COVID-19 Update: CMS Waiver Information for Private Practice Physicians and Non-Physician Practitioners

By Hal Katz and Tamar E. Hodges

President Donald Trump declared the coronavirus pandemic a National Emergency on March 13, 2020. This declaration granted the Department of Health and Human Services (HHS) Secretary Alex Azar authority to relax certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements set forth in Section 1135 of the Social Security Act. The primary purpose of this waiver is to give providers greater flexibility to meet the needs of Medicare, Medicaid, and CHIP beneficiaries during an emergency.  CMS may issue “blanket waivers” after a declaration of a public health emergency when it determines many “similarly situated providers” would require certain waivers. CMS requires providers to put the state licensing agency and CMS Regional Office on notice if it intends to modify their operations in light of such waivers, although the blanket waivers are essentially automatic and, therefore, do not require the provider to submit a request. The waiver is in effect through the duration of the emergency or until CMS terminates the waiver. Continue Reading COVID-19 Update: CMS Waiver Information for Private Practice Physicians and Non-Physician Practitioners

The Husch Blackwell Hospice Team has been receiving reports from hospices throughout the country that nursing facilities are prohibiting hospice workers from entering the facility to provide essential end-of-life care to hospice patients. Such access is being denied pursuant to visitor restrictions. However, hospice personnel are not visitors but are recognized by the Centers for Medicare and Medicaid Services (“CMS”) as essential health care personnel who must be given access.

Continue Reading Tools for Your Hospice Tool Box: If Nursing Facilities Are Improperly Restricting Access to Hospice Personnel During the COVID-19 Pandemic, We Have a Tool That Can Help

On March 20, 2020, the Texas Health and Human Services Commission issued Provider Letter 20-23, providing clear guidance to Texas’ assisted living communities on how to reduce the risk of the spread of COVID-19. Finding that; “…COVID-19 presents a significant health and safety risk to ALF residents” and that “the best method of protecting [residents] from infection is to keep the infection out of the facility”, the provider letter adopts guidelines that are similar to those put in place several days ago for nursing facilities. Significantly, the letter determines that; “[a] resident’s right to visitation can be restricted in order to protect the health and safety of residents”. Continue Reading Texas Health and Human Services Commission releases COVID-19 Guidance to Assisted Living Facilities

The Families First Coronavirus Response Act (the Act) was passed and signed into law on March 18 and will go into effect on April 2, 2020 and continue until December 31, 2020. As our colleagues Josef Glynias and Paul Pautler noted in their excellent summary, this Act has two provisions which speak to employee leave and may have significant implications for employers, including healthcare providers. The Department of Labor has not yet issued guidance on this Act, and we will update this blog as guidance is issued.

Continue Reading New Coronavirus-Related Employment Laws to Impact Healthcare Providers

These are extraordinary times. COVID-19, or the novel coronavirus, has disrupted the life of every American and every business. Hospices are no exception. In fact, they are on the frontlines, responsible for providing care to the elderly, a population extremely susceptible to COVID-19. The Husch Blackwell Hospice Team is fundamentally a group of problem solvers, who are here with and for you during these trying times, to provide support, guidance, ideas and strategies in the face of this unprecedented issue. Listen in on the full episode here:

For additional guidance on responding to the coronavirus, please see the following links:

Check out the Hospice Resource Library for tips and tools related to this episode.

The CDC’s latest Morbidity and Mortality Weekly Report released Wednesday, March 18, 2020, reiterated that both residents and the workforce of long term care facilities remain most vulnerable to the exposure and spread of COVID-19.  According to the Report, “[s]ubstantial morbidity and mortality might be averted if all long-term care facilities take steps now to prevent exposure of their residents to COVID-19. The underlying health conditions and advanced age of many long-term care facility residents and the shared location of patients in one facility places these persons at risk for severe morbidity and death.”

Continue Reading COVID-19 FAQs for Assisted Living Communities

Husch Blackwell’s Wakaba Tessier and Erica Ash have published a post on Husch Blackwell’s Byte Back privacy blog detailing a new announcement from the Office of Civil Rights of the U.S. Department of Health and Human Services that relaxes the HIPAA Security Rule in response to the COVID-19 crisis, expanding on our previous discussion on the government’s expansion of telehealth services. The primary effect of OCR’s announcement is that regulators under certain conditions will now waive penalties for HIPAA violations against healthcare providers that see patients through non-public communication applications that do not meet the HIPAA Security Rule during the nationwide public health emergency.

On March 17, 2020, President Trump announced the expansion of Medicare telehealth coverage to allow providers to virtually visit with Medicare beneficiaries amid the COVID-19 pandemic. The telehealth benefits expansion is in accordance with the President’s emergency declaration under the Stafford Act and the recently passed Coronavirus Preparedness and Response Supplemental Appropriations Act. By expanding telehealth benefits for Medicare beneficiaries, the Trump administration hopes to alleviate pressure on healthcare facilities that deal with urgent cases and ensure that elderly beneficiaries may seek care while minimizing exposure to the virus.

