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As the nation and the world brace for our collective struggle with the novel coronavirus named COVID-19, things are changing rapidly as society adjusts to our new “normal.” Congress continues to explore legislative solutions, including for affected workers. The Department of Health and Human Services (DHHS) and the Centers for Medicare & Medicaid Services (CMS), which administers the Medicare program, continue to implement policy changes relating to Medicare and other health programs. As we all try to learn and respond to these challenges, we offer an incomplete list of some helpful resources, including some recent policy changes relating to Medicare.  Some of these resources appeared in our March 17 Update from the Center for Medicare Advocacy.

  1. General Information About COVID-19

The Centers for Medicare & Medicaid Services (CMS) has developed a Coronavirus (COVID-19) Partner Toolkit with links to multiple resources issued by the federal government.

See the Centers for Disease Control (https://www.cdc.gov/) – including this handy infographic: https://www.cdc.gov/coronavirus/2019-ncov/downloads/workplace-school-and-home-guidance.pdf.

See the Kaiser Family Foundation’s webpage on the coronavirus, including State Data and Policy Actions to Address Coronavirus, Coronavirus Tracker and reports on paid leave, private coverage and issues for the uninsured.

See the Social Security Administration (SSA) coronavirus response on its website. SSA is closing its field offices – services will still be available through the agency’s toll-free line, (800) 772-1213, and its website. Payments to beneficiaries should not be affected. SSA is also suspending all Continuing Disability Reviews in SSI and SSDI and suspending recovery of overpayments “where possible” (thanks to the Medicare Rights Center for flagging this).

A Round-Up of Multilingual Resources on COVID-19 from Switchboard (thanks to Families USA for flagging this).

The National Health Law Program (NHeLP) has a dedicated webpage to coronavirus resources.

The World Health Organization published Mental Health Considerations during the COVID-19 Outbreak. GeroCentral has put together a list of resources regarding COVID-19 for mental health providers and for the general public.

The National Governors Association has a dedicated webpage to state-specific actions taken in response to the virus.

  1. Suspension of Elective Surgeries, Non-Essential Medical, Surgical and Dental Procedures

In guidance and a press release, CMS issued recommendations to providers that all elective surgeries, non-essential medical, surgical, and dental procedures be delayed during the COVID-19 outbreak.

According to the press release, “[t]he recommendations provide a framework for hospitals and clinicians to implement immediately during the COVID-19 response. The recommendations outline factors that should be considered [… including] patient risk factors, availability of beds, staff and PPE [Personal Protective Equipment], and the urgency of the procedure. This will help providers to focus on addressing more urgent cases and preserve resources needed for the COVID-19 response. The decision about proceeding with non-essential surgeries and procedures will be made at the local level by the clinician, patient, hospital, and state and local health departments.”

  1. Medicare-Specific Information

Here is a list of resources, guidance and policy updates recently issued by the Department of health & Human Services (DHHS) and the Centers for Medicare & Medicaid Services (CMS) relating to Medicare.

COVID-19 Testing

As noted in our March 17 Update, Medicare Part B will cover coronavirus testing if the individual’s doctor or other health care provider orders it and the test was performed on or after February 4, 2020.

See the Kaiser Family Foundation (KFF)’s FAQs on Medicare Coverage and Costs Related to COVID-19 Testing and Treatment

Loosening of Telehealth Rules

Pursuant to recently passed legislation, CMS is temporarily loosening restrictions on access to telehealth services. According to an electronic message from the Medicare program:

Medicare beneficiaries can temporarily use telehealth services for common office visits, mental health counseling and preventive health screenings. This will help ensure Medicare beneficiaries are able to visit with their doctor from their home, without having to go to a doctor’s office or hospital, which puts themselves and others at risk.

If you have an existing healthcare appointment, or think you need to see your doctor, please call them first to see if your appointment can be conducted over a smartphone with video capability or any device using video technology, like a tablet or a laptop. For some appointments, a simple check-in over the phone without video capabilities may suffice.

