Hallway in a hospitalOn Friday, 3/13/20, CMS issued blanket 1135 waivers that impact acute care hospitals as a result of President Trump’s declaration of a state of an emergency due to COVID-19. The blanket waivers temporarily allow acute care hospitals to relocate acute care inpatients to their excluded distinct part units (DPUs), and patients from the DPUs to the acute care hospital to respond to the COVID-19 emergency. In addition, to these CMS blanket waivers, on 3/13/20, the Texas Hospital Association (THA) requested additional waivers from CMS and the Texas Health and Humans Services Commission (HHSC) from other federal and state requirements. EMTALA has also issued guidance on setting up alternative screening sites to respond to the COVID-19 emergency. Further, HHSC has issued guidance on what visitors are allowed in the hospital.

Below is the information we have so far on the CMS waivers, guidance from HHSC, and on EMTALA. We will continue to keep you updated as more information comes in.

CMS Blanket Waivers  – CMS granted the following blanket waivers:

A. Waiver Applicable to Psychiatric Units (link)

  1. Acute Care Inpatients: Acute care hospitals may relocate acute care inpatients to psychiatric units if the psychiatric unit’s beds are appropriate for acute care inpatients and the move is necessary to respond to COVID-19.
  2. Psychiatric Inpatients: Acute care hospitals may relocate their psychiatric inpatients from the psychiatric unit to an acute care bed as needed to respond to COVID-19 only if the hospital’s acute care beds are appropriate for psychiatric patients, and the staff and environment are conducive to safe care. Please continue to comply with the excluded psychiatric DPU requirements for your psychiatric inpatients when they are housed in the acute care hospital.
  3. Billing and Reimbursement:
    1. Acute Care Inpatients: Acute care patients relocated to a psychiatric unit should be billed as an IPPS patient.
    2. Psychiatric Inpatients: Psychiatric patients relocated from the psychiatric unit to the general acute care hospital should be billed under the psychiatric payment system, not the IPPS system.
    3. All Claims: The hospital must annotate all Medicare fee-for-service claims affected by the emergency with the “DR” condition code or the “CR” modifier, as applicable, for the period that the waiver is in effect.
      1. CR: The “CR” (catastrophic/disaster related) modifier should be used to designate any service line item on a claim that is disaster/emergency related.
      2. DR: If all of the services on the claim are disaster/emergency related, the facility must use the “DR” (disaster related) condition code to indicate that the entire claim is disaster/emergency related

B. Waivers Applicable to Rehabilitation Units (link)

  1. Acute Care Inpatients: Acute care hospitals may relocate acute care inpatients to inpatient rehabilitation units as needed to respond to COVID-19. These acute care patients relocate to the rehab DPU will not be counted in the rehab unit’s 60% calculations.
  2. Rehabilitation Inpatients: Acute care hospitals may relocate their rehabilitation inpatients from the rehabilitation unit to an acute care bed as needed to respond to COVID-19. Please continue to comply with the respective excluded rehabilitation DPU requirements for your rehabilitation inpatients when they are housed in the acute care hospital.
  3. Billing and Reimbursement:
    1. Acute Care Inpatients: Acute care patients relocated to a rehab unit should be billed as an IPPS patient and will not count towards the rehab unit’s 60% calculations.
    2. Rehabilitation Inpatients: Rehab patients relocated from the rehab unit to the general acute care hospital should be billed under the rehabilitation payment system, not the IPPS system.
    3. All Claims: The hospital must annotate all Medicare fee-for-service claims affected by the emergency with the “DR” condition code or the “CR” modifier, as applicable, for the period that the waiver is in effect.
      1. CR: The “CR” (catastrophic/disaster related) modifier should be used to designate any service line item on a claim that is disaster/emergency related.
      2. DR: If all of the services on the claim are disaster/emergency related, the facility must use the “DR” (disaster related) condition code to indicate that the entire claim is disaster/emergency related.

C. Waivers Applicable to Critical Access Hospitals: CMS is waiving the requirements that Critical Access Hospitals limit the number of beds to 25, and that the length of stay be limited to 96 hours.

D. Approval of CMS Waivers: Generally, with 1135 Waivers, either the State or individual provider must request that the waiver apply (1135 Waiver Request), but this is a “blanket waiver” so permission is not needed for it to apply to providers (See 1135 Waivers at a Glance and Waivers and Flexibilities). Instead, the provider should inform its CMS Regional Office if it plans to use the waiver to ensure proper payment for the “waived” patients. On 3/13/20, THA notified the CMS Regional Office that its hospitals want to use the waivers (See attached Texas COVID-19 Waiver Request ). Texas expects to hear feedback within 72 hours from its request.

