June 5, 2020

Updates in the CMS Second Interim Final Rule in the Wake of COVID-19

On April 30, 2020, the Centers for Medicare and Medicaid Services (“CMS”) issued a Second Interim Final Rule in response to the COVID-19 Public Health Emergency (“PHE”).  Medicare and Medicaid, Basic Health Program, and Exchanges; Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency and Delay of Certain Reporting Requirements for the Skilled Nursing Facility Quality Reporting Program, Fed. Register (https://www.federalregister.gov/documents/2020/05/08/2020-09608/medicare-and-medicaid-programs-basic-health-program-and-exchanges-additional-policy-and-regulatory).  This new rule became effective on May 8, 2020.  This interim rule provides more flexibility to health care providers and services to combat the COVID-19 pandemic.  Its goals include expanding the healthcare workforce by removing barriers for physicians, nurses, and other clinicians; ensuring local hospitals and health systems have the capacity to handle COVID-19 patients; and increasing telehealth access so that Medicare patients can continue to receive care, without risking COVID-19 exposure.  This rule is intended to last the duration of the PHE; however, it is unknown how the rule will be phased out once the PHE ends.

One of the significant goals of the Second Interim Final Rule is to make getting tested easier and more accessible for Medicare and Medicaid beneficiaries.  Under the new waivers and rules, Medicare is not requiring an order from a treating physician or other practitioner for a COVID-19 test to be covered by Medicare.  A COVID-19 test can be ordered by any healthcare professional authorized to do so under the relevant state law.  Physician assistants, nurse practitioners, and clinical nurse specialists can furnish the tests directly and supervise the performance of diagnostic tests.  To help facilitate expanded testing, Medicare and Medicaid are covering serology testing.  These tests detect antibodies produced in response to COVID-19.  FDA-authorized COVID-19 serology tests will fall under the Medicare benefit category of diagnostic laboratory tests.

Furthermore, COVID-19 tests administered in a non-office setting and FDA-authorized self-collected tests  will be covered.  This waiver will continue past the PHE and be applicable during any subsequent period of active surveillance as part of strategies to detect recurrence of the virus.  Typically, to be reimbursed by Medicaid, a test needs to be ordered by a treating physician, the test must have been done in an office, and the laboratory must have met certain requirements.  When a test is furnished without a physician or nonphysician practitioner’s order, the laboratory conducting the test is required to directly notify the patient about the results of the test.

CMS is taking multiple steps to allow hospitals to provide services in other healthcare facilities and sites that are not part of the existing hospital.  This includes temporary expansion sites such as parking lots, converted hotels, and homes to provide for continuing patient needs.  Prior to this interim rule, hospitals were required to provide services within their existing departments.  As part of this initiative to provide hospitals with more flexibility, teaching hospitals can increase the number of COVID-19 beds “while receiving stable, predictable Medicare payments.”  Trump Administration Issues Second Round of Sweeping Changes to Support U.S. Healthcare System During COVID-19 Pandemic, CMS.gov (https://www.cms.gov/newsroom/press-releases/trump-administration-issues-second-round-sweeping-changes-support-us-healthcare-system-during-covid).  Teaching hospitals can also send residents, on an emergency basis, to hospitals where they are most needed without regard to the financial considerations of Graduate Medical program education.  Teaching physicians can be paid for audio/visual supervision of residents at their standard rates for such services.

While there has been an increase in covered telehealth services, CMS is broadening payment for audio-only telephone services to behavioral health and patient education services.  Additionally, CMS is increasing payments for telephone visits to match the similar office or outpatient visits, regardless of where the patient is located.  These payments will be retroactive to March 1, 2020.  For the duration of the PHE, CMS is waiving limitations on the types of clinical practitioners that can provide Medicare telehealth services.  Previously, only doctors, nurse practitioners, physician assistants, and certain others could provide telehealth services.  Now, physical therapists, occupational therapists, and speech language pathologists may provide telehealth services.  CMS is updating its approved telehealth services on a sub-regulatory basis.  This will allow practitioners to use telehealth services more broadly than before. 

The Second Interim Final Rule vastly increases providers ability to provide continued treatment for patients.  It also increases services that can be covered by Medicaid and Medicare so that patients can continue to receive treatment while staying safely at home.

For more information, please contact David R. Ross, Esq., Senior Shareholder, at dross@oalaw.com. Associate Attorney Marina Wai Yee Chu, Esq. contributed to this article.