COVID 19 has resulted in a flurry of waivers by federal and state regulatory agencies related to the provision of health care for Medicare and Medicaid patients. The CMS blanket waivers (issued as “1135 waivers” under the Social Security Act) stay in effect for the duration of the public health emergency (PHE) declared by the federal government in March 2020.
The goals of these actions are to:
> expand the healthcare system workforce by removing barriers for physicians, nurses, and other clinicians to be readily hired from the community or from other states
> ensure that local hospitals and health systems have the capacity to handle a potential surge of COVID-19 patients through temporary expansion sites
> increase access to telehealth in Medicare to ensure patients have access to physicians and other clinicians while keeping patients safe at home
> expand in-place testing to allow for more testing at home or in community based settings
> give temporary relief from many paperwork, reporting and audit requirements so providers, health care facilities, Medicare Advantage and Part D plans, and States can focus on providing needed care to Medicare and Medicaid beneficiaries affected by COVID-19.
Under its 1135 waiver authority, CMS took specific actions to increase the number and types of providers who could be mobilized to address the unusual challenges posed by the pandemic through expediting provider enrollment in Medicare for temporary billing privileges. These actions extended to not only physicians and other non-physician practitioners but also offered ASCs and other types of facilities options to participate in expanded treatment options. The scope of these waivers affects a broad range of services. Using its 1135 authority, CMS also allowed Medicare providers who had previously opted out of Medicare to terminate the opt-out and temporarily establish billing privileges.
Under the streamlined provider enrollment process, CMS established enrollment hotlines and waived certain screening requirements, such as application fees and certain criminal background checks. Processing of applications were also expedited to meet the changing needs across the country as the impact of the pandemic on care migrated from state to state.
The impact of the PHE-related waivers created significant new avenues for expanded care and treatment options. Telehealth in particular offered opportunities to enhance care and treatment at a safe distance. For example, health care professionals who were previously ineligible to furnish and bill for Medicare telehealth services, including physical therapists, occupational therapists, speech language pathologists, and others, could now bill for and receive payment for Medicare services provided through telehealth and other communications technology-based services. The option to receive behavioral health services outside of a clinical setting was a very attractive alternative for patients and providers alike and has been an enduring care model during the pandemic.
To expand the number of providers eligible to provide services to Medicare and Medicaid beneficiaries, CMS has temporarily waived Medicare requirements that physicians and non-physician medical professionals be licensed in the state in which they are providing services. Under Medicare, a physician normally must be licensed in each state in which he or she provides services. Under this temporary arrangement during the PHE, CMS waives this Medicare licensing requirement for individuals for whom the following four conditions are met:
- The practitioner is enrolled in Medicare;
- The practitioner has a valid license to practice in the state which relates to his/her Medicare enrollment;
- The practitioner is furnishing services – either in person or via telehealth – in a state in which the emergency is occurring in order to contribute to relief efforts in his or her professional capacity; and
- The practitioner is not affirmatively excluded from practice in the state or any other state that is part of the 1135 emergency area.
While this waiver appears to open the door to expansion, there are several points to note:
> While CMS provided an avenue to increase provider access through such licensure waivers, it was incumbent upon states or local governments to waive their licensure requirements for the CMS changes to have effect. Those requirements would continue to apply unless waived by a state.
> CMS specifically recognized and addressed the importance of preventing any excluded providers from taking advantage of an opportunity to bill Medicare for services.
> CMS temporarily ceased revalidation efforts for Medicare providers but made it clear that once the PHE ended, revalidations would resume.
> Despite the relaxation of certain rules related to care delivery, situs and payment, CMS continues to expect state Medicaid agencies, providers and payors to meet the requirements related to screening employees, contractors and vendors against federal OIG exclusion lists.
Managed Care & Exclusion Screening
While fee for service provider billing submitted directly to Medicare is well addressed by the CMS waivers, a majority of Medicare members now receive care through managed care arrangements. State Medicaid programs predominantly offer services to beneficiaries through managed care organizations as well. Therefore, as managed care plans seek to expand their workforces and leverage the new enrollment opportunities to expand its workforce, such as enrollment of out- of- state providers, this can create an enhanced risk of contracting with a new or downstream provider who is excluded by another state. The contracting party is required to screen for such exclusions on a monthly basis and is ultimately responsible for payments made to such excluded individuals or entities.
From a compliance perspective, a clear line of sight on your organization’s contracting strategy to expand panels and enroll new providers to meet increased demand in particular areas is critical and will help head off potential surprises on monthly screening reports. It is equally critical to reinforce with operational units that the regular processes of timely screening against required federal and state lists are maintained even as competing priorities arise.
The health care environment is very dynamic due to the pressures created by COVID 19 for both patients and providers. CMS has created significant opportunities to expand modalities to enhance care of patients while mitigating the risk of the spread of the virus. As noted above, these CMS waivers include the temporary reduction of CMS auditing and oversight activities and many states have eased managed care program surveillance oversight as well. However, the regulatory requirements related to screening for excluded individuals and entities remains in full force and effect.