COVID-19 Legal Resources for Healthcare Providers and Suppliers – Part 3

Welcome to Wachler & Associates COVID-19 resource page.

CMS Expands Accelerated and Advance Payment Program Due to COVID-19

To address cash flow issues faced by many Medicare providers and suppliers, Medicare has expanded the Accelerated and Advance Payment Program. Many providers and suppliers have seen a steep drop in demand for their services and supplies due to COVID-19 shelter-in-place orders and the suspension of non-essential procedures. This decline has dried up normal sources of cash flow. To keep providers and suppliers operating, CMS is offering advance payment of Medicare claims, although these advance payments are perhaps better described as short-term, zero-interest loans.

A provider or supplier is eligible to request an advance payment if it (1) has billed Medicare for claims within the 180 days prior to the date of their request, (2) is not in bankruptcy, (3) is not under any active medical review or program integrity investigation, and (4) does not have any outstanding delinquent Medicare overpayments.

A provider or supplier can request an advance payment by filling out and submitting a form to the Medicare Administrative Contractor (MAC) for their region by fax, email, or mail. The forms are available on each MAC’s website and the COVID-19 hotlines that CMS has set up at each MAC are available to answer questions. MACs are to review the request forms, issue decisions by mail or email, and issue payments within seven calendar days of receiving the request. The form itself is not specific to the COVID-19 emergency and CMS has indicated providers/suppliers should check box #2 (delay in billing is temporary) and state that the reason for the advance payment request is the COVID-19 pandemic.

On the request form, the provider or supplier will be asked for the specific amount they are requesting. The majority of providers and suppliers may request up to 100% of the Medicare payment amount for a three-month period. Inpatient acute care hospitals, children’s hospitals, and certain cancer hospitals are able to request up to 100% of the Medicare payment amount for a six-month period. Critical access hospitals can request up to 125% of their payment amount for a six-month period.

When specifying the requested amount, a provider or supplier should consider the repayment schedule. Repayment for all provider/suppliers types will begin 120 days after the date the advance payment is issued. Providers and suppliers will receive full payments for claims submitted during these first 120 days. However, after 120 days, the recoupment process will begin automatically and new claims will not be paid, but will be used to repay the remaining balance of the advance payment amount. Once recoupment starts, most providers and suppliers will have an additional 90 days to repay the advance payment amount. Inpatient acute care hospitals, children’s hospitals, certain cancer hospitals, and critical access hospitals will have one year from the date of issuance of the advance payment to repay the balance. The only exception to these schedules is for Part A providers who receive Period Interim Payment (PIP), for whom the advance payment will be included in the reconciliation and settlement of the final cost report.

CMS has taken the position that, other than appeal of overpayment determinations as part of the repayment/recoupment process, there are no special appeal rights attached to these payments.

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Hospice Care and COVID-19

The Department of Health and Human Services (HHS), along with the Centers for Medicare & Medicaid Services (CMS), have established flexibilities in response to the COVID-19 pandemic. These temporary regulatory changes will help hospice providers in the continuance of providing care to their patients during this public health emergency.

CMS has issued blanket waivers for certain regulatory requirements Hospice providers are usually bound by, and these waivers will date back to March 1, 2020. These waivers include the following:

  • Waiving the requirement that hospices use volunteers for 5% of patient care hours;
  • Waiving certain timeframe requirements for updating patient assessments;
  • Waiving the requirement that hospices provide certain non-core services such as physical therapy, occupational therapy, and speech-language pathology;
  • Waiving the requirement of Onsite Visits for hospice aid supervision, which generally requires a nurse to conduct an onsite supervisory visit every two weeks.

Providers will no longer need to apply for these waivers individually and can begin to operate using these flexibilities immediately.

CMS is also pushing for expansion of the use to telemedicine in hospice care. CMS has issued an Interim Final Rule which provides guidance on how Hospices can use telemedicine in providing care. The use of telemedicine will help keep providers, patients, and their families safe and ease the concern that comes with families allowing the hospice team into the home.

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COVID-19 HIPAA Waivers

During the current Novel Coronavirus Disease (“COVID-19”) pandemic, providers are facing concerns as to how to interact with their patients while remaining in self-isolation or quarantine without violating the Health Insurance Portability and Accountability Act (“HIPAA”). Healthcare providers and entities that are business associates of healthcare providers must comply with HIPAA. Despite much misinformation that often circulates, HIPAA protections are not suspended during the public health emergency. In the event that there is a public health or other emergency, the Secretary can, however, waive certain provisions of HIPAA under the Project Bioshield Act of 2004 and section 1135(b)(7) of the Social Security Act.

In response to the declaration of a nationwide public health emergency, on January 31, 2020, Secretary Alex Azar of the U.S. Department of Health and Human Services (“HHS”) has exercised his authority to waive sanctions and penalties against a covered hospital that fails to comply with the following provisions of HIPAA:

  • 45 CFR 164.510(b): The requirements to obtain a patient’s agreement to speak with family members or friends involved in a patient’s care;
  • 45 CFR 164.510(a): The requirement to honor a request to opt out of the facility directory;
  • 45 CFR 164.520: The requirement to distribute a notice of privacy practices;
  • 45 CFR 164.522(a): The patient’s right to request privacy restrictions; and
  • 45 CFR 164.522(b): The patient’s right to request confidential communications.

The above waivers were made effective on March 15, 2020 and applies only: (1) in the emergency area identified in the public health emergency declaration; (2) to hospitals that have instituted disaster protocols; and (3) for up to 72 hours from the time the hospital implements its disaster protocol. The moment the Presidential declaration of a state of emergency is terminated, the hospital must immediately resume following all HIPAA rules and regulations.

The Office for Civil Rights (“OCR”) at HHS is responsible for enforcing HIPAA. In light of the COVID-19 pandemic, the OCR Director, Roger Severino, aims to empower medical providers to serve patients wherever they may be self-isolating or quarantined and would like to ensure the safety of those most at risk. Many covered healthcare providers are serving their patients via telehealth in order to flatten the curve and reduce in-person interactions for non-emergency healthcare. In addition to the above waivers that apply only to hospitals, the OCR has put the public on notice that HIPAA covered healthcare providers will not be penalized for using, specifically, FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, or Skype to provide telehealth information. If a provider chooses to use one of these platforms to conduct telehealth, they should notify their patients that these third-party applications do have privacy risks.

However, even where a waiver is not in place, some patient information can still be shared in order to not only treat the patient, but also protect the nation’s public health. The information that may be shared without the patient’s consent, using the minimum amount of identifiable information necessary, is:

  • Treatment information that could be used to treat the patient or a different patient;
  • Protected information that can be reported to a public health authority to protect the health of the nation, at the direction of a public health authority to a foreign government agency, or to persons at risk of contracting or spreading a disease;
  • Treatment information that must be disclosed to family, friends, and others involved in an individual’s care and for notification; and
  • Treatment information that must be disclosed to prevent a serious or immediate threat to the health and safety of a person or the public.

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