[co-authors: Rachel Stauffer and Jessica Roth*]
On May 11, 2020, the Centers for Medicare and Medicaid Services (CMS) issued a new suite of blanket waivers to ensure that healthcare facilities have the flexibility they need to treat patients during the Coronavirus (COVID-19) pandemic. The latest waivers, all of which are effective through the end of the public health emergency declaration, provide for the following:
- Expand hospitals’ ability to offer long-term care services for patients who do not require acute care but meet criteria for skilled nursing facility (SNF) care. CMS has waived various eligibility requirements set forth at 42 CFR § 482.58 to permit hospitals to establish swing beds that will be payable by the SNF prospective payment system. The waiver is intended to permit hospitals to treat patients that no longer require acute care, but are unable to be placed in a SNF due to the COVID-19 emergency. Hospitals that wish to take advantage of the waiver must call their Medicare Administrative Contractor hotline and attest to various criteria, including that they have attempted to exhaust other options, there are no SNFs in their catchment area that are willing to accept patients due to COVID-19, they meet the waiver criteria, and they will discharge the patients as soon as practicable.
- Waive distance requirements, market share and bed requirements for sole community hospitals (SCHs). CMS has waived several eligibility requirements under 42 CFR § 412.92(a) that typically apply to hospitals with SCH status, including the distance requirements. Prior to the waiver, SCHs were concerned that if additional hospitals expanded or opened within their service area to meet COVID-19 caseload demand, and as permitted by other CMS waivers (e.g., the Hospital Without Walls and QSO-20-06-ASC waivers), the expanding hospital might interfere with the SCH’s ability to satisfy the eligibility criteria. This waiver puts those concerns to rest. CMS also waived similar market share and maximum bed requirements for SCHs that qualify on the basis of being located between 25 and 35 miles from other “like” hospitals. The waiver of these requirements provides these particular SCHs with the ability to expand bed capacity to meet demand or to direct patients to other better-suited facilities without risking their SCH status.
- Waive eligibility requirements for Medicare-dependent, small rural hospitals (MDHs). Similar to the waiver for SCHs, CMS has waived certain eligibility requirements for MDHs set forth at 42 CFR § 412.108(a)(1). Specifically, CMS waived the requirements that MDHs have 100 or fewer beds during the cost reporting period and that at least 60% of the MDH’s inpatient days or discharges be attributable to individuals entitled to Medicare Part A benefits during the cost reporting period. This waiver ensures both that MDHs will be able to expand bed capacity to meet surge demand resulting from COVID-19, and that they will not be penalized if their share of Medicare patients decreases, which could occur either because they experience an increase in non-Medicare patients or because Medicare patients are directed to other hospitals.
- Update specific life safety code requirements for certain types of healthcare facilities. CMS announced the easing of certain requirements that apply to hospitals, critical access hospitals, inpatient hospice facilities, intermediate care facilities for individuals with intellectual disabilities, and nursing facilities. Specifically, CMS waived requirements related to placement of alcohol-based hand rub dispensers and quarterly fire drills (instead permitting an orientation training program related to the fire plan), as well as any requirements that would not permit temporary walls and barriers between patients.
A full list of CMS’s blanket waivers is available here.
*Rachel Stauffer and Jessica Roth of McDermott+Consulting also contributed to this On the Subject.