E. Duration of CMS Blanket Waivers: The waiver will last for the duration of the declared emergency, unless CMS terminates before that (42 USC 1320b-5). That said, CMS explained that the wavier technically only lasts while such waivers are necessary for a particular provider and may be shorter if the provider can operate without the benefit of the waiver.

F. Updated on March 26, 2020. Additional Waivers Requested from CMS by the Texas Hospital Association: On 3/13/20, THA requested additional waivers from CMS requirements. Texas expects to hear feedback within 72 hours from its request. These waivers must be approved by CMS before hospitals may use them. The requests include:

  • To suspend Medicare Conditions of Participation, certification requirements, and preapproval requirements to allow hospitals to quickly respond to COVID-19.

CMS Response: Forwarding to the Office of Administrator’s Committee for review.

  • To allow new physicians and physicians with expiring privileges to deliver care prior to undergoing review by the full medical staff/governing body.

CMS Response: As long as physicians are licensed to practice medicine, this waiver request is approved.

  • To waive discharge planning requirements to enable hospitals to quickly discharge patients who no longer need acute care.

CMS Response: Forwarding to the Office of Administrator’s Committee for review.

  • To allow hospitals to use non-hospital buildings/space for patient care.

CMS Response: Waiver request approved.

  • To waive sanctions related to physician referrals if the physician refers to an entity in which he/she has a financial relationship, but the entity was the closest provider or more appropriate care setting.

CMS Response: Waiver request approved.

  • To waive sanctions and penalties arising from noncompliance with certain HIPPA privacy regulations.

CMS Response: Request referred to the Office of Civil Rights.

G. Updated on March 26, 2020.  Additional Waivers Requested by Texas Hospital Association to HHSC: THA has also requested the following flexibilities from HHSC in regards to state hospital licensing requirements:

  • Enable hospitals to utilize more rooms than permitted on their state license, and allow provisions for medical care to be delivered in temporary patient care units.

CMS Response: Waiver request approved (included in blanket waivers).

  • Suspend hospital transfer requirements, except for the requirements to have Memoranda of Transfer and that transfers be doctor-to-doctor.
  • Suspend requirements that verbal orders to be dated, timed, and authenticated within 96 hours by the prescriber or another practitioner responsible for the care of the patient.
  • Suspend requirements related to discharge planning and designated caregivers.

CMS Response: Forwarding to the Office of Administrator’s Committee for review.

  • Suspend routine inspections and on-site investigations of hospitals, except for surveys related to COVID-19 and initial surveys for facilities to open or add space.
  • Waive the 30-day spell-of-illness limitation implemented by the STAR Plus Program and Medicaid Fee-for-Service programs.

H. EMTALA Information: On 3/9/2020, CMS provided additional guidance on EMTALA requirements related to responding to COVID-19. Specifically, hospitals are allowed to set up on-campus alternative screening sites that are separate from their emergency department. Alternative screening sites may be located in other buildings on the hospital campus or in tents in the parking lot, as long as they are determined to be an appropriate setting for medical screening activities and meet the clinical requirements of the individuals referred to that setting.  These alternative sites may perform the screenings that EMTALA requires.

Hospitals may also set up screening at an off-campus, hospital-controlled sites to test patients with influenza-like illnesses. A waiver from CMS is not needed for this if the hospital and community officials encourage the public to go to these sites for influenza-like illness before they present to the hospital’s emergency department. But, per a CMS hosted conference call on 3/16/20, a waiver is needed from CMS for a hospital to tell individuals who have already presented to its emergency room to go to the off-site location for a medical screening.

I. CMS Communication: CMS is hosting weekly calls for hospitals every Monday (starting March 16) from 11 am CST – 12 pm CST. The call-in information is 1-888-455-1397 / Passcode 5854574. We will have an attorney calling into each of these calls and will update you with any information applicable to your hospitals.

J. State of Texas Communication: The State of Texas is hosting daily calls at 4 pm CST. The call-in information is 1-800-289-0462 / Passcode 805539. We will have an attorney calling into each of these calls and will update you with any information applicable to your hospitals.

