Health Law Monitor
UPDATED Ongoing Efforts to Ease Burdens on Providers in the Wake of COVID-19
March 26, 2020
As our health care providers push all of their resources into fighting a global pandemic and keeping our communities safe, regulators of the industry are taking steps to ease certain administrative burdens on these providers. Such actions are consistent with the guidance we previously reported related to obligations under HIPAA and EMTALA and the expansion of Telehealth. These updates are available on our COVID-19 resource page.
Targeted Infection Control Surveys (Added 3/26/2020)
On March 23rd CMS announced that it began working with the CDC to identify areas where COVID-19 is projected to strike next and is targeting their inspections accordingly. CMS Federal surveyors will begin conducting the targeted Infection Control surveys using a revised Infection Control protocol specifically adapted to prevent the transmission of coronavirus. State survey agencies will also be using the same guidance as their federal counterparts, recognizing that some state agencies will be unable to perform surveys due to efforts to fulfill other state public health activities.
The CMS survey guidance directs that for three weeks starting March 20, 2020 (prioritization period), only the following surveys will occur:
- Complaint and facility-reported incident surveys that may trigger any possible immediate jeopardy (IJ) related deficiencies;
- Targeted infection control surveys identified through collaboration with the Centers for Disease Control and Prevention (CDC) and HHS Assistant Secretary for Preparedness and Response (ASPR);
- Any revisits necessary to resolve pending IJ deficiencies; and
- Initial certification surveys authorized in accordance with current guidance and prioritization.
Pursuant to the CMS order, the following surveys should NOT occur between now and April 10, 2020:
- Standard surveys for long-term care facilities, hospitals, home health agencies (HHAs), intermediate care facilities for individuals with intellectual disabilities and hospices; and
- Revisit surveys that are not associated with an immediate jeopardy finding.
CMS also provided a voluntary self-assessment for nursing homes to perform to ensure they meet federal requirements – like screenings for staff, proper staff hygiene, and precautions for limited the spread of contagious illness.
Medicare Enrollment Relief (Added 3/26/2020)
CMS has established toll-free hotlines for physicians and non-physician practitioners to enroll and receive temporary Medicare billing privileges. Certain screening requirements are also waived including criminal background checks associated with finger-print based criminal background checks (FCBC) and site visits. All revalidation actions have been postponed.
For other providers and suppliers, CMS is expediting pending or new applications (7 days for clean online applications and 14 days for clean paper applications). The following screening requirements are also waived: application fees, criminal background checks associated with FCBC, and site visits. All revalidation actions have been postponed.
CMS has made additional guidance available for providers.
State Licensure of Healthcare Providers (Updated 3/26/2020)
To expand access to qualified healthcare providers during the COVID-19 epidemic, many state licensure boards are temporarily suspending portions of their licensing requirements that would otherwise restrict providers from practicing. Examples include allowing providers who hold a valid, unrestricted license in another state to practice without obtaining a license in a particular state; allowing retired doctors to return to practice even if their license is inactive; and extending the renewal date for those providers with an existing license set to expire in the near future.
Providers should contact counsel to determine what efforts have been made by their respective state licensing boards and any state in which they want to provide relief.
Colorado – Emergency Measures for Healthcare Professional Licensing/Additional Guidance
Indiana – Executive Order
Kentucky – Board of Medical Licensing / Board of Nursing
Ohio – Physicians and Physician Assistants – Email license@med.ohio.gov / Board of Nursing
Pennsylvania – Application for a Temporary License for Physicians / Nurses
West Virginia – Governor’s Initial Order / Updated Order (Revising Physician Details and Adding APRNs and RNs)
The Joint Commission (TJC) Surveys
Last week, TJC with the support of the Centers for Medicare & Medicaid Services (“CMS”) suspended all regular, on-site surveying activity of hospitals and other health care organizations. TJC expects the survey delays to be on hold at least until the end of April but are planning for longer periods of suspension. During this time, a small number of surveys related to high-risk situations may continue.
Organizations with accreditation set to expire during this time-period will be extended without disruption to their accreditation status, and CMS has assured that Medicare payment status will not be affected.
TJC recommends that hospitals, nursing homes, and other facilities have a plan for managing the increased numbers of infectious patients (Infection Control Standard 01.06.01). Hospitals should review their infection control and emergency management plans and assess whether they can rapidly and reliably implement their plans as designed or if modifications are necessary. TJC is working on plans to redirect TJC resources to best assist customers during this constantly changing time.
