CMS Waivers Under COVID-19: An Overview of Compliance Considerations – Part 1

May 3, 2020 Marti Arvin

The Center for Medicare and Medicaid Services (CMS) has issued a number of waivers of certain regulatory obligations for multiple segments of the healthcare industry. These waivers modify the compliance obligations in a number of ways. This article will focus on some of the waivers issued for teaching hospitals, teaching physicians, medical residents, and hospitals as part one of a three-part series regarding the waivers for this industry segment.

Waivers for Teaching Hospitals and Teaching Physicians

Anyone involved with academic medical center compliance is familiar with the teaching physician documentation rules. It is likely they have spent years training teaching physicians regarding their obligation to be physically present for the key portions of any service performed with a resident if they wish to bill for the service. The waiver issued by CMS relieves that physical presence obligation for some services. The teaching physician is permitted to be present virtually through audio/video real-time communication technology. This will be mostly for evaluation and management services and minor procedures. The waiver does not apply to surgical, high-risk, interventional, or other complex procedures. It also does not apply to endoscopic procedures or anesthesia services.

CMS also expanded a change made in the 2020 Physician Fee Schedule (PFS) rule regarding the use of documentation made in the medical record by others. In the final PFS rule CMS indicated that physicians, physician assistants (PA), and advanced practice nurses could simply review and verify, by signing and dating, information in the medical record made by other members of the medical team. This meant those practitioners did not need to re-document the information. During the public health emergency (PHE) this provision was expanded to allow any clinician who can furnish and bill a professional service under the Medicare regulations to review and verify the documentation of others on the medical team rather than re-document their own note. These waivers are intended to free up time for healthcare professionals to provide patient care.

Compliance Considerations Teaching Hospitals and Teaching Physicians

However, there are some of the compliance considerations to think about. Consideration should be given to how a teaching physician will document participation in the service by real-time audio/video communication technology. It will also be necessary to ensure that once the PHE is lifted, clinicians understand they must return to the pre-PHE physical presence and documentation requirements.

CMS modified the method for counting resident time when calculating direct graduate medical education (DGME) and indirect medical education (IME) payments. Prior to the PHE, resident time spent at home or at a patient’s home was not counted for purposes of DGME or IME payments. With the waiver during the PHE that time can now be counted. There is still a requirement for appropriate physician supervision and the resident must be engaged in activities within the scope of the residency program.

Compliance professionals must consider how the resident’s time will be tracked, who will ensure appropriate physician supervision, and how it will be determined that the activities were within the approved residency program. Compliance may also wish to audit the resident time counted towards the DGME and IME payments once the PHE is lifted to ensure no time at home or in a patient’s home was counted after the PHE was lifted.

Waivers for All Hospitals

There has been a waiver issued for medical staff privileging that permits hospitals to allow a clinician to continue practicing even if privileges have expired and the full board has not reviewed and approved the renewal. This waiver also allows the hospital to permit a physician who as applied for privileges to practice at the hospital even though the full board has not approved the application.

CMS also issued a waiver for the conditions of participation (COP) requirement that all inpatients must be under the care of a physician. During the PHE, inpatients may be under the care of a PA or nurse practitioner (NP), so long as that is consistent with the state’s emergency preparedness or pandemic plan. This waiver does not change the requirement that the admission order for an inpatient is to be written by a provider licensed and privileged to write such orders.

Under the CMS regulations, a certified registered nurse anesthetist (CRNA) can only provide anesthesia services under the medical direction of a physician. CMS has waived this requirement under the PHE. Whether to require CRNA supervision has been left of the discretion of the hospital or ambulatory surgery center (ASC) and state law requirements.

More Compliance Considerations of CMS Waivers for all Hospitals

The compliance staff should be thinking about a few things for these waivers. Compliance may consider auditing the medical staff privileging to ensure that any practitioner allowed to practice before full board approval of their renewal or new application does eventually get such approval. There might be a need to ensure that if a PA or NP oversaw the care of inpatients while the PHE declaration was in place, those patients were transitioned back to the care of a physician once it was lifted. Compliance should also ensure that PAs and NPs were not writing admission orders for patients unless they were authorized to do so under their state scope of practice and privileged to do so by the facility.

CMS has also written waivers to allow patients to be cared for in a variety of different ways. Under the Medicare regulations, hospitals must provide care in a department of the hospital. Under waivers during the PHE, hospitals are permitted to have patients in temporary expansion sites such as hotels or community facilities. This can support the hospital’s ability to separate patients who are positive for COVID-19 from those that are not. Hospitals can provide room and board, nursing care, and other hospital services in the expansion locations. Hospitals can provide both inpatient and outpatient services at these temporary expansion sites. The hospital is still required to meet all COP requirements in place during the PHE.

Waiver for Ambulatory Surgery Centers

There is also a waiver that would permit an ASC, already enrolled as a Medicare provider, to temporarily enroll in Medicare as a hospital. This would permit the ASC to provide hospital services. ASCs can do this by contacting the Medicare Administrative Contractor for their jurisdiction and completing an attestation.

Compliance Considerations for ASC Acting as a Hospital

Like with all the waivers these expanded hospital sites have things a compliance professional should be thinking about. There should be a process to ensure there is appropriate oversight of a hospital’s expansion site and that patient are receiving appropriate levels of care. Documenting, billing and coding for hospital services is different from services performed at an ASC. So, if an ASC is converted to a hospital, there should be a process to review the documentation, billing, and coding for services provided. Ideally, the review would be contemporaneous to the service being performed. If it cannot be done contemporaneously, then an audit of the hospital services billed by the ASC as a temporary hospital should be performed once the PHE is lifted.

This is not an all-inclusive list of the compliance considerations for the waivers discussed thus far. These are just some of the things compliance professionals may wish to think about. This is a highly complex time with changes occurring frequently. There are a number of additional waivers that CMS has issued for the healthcare industry. Most of the remaining waivers that have been issued for hospitals and more of the compliance considerations associated with them will be addressed in the next segments of this blog post series.

Additional Resources

About the Author

Marti Arvin

Marti Arvin, ExecutiveAdvisor for CynergisTek brings more than three decades of operational and executive leadership experience in the fields of compliance, research and regulatory oversight in academic medical and traditional hospital care settings to her position in CynergisTek. Arvin leads strategic business development around compliance services and utilizes her industry recognized expertise in health research to inform the development of privacy and security services to meet that communities underserved needs. She is a nationally recognized speaker and contributor to the thought leadership around healthcare compliance and research, and contributes to CynergisTek’s industry outreach and educational programs. Arvin has extensive experience in building and managing compliance and research programs. Arvin previously served as the Chief Compliance Officer for Regional Care Hospital Partners and the UCLA Health System and David Geffen School of Medicine. She has a legal background from obtaining her J.D. and holds CHC-F, CCEP-F, CHRC and the CHPC certifications. She is recognized as an expert on compliance and privacy issues from her published articles, lectures and presentations at national conferences. She was a board member to the Health Care Compliance Association between 2008 and 2011 and was on the Compliance Certification Advisory Board for over eight years. She also served on the certification committee for the CHC, CHC-F, CCEP, CCEP-F, CHRC and CHPC.

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