K. Surveys and Private Accreditation Organizations: CMS is suspending non-emergency surveys. Surveys are prioritized in the following order (i) immediate jeopardy complaints; (ii) complaints involving infection control; (iii) statutorily required recertification surveys for nursing homes, home health agencies, and hospices; (iv) re-visits to resolve current enforcement actions; (v) initial certifications; (vi) surveys of facilities that have a history of infection control deficiencies at the immediate jeopardy level in the last 3 years; and (vii) surveys of facilities that have a history of infection control deficiencies at lower levels than immediate jeopardy (See March 4 and March 13 guidance).

L. HHSC’s Hospital Visitor Rules: This morning, HHSC released guidance governing the types of visitors who are allowed into hospitals (general acute care hospitals and specialty hospitals like rehab hospitals, LTCHs, and psych hospitals (see attached Hospital Visitors). This guidance does not apply to outpatient clinics.

The guidance states that hospitals should allow only essential visitors to access the hospital. Essential visitors include:

  • government personnel;
  • one designated caregiver acting on the patient’s behalf, such as a parent of a minor or a legally authorized representative;
  • patient family members, but no more than one at a time;
  • clergy members authorized by the hospital; and
  • additional family members of patients at the end of life or presenting at the emergency department, subject to hospital policy.

There are no restrictions on hospital workforce, e.g., medical and professional staff, administrative or other employees, or contract services staff.

Hospitals should prohibit essential visitors from entering the hospital if the essential visitor has:

  • Fever or signs or symptoms of a respiratory infection, such as cough, shortness of breath, or sore throat;
  • Contact in the last 14 days with someone who has a confirmed diagnosis of COVID-19, is under investigation for COVID-19, or is ill with respiratory illness; or
  • Traveled within the previous 14 days to a country with sustained community transmission. For updated information on affected countries visit: https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html

Hospitals may enact more stringent restrictions on visitors to reduce the health and safety risk to patients and staff. A hospital must have written policies and procedures regarding the visitation rights of patients, including those setting forth any clinically necessary or reasonable restriction or limitation that the hospital may need to place on such rights and the reasons for the clinical restriction or limitation.

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Photo of Alison Hollender Alison Hollender

Alison knows the legal issues of healthcare transactions backwards and forwards—and she also knows the concerns and goals of the organizations involved. Before pursuing a law career, Alison worked at Cook Children’s Healthcare System and earned a master’s in healthcare administration. Both experiences…

Alison knows the legal issues of healthcare transactions backwards and forwards—and she also knows the concerns and goals of the organizations involved. Before pursuing a law career, Alison worked at Cook Children’s Healthcare System and earned a master’s in healthcare administration. Both experiences gave her an inside view of healthcare organizations.

Photo of Mackenzie Wortley Mackenzie Wortley

Mackenzie offers practical legal advice so healthcare clients can focus on patient care. Mackenzie helps healthcare organizations remain compliant with a complex and changing web of federal and state regulations.

Photo of Eric Weatherford Eric Weatherford

Eric uses his deep knowledge of Medicaid and Medicare reimbursement, compliance and regulatory matters to help healthcare clients find the answers they need. As the leader of the firm’s Healthcare Regulatory & Compliance Counseling team, Eric advises healthcare providers nationwide on state and

Eric uses his deep knowledge of Medicaid and Medicare reimbursement, compliance and regulatory matters to help healthcare clients find the answers they need. As the leader of the firm’s Healthcare Regulatory & Compliance Counseling team, Eric advises healthcare providers nationwide on state and federal regulatory and operations issues, including requirements related to reimbursement, fraud and abuse, licensure and other matters. Eric is especially well-versed in Medicaid supplemental payment programs.

Photo of Joseph (Joe) V. Geraci Joseph (Joe) V. Geraci

When Joe began his legal practice as in-house counsel for a psychiatric hospital system, he dealt firsthand with the challenges of healthcare operations that his clients face daily. While physicians, hospitals and health systems focus on healing, Joe sorts through the nuts…

When Joe began his legal practice as in-house counsel for a psychiatric hospital system, he dealt firsthand with the challenges of healthcare operations that his clients face daily. While physicians, hospitals and health systems focus on healing, Joe sorts through the nuts and bolts of hospital operations to help his clients make sense of the industry’s complex regulations. He is board certified in healthcare law by the Texas Board of Legal Specialization and brings this in-depth background to his legal and business solutions.