On April 30, 2020, the Centers for Medicare & Medicaid Services (“CMS”) issued another round of regulatory waivers and rule changes as part of its ongoing effort to help the country’s healthcare system manage the 2019 Novel Coronavirus (COVID-19) pandemic. The new rules build on CMS’s previously announced temporary regulatory waivers and new rules, issued on March 30 and April 10, respectively. The most recent changes provide even greater flexibility for healthcare providers to ramp up diagnostic testing and provide access to medical care, factors CMS deem to be key precursors to ensuring a phased, safe, and gradual reopening of America amid the ongoing pandemic.

The changes include new rules to support and expand COVID-19 diagnostic testing for Medicare and Medicaid beneficiaries, flexibility in hospital capacity, healthcare workforce augmentation, and continued efforts to expand beneficiaries’ access to telehealth services.

Below are a few key takeaways from CMS’s latest round of regulatory changes:


COVID-19 Testing
  • Medicare will no longer require an order from the beneficiary’s treating physician or other practitioner prior to receiving COVID-19 tests and certain other lab tests required as part of a COVID-19 diagnosis. During the Public Health Emergency, COVID-19 tests may be covered when ordered by any healthcare professional authorized to do so under state law and a written practitioner’s order is no longer required for the COVID-19 test for Medicare payment purposes.
  • Pharmacists can now work with physicians or other practitioners to provide assessment and specimen collection services and the physician or other practitioner can bill Medicare for the services. Pharmacists can now perform certain COVID-19 tests if they are enrolled in Medicare as a laboratory, in accordance with a pharmacist’s scope of practice and state law. With these changes, beneficiaries can now get tested at “parking-lot-test-sites” operated by pharmacies and other entities, which will help in expanding COVID-19 testing capacity.
  • CMS will pay hospitals and practitioners to assess beneficiaries and collect laboratory samples for COVID-19 testing, building on previous action to pay labs for technicians to collect samples for COVID-19 testing from homebound beneficiaries and those in certain non-hospital settings and encourages broader testing by hospitals and physician practices.
  • Medicare and Medicaid are now covering certain serology (antibody) tests, which may aid in determining whether a person may have developed an immune response and may not be at immediate risk for COVID-19 reinfection. Medicare and Medicaid will cover laboratory processing of certain FDA-authorized tests that beneficiaries self-collect at home.
Hospital Capacity/Payment Rates
  • Whereas previously hospitals were required to provide services within their existing departments, CMS has taken steps to allow hospitals to provide services in other healthcare facilities and sites that aren’t part of the existing hospital, and to set up temporary expansion sites to help address patient needs.
  • In an effort to alleviate pressure on acute-care hospital bed capacity, hospitals and health systems that would normally have their Medicare payments cut if they added more beds are now able to do so without payment reductions. For example, teaching hospitals can now increase the number of temporary beds without facing reduced payments for indirect medical education, inpatient psychiatric facilities and inpatient rehabilitation facilities can now admit more patients without facing reduced teaching status payments, and health systems that include rural health clinics can now increase their bed capacity without affecting the rural health clinic’s payments.
  • CMS will not reduce payments for teaching hospitals that shift their residents to other hospitals for needs related to COVID-19, and hospitals without teaching programs that accept these residents will not be penalized.
  • As mandated by the CARES Act, long-term acute-care hospitals can now accept any acute-care hospital patients and be paid at a higher Medicare payment rate if they accept patients from acute care hospitals.
  • CMS will not reduce Medicare payments for teaching hospitals that shift their residents to other hospitals to meet COVID-related needs, and hospitals without teaching programs that accept these residents will not be penalized.
  • Consistent with a change made for hospitals, CMS is waiving a requirement for ambulatory surgery centers to periodically reappraise medical staff privileges during the COVID-19 emergency declaration, allowing physicians and other practitioners whose privileges are expiring to continue to take care of patients.
  • CMS is allowing payment for certain partial hospitalization services – that is, individual psychotherapy, patient education, and group psychotherapy – that are delivered in temporary expansion locations, including patients’ homes.
