Updated on: March 23, 2020

CMS Ramping up Activity to Address Viral Pandemic

Original story posted on: March 18, 2020

Federal officials have been making efforts to ease restrictions and waive requirements in a time of crisis.

The Centers for Medicare & Medicaid Services (CMS) has issued a number of waivers to help healthcare organizations cope with the COVID-19 outbreak. Sorting through them is difficult, because they are heavy in citations and legalese.

Before diving into some of the key exceptions that were issued, I want to reemphasize a point from last week’s article. Sometimes in life, you need to make a decision that may involve breaking a rule. If you are standing on a beach with a “no swimming” sign and you see someone drowning, you have to decide whether you would rather face the consequences of diving in, or living with your choice not to. There will be some tough decisions to make in the next few weeks, and while it is good to know the law, my advice is to focus more on saving lives. 

There are many examples of how this may apply to the outbreak. The Coronavirus Preparedness and Response Act allows the U.S. Department of Health and Human Services (HHS) to waive telehealth requirements and allow coverage for certain phone services, but to qualify, the telephone must have audio and video capability. For most people, that won’t be an issue. But some senior citizens, who represent the most vulnerable population, often use phones without video capability. 

The law leaves you with three options: provide the service for free, overlook the video requirement, or make the patient come to your facility. I would immediately discount the third option. You may choose to offer the service for free, but I don’t think it is entirely crazy to bill for a telehealth service for a call involving an analog phone, and deal with the consequences should they arise. 

A second example: the Emergency Medical Treatment and Labor Act (EMTALA) is not suspended. So say a patient presents with a possible myocardial infarction (MI), but tests suggest the problem is not cardiac. Normally, the patient would be placed in observation. What do you do mid-outbreak,  though? I would be direct. Tell the patient, “I really don’t think you are having a heart attack. Normally, I would keep you for a few hours to be safe, but if I do that right now, it increases the risk of exposing you to the virus. I think it is safer to send you home than keep you here.” If the patient really wishes to stay, you may have an even tougher decision to make, but many patients will worry about the risk of exposure and leave. If the patient is having an MI, might you be sued? Of course, but your defense is strong, and the reason you carry malpractice insurance is that sometimes results are poor, even if the decision-making was reasonable. As for EMTALA, could there be an allegation? Yes. But it seems highly unlikely.    

This is an unusual situation, and we are all going to need to make snap judgments. Use common sense as the chief decision-maker, and work to save as many patients as possible. 

So, what rules did CMS suspend? Critical access hospitals (CAHs) may now have more than 25 beds, and the requirement to limit stays to 96 hours is completely waived. Medicare patients may have coverage for a skilled nursing facility (SNF) stay without a three-day hospitalization, and once in the nursing home, patients are not required to have minimum data set assessments. Excluded distinct units of hospitals can be used to treat acute-care patients. If existing durable medical equipment (DME) is lost or destroyed, CMS is waiving the face-to-face requirement, as well as the need for a new physician order and medical necessity documentation. Note that this is another example of a limited waiver. The waiver only applies to the replacement of DME, not ordering of new DME. 

Here is another great example of where you might need to take risk. Medicare is temporarily waiving the restriction that a professional be licensed in the state where the service is provided. Obviously, the Medicare waiver doesn’t help with any state licensing board, but that is a risk I would readily accept. I don’t think a licensing board is going to go after a licensed professional for helping the nation cope with this crisis.

CMS is also postponing all revalidation, and waiving site checks and criminal background checks for new provider enrollment. For more details, go online here:



Note that Medicare waivers don’t automatically apply in any other context. The fact that Medicare is now going to allow certain telehealth services doesn’t mean private insurers will. You can consider asking your big insurers for flexibility, or you could simply notify them of your plans and tell them you intend to offer telehealth services unless they object, and just see how things play out. 

The next few months will be rough in many ways. But we can make it better by doing what is right for patients. 

Programming Note: Listen to David Glaser’s live reporting every Monday on Monitor Mondays, 10-10:30 a.m. EST.

David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and a member of the RACmonitor editorial board.


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