Experts Provide Update on Medicare Waivers and Other Regulatory Provisions During COVID-19
In a recent episode of Ophthalmology Off the Grid, cohosts Gary Wörtz, MD, and Blake Williamson, MD, MPH, spoke with Allison Shuren, JD, MSN; Paul Rudolf, MD, JD; and Thomas Gustafson, PhD, to discuss a variety of regulatory topics, including the “Hospitals Without Walls” waiver, Medicare telehealth waivers, and advanced payments from CMS.
The Hospitals Without Walls waiver is a Medicare law that allows communities to take advantage of local ambulatory surgery centers (ASCs) that have ceased performing elective surgeries and is a potential source of revenue for ASCs that would otherwise be shut down.[1] There are two options for participation in this program.
The first, Ms. Shuren explained, “is what we call under arrangements…A contract between a hospital and [another health care facility]—in this instance it could be an ASC, it could be a clinic, it can be a diagnostic testing facility—by which an entity is performing services on behalf of the hospital for hospital patients.” She went on to note that in this arrangement, the hospital is responsible for submitting the claim for the service(s) and will then pay the facility via a contractual arrangement. In essence, “It is giving the hospital the ability to go out and contract with almost [any facility] that has space or services that [the hospital] need[s] in order to meet their surge requirements.” Speaking about the potential negative aspect of these arrangements, Ms. Shuren stated, “The counter to this is that these kinds of financial relationships raise issues under the kickback statute and the Stark Law…Medicare…has basically waived the Stark Law requirements.”
The second option is that an ASC can temporarily enroll in Medicare as a hospital. Ms. Shuren, providing further explanation of this option, said, “this is an all in option unlike under arrangements…The ASC basically goes away. Your NPI is deactivated. You are enrolled in the Medicare program as a hospital and you are acting as a hospital, either until you cease, or the Secretary of the Department of Health and Human Services (HHS) terminates the national public health emergency.” Whereas the under arrangements option is a standing Medicare law, this option is available only while the national public health emergency is active.
Ms. Shuren also noted that because hospitals are beholden to state laws, “this option comes with the caveat that you essentially are working with your state and local health care departments who have determined that there is a need for expansion and that having you enroll as an ASC makes sense because quite frankly, they’re going to have to waive licensing you as a hospital. There’s going to be no time to do that.”
Her advice for providers interested in this option is to make contact with your local state health department to inquire about their needs. An ASC seeking to enroll in Medicare as a hospital must meet hospital conditions of participation—unless the condition has been waived under the national public health emergency. ASCs temporarily enrolled as hospitals will be paid at hospital rates and must submit claims as a hospital. If the ASC’s billing system in not capable of doing this, it would have to contract out to a third party in order to submit claims. Ms. Shuren stated, “At this point, Medicare has not said that they would accept paper claims. But even the paper claims are different. They’re not the CMS 1500…It would be CMS 1450s or UB-04s that would need to be filed, which is just a completely different situation and different setup for you.” One final factor to consider is that unless they have been resolved through the normal survey process, ASCs that have had immediate jeopardy findings in the past 3 years are not eligible to participate in this option.
Ms. Shuren wrapped up her overview of the Hospitals Without Walls waiver with a few final thoughts: “There is the possibility that your ASC could have a state survey visit once you convert to a hospital, but Medicare has already said that, from their perspective, those state surveys should focus on infection control and proper use of personal protective equipment (PPE) as opposed to a full hospital state survey, which would be a nightmare; Once the national public health emergency is terminated by the HHS, your hospital number will automatically deactivate and your ASC NPI will automatically be reactivated.”
The discussion also included an overview of the Medicare telehealth waivers. Dr. Rudolf provided a brief overview of each telehealth regulation that has been waived (for the duration of the COVID-19 public health emergency). As Dr. Rudolf said, “the waivers affect the ability to perform telehealth services…those services are now defined to include [smart] phones…until now, using those phones to do telemedicine has not been allowed.”
Under the waivers, Skype, FaceTime, Google Hangouts, Facebook Messenger, and Whatsapp are acceptable modalities for telehealth. TikTok, Facebook Live, chat rooms, and twitch are disallowed modalities.
Other services affected by the telehealth waivers are (1) virtual check-ins, which have visual component; (2) e-visits, which are online and have no visual component; and (3) telephone calls. These services can be provided to both new and established patients and there will be no sanctions if physicians reduce or waive copayments. Dr. Rudolf also noted that, “there’s also a relief under some of the HIPAA requirements because, as you know, some of these modalities— Skype, Google Hangouts, FaceTime—do not comply with all HIPAA regulations…[and] violating those regulations has also been waived, so you don’t have to worry about that.”
Dr. Gustafson spoke about advanced payments for Medicare. As he puts it, “advanced payments relate to what can go to part B suppliers…both ASCs and physician practices both qualify as suppliers…the payment amounts can be up to 100% of what your historical claims were over past 3 month period.” Dr. Gustafson noted that it is not clear exactly which 3 months they’re going to look at. “The idea behind the advanced payments is that [CMS] is making an advanced payment that is essentially to be paid back by offset against incoming claims in the future.” He also emphasized that there is no provision for forgiveness of advanced payments, noting that they are essentially loans.
It is important to be cognizant of the timeline of the advanced payment, according to Dr. Gustafson, “On day one you apply for a claim and then [for]120 days you will be free and clear. Then Medicare will start offsetting claims payments against the loan and they’re going to be looking for the payback to be completed by 210 days.” The 210 day period is interest-free. If a balance remains after this 210 day period, CMS will look for payment. If the supplier does not make a direct payment, the outstanding balance may be treated as an overpayment, with interest applied.
- Trump administration makes sweeping regulatory changes to help U.S. healthcare system address COVID-19 patient surge. CMS. https://www.natlawreview.com/article/cms-hospitals-without-walls-waiver-looking-to-ascs-to-provide-relief. March 30, 2020. Accessed April 7, 2020.