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Medicare Compliance & Reimbursement

Regulations:

Bolster Your Post-COVID Policies With This Federal Insight

Published on Mon Feb 20, 2023

Stay tuned: Watch out for more changes as policies are assessed.

Over the last couple of years, the feds have churned out legislative bandaids, policy turnarounds, and waivers aplenty to address the pandemic. If the sheer volume of COVID-inspired regulatory output has your practice confused about which flexibilities are set to expire when the public health emergency (PHE) ends, you’re not alone.

Now: On Feb. 1, the Centers for Medicare & Medicaid Services (CMS) updated its “CMS Flexibilities to Fight COVID-19” documents for different provider types and programs in light of the PHE sunsetting on May 11. The updates, which include when specific flexibilities will expire, also offer helpful links to policy histories and legislative actions that may have extended a waiver beyond the PHE end date.

The offerings focus on the following provider types and programs, according to CMS guidance:

  • Physicians and Other Clinicians
  • Hospitals and CAHs (including Swing Beds, DPUs), ASCs and CMHCs
  • Teaching Hospitals, Teaching Physicians and Medical Residents
  • Long Term Care Facilities (Skilled Nursing Facilities and/ or Nursing Facilities)
  • Home Health Agencies
  • Hospices
  • Inpatient Rehabilitation Facilities
  • Long Term Care Hospitals & Extended Neoplastic Disease Care Hospitals
  • Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs)
  • Laboratories
  • Medicare Shared Savings Program
  • Durable Medical Equipment, Prosthetics, Orthotics and Supplies
  • Medicare Advantage and Part D Plans
  • Ambulances
  • End Stage Renal Disease (ESRD) Facilities
  • Participants in the Medicare Diabetes Prevention Program

Plus: On Feb. 9, the Department of Health and Human Services (HHS) issued a letter to state governors announcing the final extension of the COVID PHE. The renewal went into effect on Feb. 11 and was accompanied by a fact sheet titled the “COVID-19 Public Health Emergency Transition Roadmap.”

“Addressing COVID-19 remains a significant public health priority for the Administration, and over the next few months, we will transition our COVID-19 policies, as well as the current flexibilities enabled by the COVID-19 emergency declarations, into improving standards of care for patients,”

HHS explains in the fact sheet. Additionally, HHS offers a quick review of what flexibilities won’t be affected, how it is continuing to monitor policies and whether to make them permanent, and what will ultimately change at the federal healthcare level when the PHE ends.

Expect Medicare Guidance to Continue to Evolve

In the CMS fact sheet introductions, the agency explains its “cross-cutting initiative,” which is a three-prong approach to evaluating waivers and flexibilities as the nation transitions to a post-COVID PHE landscape. According to CMS, the three concurrent phases include:

1. Analyzing whether to continue with certain blanket waivers and if ending them would present barriers to communities.

2. Evaluating which flexibilities would prove “most useful” in future PHEs.

3. Collaborating with the healthcare industry, other federal agencies, and stakeholders on future PHEs.

“As CMS identifies barriers and opportunities for improvement, the needs of each person and community served will be considered and assessed with a health equity lens to ensure our analysis, stakeholder engagement, and policy decisions account for health equity impacts on members of underserved communities and health care professionals disproportionately serving these communities,” the fact sheets note.

With 16 separate fact sheets, CMS offers a comprehensive look at what’s been extended and what’s set to expire across the various parts of Medicare. Here are a few examples from the “Physicians and Other Clinicians” fact sheet:

Telehealth: The Medicare telehealth expansion has been a boon to providers during the pandemic — and the waivers and flexibilities associated with the PHE have been the subject of much discussion at every level of government and across the healthcare industry. As part of the COVID PHE, Medicare beneficiaries “have been able to receive Medicare telehealth and other communications technology-based services wherever they are located;” moreover, providers were able to furnish these services to both new and established patients, the fact sheet says.

The Consolidated Appropriations Act, 2023, extended specific Medicare telehealth waivers through Dec. 31, 2024 (see Medicare Compliance & Reimbursement, Vol. 49, No. 1).

RPM: With the current 1135 waiver, clinicians are able to bill for remote patient monitoring (RPM) services furnished for both new and established patients — that is set to expire when the PHE ends. Post-PHE, providers will need to have an established relationship with patients before they can render RPM services to them.

Stark Law: On March 30, 2020, the feds instituted a variety of blanket waivers to address financial relationships and referrals under the Physician Self-Referral Law or Stark for short (see Medicare Compliance & Reimbursement, Vol. 46, No. 9). “During the PHE, CMS permitted certain referrals and the submission of related claims that would otherwise violate the Stark Law, if all requirements of the waivers were met,” the fact sheet reminds. But, “when the PHE ends, the waivers will terminate and physicians and entities must immediately comply with all provisions of the Stark Law,” warns CMS.

Resources: You can review the various provider- and program-specific fact sheets from CMS at www.cms.gov/coronavirus-waivers and find the HHS roadmap at www.hhs.gov/about/ news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html.

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