According to a discussion of telehealth on the Medicare website:

Due to the Coronavirus (COVID-19) Public Health Emergency, doctors and other health care providers can use telehealth services to treat COVID-19 (and for other medically reasonable purposes) from offices, hospitals, and places of residence (like homes, nursing homes, and assisted living facilities) as of March 6, 2020. Medicare will pay for these services for patients who have seen the health care provider or another health care provider in the same practice. Coinsurance and deductibles apply.

If you have coverage through a Medicare Advantage Plan, you won’t have to pay out-of-pocket costs (called cost-sharing) for COVID-19 tests and treatment.

This CMS Fact Sheet on expanded telehealth for Medicare beneficiaries provides additional details, as does this FAQ.  Note that the Fact Sheet states that “the HHS Office for Civil Rights (OCR) will exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency.”

Medicare Advantage (MA) and Part D Plan Flexibilities and Obligations

As noted in a CMS press release, on March 10, CMS published a memorandum “to Medicare Advantage (MA) and Part D health and prescription drug plans informing them of the flexibilities they have to provide healthcare coverage to Medicare beneficiaries for COVID-19 testing, treatments, and prevention.”  In addition to the flexibilities plans can choose to implement, the memorandum also outlines obligations that plans must follow.

As summarized in the press release, the memo: “outlines the flexibilities MA and Part D plans have to waive certain requirements to help prevent the spread of COVID-19. These flexibilities include:

  • Waiving cost-sharing for COVID-19 tests
  • Waiving cost-sharing for COVID-19 treatments in doctor’s offices or emergency rooms and services delivered via telehealth
  • Removing prior authorizations requirements
  • Waiving prescription refill limits
  • Relaxing restrictions on home or mail delivery of prescription drugs
  • Expanding access to certain telehealth services

The memo also lists certain obligations or “special requirements” that MA plans have that are triggered by individual state declarations of emergency. The memo states:

“When these special requirements are in effect, under 42 CFR 422.100(m)(2), the requirements for Medicare Advantage Organizations under 42 CFR 422.100(m)(1) are:

  • Cover Medicare Parts A and B services and supplemental Part C plan benefits furnished at non-contracted facilities subject to § 422.204(b)(3), which requires that facilities that furnish covered A/B benefits have participation agreements with Medicare.
  • Waive, in full, requirements for gatekeeper referrals where applicable.
  • Provide the same cost-sharing for the enrollee as if the service or benefit had been furnished at a plan-contracted facility.
  • Make changes that benefit the enrollee effective immediately without the 30-day notification requirement at §422.111(d)(3). (Such changes could include reductions in cost-sharing and waiving prior authorizations as described below.)”

Skilled Nursing Facility Coverage

Waiver of Prior 3-Day Inpatient Hospital Stay for SNF Coverage

As outlined in a recent CMS memorandum, CMS is waiving the requirement at Section 1812(f) of the Social Security Act for a 3-day prior hospitalization for coverage of a skilled nursing facility (SNF) stay. It provides temporary emergency coverage of SNF services without a qualifying hospital stay, for those people who need to be transferred as a result of a disaster or emergency – in this case the COVID-19 epidemic. In addition, for certain beneficiaries who recently exhausted their SNF benefits, it authorizes renewed SNF coverage without first having to start a new benefit period.

Note: Waiving or otherwise not applying the prior 3-day inpatient hospital stay for subsequent SNF coverage has been a long-standing policy goal of the Center for Medicare Advocacy. While we are in the midst the current COVID-19 crisis, we hope this policy will remain after things stabilize.

Infection Control Guidance, Including Restrictions on Visitation

On March 4, CMS issued Guidance suspending non-emergency health inspections across the country. CMS is directing state survey agencies to prioritize immediate jeopardy complaints, allegations of abuse and neglect, and complaints involving infection control. The Center for Medicare Advocacy is deeply troubled by this guidance and encourages CMS to resume oversight and enforcement of all federal standards of care.