Continue Reading Trump Announces Expansion of Telehealth Services Through Medicare

On Friday, March 13, 2020, CMS issued blanket waivers under 42 U.S.C. 1320b-5 that impact long term acute care hospitals (LTCHs) and inpatient rehabilitation facilities (IRFs) as a result of President Trump declaring a state of an emergency due to COVID-19. The blanket waivers temporarily allow facilities operating inpatient rehabilitation units to exclude patients admitted to the unit for emergency COVID-19 treatment from the 60% calculations. This also applies to new facilities that are in the process of seeking IRF classification.  Additionally, LTCHs can exclude patients admitted to the LTCH for emergency COVID-19 treatment from the LTCH’s average length of stay (ALOS) calculations. In other words, LTCHs and facilities operating inpatient rehabilitation units can admit patients who do not quality for IRF or LTCH care and those patients will be excluded from the respective calculations to maintain the LTCH’s or IRF IPPS-excluded status.

1. Waiver:

a. IRFs: IRFs, including facilities seeking IRF classification, may exclude patients admitted to the IRF for emergency COVID-19 treatment from the IRF’s 60% calculation. We reached out to CMS for clarification as to whether this applies to freestanding IRFs in addition to acute care facilities that operate inpatient rehabilitation units.

b. LTCHs: LTCHs can exclude patients admitted to the LTCH for emergency COVID-19 treatment from the LTCH’s ALOS calculations.

2. Approval: Generally, these waivers require the State or individual provider to request that the waiver apply:

But this is a “blanket waiver” so permission is not needed for it to apply: and Instead, the provider should just inform its CMS Regional Office of it plans to use the waiver to ensure proper payment for the “waived” patients.

On March 14, 2020, Texas notified the CMS Regional Office that its hospitals want to use the waivers: Texas COVID-19_Waiver_Request 5. Texas expects to hear feedback within 72 hours of its request.

3. Billing and Reimbursement: and

a. Billing: The hospital must annotate all Medicare fee-for-service claims affected by the COVID-19 emergency with the “DR” condition code or the “CR” modifier, as applicable, for the period that the waiver is in effect.

i. CR: The “CR” (catastrophic/disaster related) modifier should be used to designate any service line item on a claim that is disaster/emergency related.
ii. 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. Reimbursement: CMS hasn’t explained how facilities with inpatient rehabilitation units and LTCHs will be reimbursed for non-IRF and non-LTCH patients during this waiver, but in prior waivers, CMS paid the IPPS rate for those non-IRF and non-LTCH patients: and

4. Continuing Care for IRF and LTCH Patients: Facilities with inpatient rehabilitation units and LTCHs should continue to continue to comply with the applicable IRF and LTCH requirements for your LTCH and IRF eligible patients. These requirements still apply.

5. Duration: The waiver will last for the duration of the declared emergency, unless CMS terminates it 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.

6. Other Waivers:

a. Additional Federal Waivers: Hospitals can request waiver from their CMS Regional Office of other requirements not mentioned if such waiver is needed to respond to the emergency.

b. State Waivers: Additionally, hospitals can request that the State they are licensed in waive State requirements. Yesterday afternoon, Texas requested that the State grant flexibilities from the State licensing requesting during this emergency: Texas Flexibilities Request.

7. CMS Communication: Starting March 16, 2020, CMS is hosting weekly calls for hospitals every Monday from 11 am CST – 12 pm CST. The call-in information is 1-888-455-1397 / Passcode 5854574. We will have a Husch Blackwell attorney calling into each of these calls and will update you with any information applicable to your hospitals.

8. Surveys and Private Accreditation Organizations: CMS is suspending non-emergency surveys. CMS in structured private accreditation organizations that surveys are to be prioritized in the following order (i) immediate jeopardy complaints; (ii) complaints involving infection control; (iii) re-visits to resolve current enforcement actions; and (iv) initial certifications: and

The Husch Blackwell Healthcare team will continue to update this site as more information becomes available. Please contact us if you have licensing, certification, and accreditation questions regarding how the waivers apply to your hospital.

Centers for Medicare and Medicaid Services (CMS) has issued broad waivers to assist in the national COVID-19 response. They impact all provider types and generally remove regulatory burdens that could restrict access to care. For example, the waivers remove bed limits on Critical Access Hospitals and will allow Long Term Hospitals to exclude from the 25 ALOS calculation patients who were admitted or discharged to “meet the demands of the emergency.” Restriction on the separation of patients in excluded units in IPPS hospitals are waived. The requirement for three days of hospitalization to receive skilled nursing coverage is also waived. There are a number of other waivers.

Continue Reading COVID-19: CMS Waiver Information for Providers