Morris Manning & Martin, LLP

What Does a State of Emergency Mean for Healthcare Providers

03.16.2020

On Friday, March 13, a national State of Emergency was declared. Georgia followed suit declaring a State of Emergency in Georgia. CMS has quickly responded with measures intended to increase physician availability, increase bed flexibility, and reduce the day-to-day administrative burden on hospitals. A summary of the response is below. In addition, information on state licensure and CON waivers is provided below. Please access our online resources linked at the bottom of this page or contact MMM for further information:

CMS Waivers

  • CMS is waiving the 3-day prior hospitalization for SNFs where a SNF is needed to house patients as a result of hospital overload. Thus, SNFs can receive reimbursement for such care. For hospitals--you may transfer patients to SNFs even if the patient hasn’t been in the hospital for 3 days in an emergency. In addition, SNFs may keep patients for longer than the typical maximum.
  • For CAHs, CMS is waiving the 25-bed limitation. CMS is also waiving the 96-hour length of stay limitation. Therefore, CAHs may house patients in temporary or observations beds and may keep patients for longer than 96 hours.
  • For all hospitals, CMS is allowing hospitals to house patients in excluded distinct units. Hospitals may use IRF (CIPR), psychiatric, or LTAC units to house patients. Documentation should be clear that the patient is being housed in an excluded unit due to coronavirus capacity issues. On the other side, hospitals may also move patients housed in a distinct part excluded CIPR or psychiatric unit to acute care beds where appropriate (for example if it makes sense to isolate coronavirus patients in a distinct part CIPR unit and to move the CIPR patients to an acute care bed).
  • DME suppliers may replace destroyed or damaged DME without a face-to-face requirement, physician order or new medical necessity documentation. Suppliers should document a narrative description of why the DME was replaced.
  • For LTCHs, patients admitted for coronavirus related reasons, such as overcrowding, may exclude such patients from the 25-day Medicare requirement.
  • For Home Health Agencies, relief will be provided on the timeframe related to OASIS transmission. MACs may extend the auto-cancellation date or RAPs.
  • For physicians and other licensed providers, Medicare and Medicaid are temporarily waiving the requirement that providers be licensed in the state in which they are practicing. CMS is also allowing providers to render services outside of their state of enrollment.
  • For physicians and other licensed providers, CMS is establishing a toll-free hospital for non-certified Part B suppliers, physicians, and non-physician practitioners to enroll to receive temporary billing privileges. CMS is waiving the application fee, background checks, and site visit requirements. CMS is also postponing all revalidation actions.
  • For all provider types and supplier types, CMS is adjusting its appeals timeframe by providing extensions to file appeals and providing other flexibility in appeals requests.
  • Medicaid waivers: States may request Section 1135 waivers of various requirements such as pre-authorization requirements, state licensure requirements, provider enrollment requirements, and nursing home screening requirements. This is state by state, and more information will become available depending on state needs.

Please note that 1135 waivers of CMS rules do not waive state laws and rules, including physician licensure rules. This may be waived on a state-by-state basis.

Georgia Licensure Requirements During an Emergency

Georgia licensure rules allow the Department to suspend enforcement of such rules in the event that the Governor has declared a State of Emergency. We expect the Department of Community Health to take such action, and will continue to update our clients as this develops. In the meantime however, hospitals should take actions that they must take in order to care for their patients during this time, which could include emergency bed capacity expansion. 

Georgia CON Law Waivers

Technically, Georgia continues to require an application for projects otherwise requiring a CON when a State of Emergency has been declared, but the application is generally required to be approved within 30 days. It is not clear that this has been enforced in the past, and we are seeking further information to verify that this is not the case here where hospitals may need to increase their bed capacity or use units, such as psychiatric or CIPR units, for other purposes. We would certainly work with any client where the Department of Community Health sought to enforce these measures where a client was acting in good faith in instituting temporary additional beds or services in response to the coronavirus.

Resources

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

O.C.G.A. 31-6-43(k)

Ga. R. & Regs. 111-8-40-.15

Please contact MMM’s healthcare group for additional information.