, equipment and appliances; and physical therapy, occupational therapy or speech-language pathology and audiology services covered under § 440.70(b). Pre-waiver Medicaid regulations required that an individual’s physician must order home health services as part of a patient’s written plan of care.

29. Origin and Destination Requirements Under the Ambulance Fee Schedule

CMS amended the list of destinations for which an emergency or nonemergency ground ambulance may provide services to a beneficiary during the PHE. Permissible ambulance transports during the PHE include transports from the point of origin to a destination that is equipped to treat the condition of the patient consistent with any applicable state or local emergency medical services protocol. Such destinations include, but are not limited to, alternative sites determined to be part of a hospital, critical access hospital or skilled nursing facility; community mental health centers; FQHCs; RHCs; physician offices; urgent care facilities; ambulatory surgical centers; any location furnishing dialysis services outside an ESRD facility when an ESRD facility is not available; and the beneficiary’s home. Based on these protocols, a patient suspected of having COVID-19 who requires a medically necessary transport may be transported to a testing facility to be tested for COVID-19. Medical necessity requirements have not been waived.

30. MIPS Updates

30.1 MIPS Improvement Activities Inventory Update

CMS added a new improvement activity to the Improvement Activities Inventory for the CY 2020 performance period to encourage clinician participation in a COVID-19 clinical trial utilizing a drug or biological product to treat a patient with a COVID-19 infection.

30.2  MIPS Application for Reweighting Based on the PHE

CMS recognizes that not all MIPS-eligible clinicians will be covered by its application of the MIPS automatic extreme and uncontrollable circumstances policy for the 2019 performance year. CMS extended the deadline to submit an application for reweighting based on extreme and uncontrollable circumstances related to the COVID-19 pandemic from Dec. 31, 2019, to April 30, or a later date that CMS may specify. The April 30 deadline mirrors the MIPS data deadline submission extension.

Additionally, CMS modified its existing policy to provide that data submission by an MIPS-eligible clinician, group or virtual group would not effectively void an application for reweighting the performance categories based on the COVID-19 pandemic and that the performance category for which data was submitted would still be reweighted, subject to CMS approval of the application.

31. Inpatient Hospital Services Furnished Under Arrangements Outside the Hospital During the PHE for the COVID-19 Pandemic

CMS stated that for services provided for discharges for patients admitted to the hospital during the PHE beginning March 1, if routine services (e.g., inpatient beds and nursing services) are provided under arrangements outside the hospital to its inpatients, these services are considered as being provided by the hospital, provided that the hospital retains control and responsibility for the use of the hospital’s resources for treating such patients.

32. Advance Payments to Suppliers Furnishing Items and Services Under Part B

CMS is modifying 42 C.F.R. § 421.214 to provide greater flexibility to providers to request advance payments. Advance payments will not be automatically made; they must be requested by a provider. It is important to note, however, that there are some differences between this provision and the advance payments permitted under § 3719 of the CARES Act.

A new subsection was added to permit advance payments during a PHE or during a presidentially declared disaster if (1) the Medicare contractor is unable to process the claim timely, or is at risk of being untimely in processing the claim, or (2) if the supplier has experienced a temporary delay in preparing and submitting bills to the Medicare contractor beyond its normal billing cycle.

Advance payments had been limited to 80% of the anticipated payment. CMS has increased this limit to 100% of the anticipated payment during the PHE.

Finally, CMS, as provided in the CARES Act, added a new provision making providers in bankruptcy ineligible for advance payments.

Utilizing flexibilities allowed by the Administrative Procedures Act and SSA, CMS determined that it would be contrary to the public interest to delay the effectiveness of the rule for normal publication and notice periods. The rule is effective March 1.

Authorship Credit: Kristen Woodrum, Robert Wolin and Kaitlyn Appleby

Baker & Hostetler LLP publications are intended to inform our clients and other friends of the firm about current legal developments of general interest. They should not be construed as legal advice, and readers should not act upon the information contained in these publications without professional counsel. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you written information about our qualifications and experience.

Related Industries

Related Emerging Issues