On March 13, CMS issued Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in nursing homes. CMS is restricting all visitation, except in end-of-life and other compassionate care situations. While this directive also applies to ombudsmen, CMS states that nursing homes may review their access on a case-by-cases basis. The Center for Medicare Advocacy is concerned by this restriction as it relates to family caregivers. For more information, please read out CMA Alert.

Home Health Care and Infection Control

On March 10, CMS issued Guidance for home health agencies (HHAs) concerning infection control.  While the memo does not outline any changes concerning eligibility for and coverage of home health services, it does articulate ongoing responsibilities of HHAs that are providing care to individuals.

The memo states: “CMS regulations requires that home health agencies provide the types of services, supplies and equipment required by the individualized plan of care.  HHA’s are normally expected to provide supplies for respiratory hygiene and cough etiquette, including 60%-95% alcohol-based hand sanitizer (ABHS).  State and Federal surveyors should not cite home health agencies for not providing certain supplies (e.g., personal protective equipment (PPE) such as gowns, respirators, surgical masks and alcohol-based hand rubs (ABHR)) if they are having difficulty obtaining these supplies for reasons outside of their control.  However, we do expect providers/suppliers to take actions to mitigate any resource shortages and show they are taking all appropriate steps to obtain the necessary supplies as soon as possible” [Emphasis added].

Note that the memorandum makes clear that HHAs are expected to provide ongoing care, even when therapeutic interventions are required: “Are there specific considerations for patients requiring therapeutic interventions?  Patients with known or suspected COVID-19 should continue to receive the intervention appropriate for the severity of their illness and overall clinical condition. Because some procedures create high risks for transmission (close patient contact during care) precautions include: 1) HCP [health care providers] should wear all recommended PPE [personal protective equipment], 2) the number of HCP present should be limited to essential personnel, and 3) any supplies brought into, used, and removed from the home must be cleaned and disinfected in accordance with environmental infection control guidelines.”

CMS has also issued guidance for dialysis providers, including when such facilities are beyond capacity: “When transmission in the community is identified, the local medical system’s capacity to accept hemodialysis patients for treatment may be exceeded. Public health authorities and dialysis facilities should refer to pandemic and emergency preparedness plans to help determine alternatives. Alternative options may include the need to continue dialysis in the outpatient hemodialysis setting if the patient’s condition does not require a higher level of care.”

General Provider Issues

CMS has issued a COVID-19 Emergency Declaration Health Care Providers Fact Sheet that outlines a number of flexibilities being given to providers in an effort to address COVID-19, including:

  • Provider Locations – CMS is temporarily waiving requirements that out-of-state providers be licensed in the state where they are providing services when they are licensed in another state.
  • Expedited provider enrollment procedures, including temporary Medicare billing privileges
  • Durable Medical Equipment, Etc. – CMS states: “Where Durable Medical Equipment Prosthetics, Orthotics, and Supplies (DMEPOS) is lost, destroyed, irreparably damaged, or otherwise rendered unusable, contractors have the flexibility to waive replacements requirements such that the face-to-face requirement, a new physician’s order, and new medical necessity documentation are not required. Suppliers must still include a narrative description on the claim explaining the reason why the equipment must be replaced and are reminded to maintain documentation indicating that the DMEPOS was lost, destroyed, irreparably damaged or otherwise rendered unusable or unavailable as a result of the emergency” [emphasis added].

Medicare Appeals

The memo also addresses Appeals filed by providers, noting that blanket waivers are available for “Medicare appeals in Fee for Service, MA and Part D” including:

  • “Extension to file an appeal
  • Waive timeliness for requests for additional information to adjudicate the appeal;
  • Processing the appeal even with incomplete Appointment of Representation forms but communicating only to the beneficiary;
  • Process requests for appeal that don’t meet the required elements using information that is available.
  • Utilizing all flexibilities available in the appeal process as if good cause requirements are satisfied”

Although the memo does not address appeals filed by beneficiaries and those assisting them (other than providers), the Center for Medicare Advocacy urges such individuals who are filing appeals in good faith to explicitly note on their appeal documentation that they are requesting good cause allowances for any late filings due to the national COVID-19 emergency.

March 19, 2020 – D. Lipschutz

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