CMS Quality Payment Program Reporting
CMS announced unprecedented relief for the clinicians, providers, and facilities participating in Medicare quality reporting programs. CMS is granting exceptions from upcoming reporting requirements.
Provider programs
The Merit-based Incentive Payment System (MIPS) 2019 Data Submission deadline is extended from March 31, 2020 to April 30, 2020. MIPS eligible clinicians who have not submitted any MIPS data by April 30, 2020 will qualify for the automatic extreme and uncontrollable circumstances policy and will receive a neutral payment adjustment for the 2021 MIPS payment year.
Hospital programs
CMS made changes impacting 11 programs including the Ambulatory Surgical Center Reporting Program (ASC), the Hospital-Acquired Condition Reduction Program, the Hospital Inpatient and Outpatient Quality Reporting Programs, and the Hospital Value-Based Purchasing Program. For all of these programs, 2019 Data Submission deadlines for October 1, 2019 – December 31, 2019 (Q4) data submission is optional. If Q4 is submitted, it will be used to calculate the 2019 performance and payment (where appropriate). If data for Q4 is not submitted, the 2019 performance will be calculated based on data from January 1, 2019 – September 30, 2019 (Q1-Q3) and available data. For 2020, CMS will not count data from January 1, 2020, through June 30, 2020 for performance or payment programs. No data needs to be submitted for this time-period.
Post-acute care programs
CMS also extended or rescinded data submission for the following quality reporting programs: home health, hospices, inpatient rehab facilities, long-term care hospitals, and skilled nursing facilities. For these providers, Q4 2019 data submission is optional and Q1 and Q2 of 2020 will not be counted.
CMS noted that it will continue monitoring the developing COVID-19 situation and will assess options to bring additional relief to clinicians, facilities, and their staff so they can focus their attention on caring for patients. More details are available through CMS.
State Modification of Medicaid Eligibility Requirements (Updated 3/26/2020)
CMS announced that states combating the coronavirus can modify Medicaid eligibility requirements and take steps to ensure the elderly or those with disabilities can be served in their homes. CMS is providing opportunities for states to experiment with how they deliver and pay for healthcare services by requesting waivers under Section 1135 of the Social Security Act. CMS provided a checklist for states seeking such waivers to modify requirements under the Medicare, Medicaid, and Childrens health Insurance Program to ensure they can sufficiently address the pandemic. As of March 26, 2020, CMS had approved 23 state Medicaid waiver requests.
Examples of waivers available under Section 1135 of the Act include:
- temporary suspension of prior authorization requirements;
- extension of existing authorizations for services through the end of the public health emergency;
- modification of timing requirements for state fair hearing and appeals;
- relaxed provider enrollment to allow faster enrollment of out -of-state or other new providers to expand access to care; and
- relaxed public notice and submission deadlines for certain COVID-19 focused Medicaid state plan amendments.
CMS also drafted a template for states seeking changes to their home and community-based services waiver operations. States can submit a single application to make temporary changes to their programs as part of the Disaster State Plan Amendment.
SAMHSA Part 2 Guidance
The Substance Abuse and Mental Health Services Administration (SAMHSA) issued guidance to ensure that substance use disorder treatment services are uninterrupted during the public health emergency. The CDC guidelines on social distancing and related orders being issued by state and local governments has resulted in the closure of many physical locations and an increased need for telehealth services. Many providers without adequate telehealth technology are offering telephonic consultations to patients, which may limit a provider’s ability to obtain written patient consent for disclosure of substance use disorder records.
If a provider determines that a medical emergency exits, the prohibitions on the use and disclosure of patient identifying information under 42 C.F.R. Part 2 would not restrict disclosure without written consent in these situations. Under these circumstances, disclosure is permissible to medical personnel without patient consent to the extent necessary to meet a bona fide medical emergency in which the patient’s prior informed consent cannot be obtained. Information disclosed to medical personnel who are treating such a medical emergency may be re-disclosed by the personnel for treatment purposes as needed.
It is important to remember that providers must make their own determination on whether a bona fide medical emergency exists, and adequately document that determination when disclosure is made to provide needed treatment to patients.
We will continue to update this information as it becomes available.