On Friday, March 13, 2020, CMS issued blanket waivers under 42 U.S.C. 1320b-5 that impact long term acute care hospitals (LTCHs) and inpatient rehabilitation facilities (IRFs) as a result of President Trump declaring a state of an emergency due to COVID-19. The blanket waivers temporarily allow IRFs to exclude patients admitted to the IRF for emergency COVID-19 treatment from the IRF’s 60% calculations. This also applies to new facilities that are in the process of seeking IRF classification. Additionally, LTCHs can exclude patients admitted to the LTCH for emergency COVID-19 treatment from the LTCH’s average length of stay (ALOS) calculations. In other words, LTCHs and IRFs can admit patients who do not quality for IRF or LTCH care and those patients will be excluded from the respective calculations to maintain the LTCH’s or IRF’s IPPS-excluded status.

Below are 8 points to summarize how these waivers apply to LTCHs and IRFs.

1. Waiver: https://www.cms.gov/files/document/covid19-emergency-declaration-health-care-providers-fact-sheet.pdf

a. IRFs: IRFs, including facilities seeking IRF classification, may exclude patients admitted to the IRF for emergency COVID-19 treatment from the IRF’s 60% calculation.

b. LTCHs: LTCHs can exclude patients admitted to the LTCH for emergency COVID-19 treatment from the LTCH’s ALOS calculations.

2. Approval: Generally, these waivers require the State or individual provider to request that the waiver apply: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/Downloads/What-Information-to-Provide-for-an-1135-Waiver-Request.pdf

But this is a “blanket waiver” so permission is not needed for it to apply: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/Downloads/1135-Waivers-At-A-Glance.pdf and https://www.cms.gov/About-CMS/Agency-Information/Emergency/EPRO/Resources/Waivers-and-flexibilities. Instead, the provider should just inform its CMS Regional Office of it plans to use the waiver to ensure proper payment for the “waived” patients.

On March 14, 2020, Texas notified the CMS Regional Office that its hospitals want to use the waivers: Texas COVID-19_Waiver_Request 5. Texas expects to hear feedback within 72 hours of its request.

3. Billing and Reimbursement: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/downloads/NDFloods_PHE.pdf and https://www.cms.gov/About-CMS/Agency-Information/Emergency/Downloads/MedicareFFS-EmergencyQsAs1135Waiver.pdf

a. Billing: The hospital must annotate all Medicare fee-for-service claims affected by the COVID-19 emergency with the “DR” condition code or the “CR” modifier, as applicable, for the period that the waiver is in effect.

i. CR: The “CR” (catastrophic/disaster related) modifier should be used to designate any service line item on a claim that is disaster/emergency related.
ii. DR: If all of the services on the claim are disaster/emergency related, the facility must use the “DR” (disaster related) condition code to indicate that the entire claim is disaster/emergency related.

b. Reimbursement: CMS hasn’t explained how IRFs and LTCHs will be reimbursed for non-IRF and non-LTCH patients during this waiver, but in prior waivers, CMS paid the IPPS rate for those non-IRF and non-LTCH patients: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/downloads/NDFloods_PHE.pdf and https://www.cms.gov/About-CMS/Agency-Information/Emergency/Downloads/MedicareFFS-EmergencyQsAs1135Waiver.pdf.

4. Continuing Care for IRF and LTCH Patients: IRFs and LTCHs should continue to continue to comply with the applicable IRF and LTCH requirements for your LTCH and IRF eligible patients. These requirements still apply.

5. Duration: The waiver will last for the duration of the declared emergency, unless CMS terminates it before that (42 USC 1320b-5). That said, CMS explained that the wavier technically only lasts while such waivers are necessary for a particular provider and may be shorter if the provider can operate without the benefit of the waiver.

6. Other Waivers: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/Downloads/1135-Waivers-At-A-Glance.pdf

a. Additional Federal Waivers: Hospitals can request waiver from their CMS Regional Office of other requirements not mentioned if such waiver is needed to respond to the emergency.

b. State Waivers: Additionally, hospitals can request that the State they are licensed in waive State requirements. Yesterday afternoon, Texas requested that the State grant flexibilities from the State licensing requesting during this emergency: Texas Flexibilities Request.

7. CMS Communication: Starting March 16, 2020, CMS is hosting weekly calls for hospitals every Monday from 11 am CST – 12 pm CST. The call-in information is 1-888-455-1397 / Passcode 5854574. We will have a Husch Blackwell attorney calling into each of these calls and will update you with any information applicable to your hospitals.

8. Surveys and Private Accreditation Organizations: CMS is suspending non-emergency surveys. CMS in structured private accreditation organizations that surveys are to be prioritized in the following order (i) immediate jeopardy complaints; (ii) complaints involving infection control; (iii) re-visits to resolve current enforcement actions; and (iv) initial certifications: https://www.cms.gov/files/document/qso-20-12-all.pdf and https://www.cms.gov/files/document/covid19survey-activity-suspension-faqs.pdf.