  • CMS is temporarily allowing Community Mental Health Centers to offer partial hospitalization and other mental health services to clients in the safety of their homes. Previously, clients had to travel to a clinic to get these intensive services. Now, Community Mental Health Centers can furnish certain therapy and counseling services in a client’s home to ensure access to necessary services and maintain continuity of care.
Telehealth in Medicare Further Expanded
  • For the duration of the COVID-19 emergency, CMS is waiving limitations on the types of clinical practitioners that can furnish Medicare telehealth services. Prior to this change, only doctors, nurse practitioners, physician assistants, and certain others could deliver telehealth services. Now, other practitioners are able to provide telehealth services, including physical therapists, occupational therapists, and speech language pathologists.
  • Hospitals may now bill for services furnished remotely by hospital-based practitioners to Medicare patients registered as hospital outpatients, including when the patient is at home and the home is serving as a temporary provider based department of the hospital. Examples of such services include counseling and educational service as well as therapy services.
  • Hospitals may bill as the originating site for telehealth services furnished by hospital-based practitioners to Medicare patients registered as hospital outpatients, including when the patient is located at home.
  • CMS previously announced that Medicare would pay for certain services conducted by audio-only telephone between beneficiaries and their doctors and other clinicians. CMS broadened that list to include many behavioral health and patient education services. CMS also increased payments for these telephone visits to match payments for similar office and outpatient visits. This would increase payments for these services from a range of about $14-$41 to about $46-$110. The payments are retroactive to March 1, 2020.
  • Until now, CMS only added new services to the list of Medicare services that may be furnished via telehealth using its rulemaking process. For the duration of the emergency, CMS has changed this process and will now add new telehealth services on a sub-regulatory basis, considering requests by practitioners now learning to use telehealth as broadly as possible.
  • As mandated by the CARES Act, CMS is paying for Medicare telehealth services provided by rural health clinics and federally qualified health clinics. Previously, these clinics could not be paid to provide telehealth expertise as “distant sites.” Now, beneficiaries located in rural and other medically underserved areas will have more options to access care from their home without having to travel.
  • CMS is waiving the video requirement for certain telephone evaluation and management services, and adding them to the list of Medicare telehealth services. As a result, Medicare beneficiaries will be able to use an audio-only telephone to get these services.
Accountable Care Organizations
  • CMS is making changes to the Medicare Shared Savings Program to give the 517 accountable care organizations (“ACOs”) greater financial stability and predictability during the COVID-19 pandemic.
  • CMS is forgoing the annual application cycle for 2021 and giving ACOs whose participation is set to end this year the option to extend for another year. ACOs that are required to increase their financial risk over the course of their current agreement period in the program will have the option to maintain their current risk level for next year, instead of being advanced automatically to the next risk level.
Home Health Services
  • Nurse practitioners, clinical nurse specialists, and physician assistants can now provide home health services, as mandated by the CARES Act. These practitioners can now (1) order home health services; (2) establish and periodically review a plan of care for home health patients; and (3) certify and re-certify that the patient is eligible for home health services. Previously, home health beneficiaries could only receive home health services with the certification of a physician.
  • To bolster the U.S. healthcare workforce amid the pandemic, CMS continues to remove barriers for hiring and retaining physicians, nurses, and other healthcare professionals to keep staffing levels high at hospitals, health clinics, and other facilities. CMS also is cutting red tape so that health professionals can concentrate on the highest-level work for which they’re licensed.

The changes were enacted at the request of healthcare providers across the country, as well as at the direction of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which was passed by Congress and signed into law by President Trump on March 27th, 2020. Providers and states do not need to apply for these most recent blanket waivers and can begin using the flexibilities immediately.

For more information on these and other regulatory changes made during the COVID-19 public health emergency, do not hesitate to contact Chad Gillam.