HHS OIG Will Audit Medicare Payments for COVID-19 Patient Discharges

As we previously reported, the Centers for Medicare & Medicaid Services (CMS) recently published new guidance requiring hospitals to document a positive COVID-19 laboratory test to receive a 20% increase in the Medicare Severity-Diagnosis Related Group (MS-DRG) weighting factor for their inpatients being treated for COVID-19. The Department of Health and Human Services Office of Inspector General (HHS OIG) has now updated its work plan providing that it will audit Medicare payments for inpatient discharges billed by hospitals for COVID-19 patients for compliance with Federal requirements, including the positive COVID-19 laboratory test requirement. Hospitals should maintain comprehensive clinical and financial documentation to support their actions and billing practices and avoid potential recoupments from audits in the future.  

CMS Hasn’t Started Recouping Loans by Garnishing Medicare Pay to Hospitals and Providers

As we reported on August 7, 2020, hospitals and providers are facing repayments of loans received this spring through the Medicare Accelerated and Advance Payment Programs. The first of these repayments became due in mid-August, 120 days after the first loans were issued.  These loans were set to be recouped through Medicare claim reimbursement withholding by the Centers for Medicare & Medicaid Services (CMS).  See the CMS fact sheet here.  However, although neither Congress nor CMS has taken official action to forgive the loans or issue a stay or extension on the loan collection, providers are reporting that CMS has not yet taken action to recoup the loan amounts.  This may afford Congress more time to consider taking action to extend or forgive the loans, as urged by hospital and provider advocacy groups here.

CMS Specifies HCPCS Codes for Services Subject to PHE Cost-Sharing Waivers

In its August 27, 2020 edition of mlnconnects, CMS announced HCPCS codes to use during the Public Health Emergency (PHE) for Medicare Part B claims that are subject to the cost-sharing waivers (coinsurance and deductible amounts) for COVID-19 testing-related services.  Specific HCPCS Cost-Sharing (CS) modifiers must be used on applicable claim lines to identify the service as subject to this cost-sharing waiver by the following provider types: Physicians and Non-Physician Practitioners, Hospital Outpatient Departments paid under the Outpatient Prospective Payment System (OPPS), Rural Health Clinics (RHCs), Federally Qualified Health Centers (FQHCs) and Critical Access Hospitals (CAHs).  CMS stated that if a provider uses the CS modifier with HCPCS codes that are not on the list, the claim will be returned.  On August 26th, CMS also revised page 11 of MLN Matters Special Edition Article SE20011, Medicare Fee-For-Service (FFS) Response to the Public Health Emergency on the Coronavirus (COVID-19), to add information about the HCPCS codes and CS modifiers.  

CMS Will Require Positive COVID-19 Test for Inpatient Medicare Reimbursement Add-On

On August 17, 2020, the Centers for Medicare & Medicaid Services (CMS) published new guidance stating that effective September 1, 2020, hospitals will be required to document a positive COVID-19 laboratory test to receive a 20% increase in the MS-DRG weighting factor for their inpatients being treated for COVID-19. Positive tests must be demonstrated using only the results of viral testing consistent with CDC guidelines either performed during the hospital admission or not more than 14 days prior to the hospital admission (certain limited exceptions apply).

CMS Resumes Routine Provider and Supplier Inspections

On August 17, 2020, the Centers for Medicare & Medicare Services (CMS) announced that it will resume all routine on-site surveys of Medicare and Medicaid certified providers and suppliers. Inspections had been put on hold in March to assist infection control and prioritize providers’ response to the COVID-19 emergency. CMS instructs state survey agencies to resume onsite revisits, certain complaint investigations, and annual recertification surveys as soon as they have the resources to do so.

First Provider Loans Through the Accelerated and Advance Payment Programs Come Due

As we previously reported, the Centers for Medicare & Medicaid Services (CMS) extended the Accelerated and Advance Payment Programs back in March 2020 to allow providers and suppliers to apply for advances on their Medicare payments to offset their costs and losses incurred at the outset of the COVID-19 pandemic, then curbed the programs in April. Now, repayments of the first loans are coming due. Absent a Congressional or CMS extension, 120 days after the loans were issued, CMS will recoup the loan amounts via Medicare claim withholding. Hospitals have one year from the date of the loan payment to repay the full balance of the loan, while Medicare Part A providers and Part B suppliers have 210 days. Hospital and provider advocacy groups are asking Congress to extend the recoupment period for loan recipients given the surge in COVID-19 cases and hospitalizations and the ongoing precarious financial position of hospitals and providers.

CMS Proposes Permanent Expanded Telehealth Benefits

On August 4, 2020, pursuant to Executive Order on Improving Rural and Telehealth Access, the Centers for Medicare & Medicaid Services (CMS) announced proposed permanent changes to extend the availability of certain telehealth services even after the COVID-19 public health emergency ends to give Medicare beneficiaries more convenient ways to access healthcare, particularly in rural areas. CMS proposes adding services to the permanent Medicare telehealth list here and seeks to create a category of Medicare telehealth services available on a temporary basis. CMS is soliciting feedback and public comments on the proposed rule which are due by October 5, 2020.

CMS is Reprocessing Physician Telehealth Claims That Were Denied Due to SNF CB Edits

On July 31, 2020, in a late Special Edition of the MLN News, the Centers for Medicare and Medicaid Services (CMS) indicated that claims with dates of service on or after March 1, 2020, for physician telehealth services to Medicare Part A residents in a Skilled Nursing Facility (SNF) had been erroneously denied. The denials resulted from SNF Consolidated Billing (CB) edits that otherwise disallow these claims absent the broad COVID-19 Public Health Emergency (PHE) waivers. CMS reconfirmed that physicians can use CPT codes 99441, 99442, and 99443 (on the list of telehealth codes) during the COVID-19 PHE on Medicare Part B claims for telehealth services to Part A SNF residents.  CMS stated that physicians need not take any action to have these denied claims reprocessed, further stating that Medicare Administrative Contractors (MACs) are reprocessing these claims. CMS advised physicians who had already received payment from the SNF for these telehealth services to return such payments to the SNF once the MAC reprocesses the claim.

CMS Implements New Hospital Procedure Codes for COVID-19-Related Therapeutics

On July 30, 2020, the Centers for Medicare & Medicaid Services (CMS) announced that new procedure codes are being implemented to allow Medicare to identify the use of the therapeutics remdesivir and convalescent plasma for treating hospital in-patients with COVID-19. These codes will be effective August 1, 2020 and are intended to assist tracking and research efforts of the effectiveness of these treatments. Instructions on these new codes are available here.

Legal Professionals Weigh the Long-Term Impact of CMS 1135 Pandemic Waivers

In response to the COVID-19 public health emergency (PHE), the Centers for Medicare & Medicaid Services (CMS) published numerous 1135 blanket waivers (available here) to help counteract the strains and limitations placed on healthcare providers caused by the virus. On July 24, 2020, the American Health Lawyers Association published a detailed article considering the complexities of continued or amended waivers in: (1) the expansion of telehealth services; (2) the three-day hospital stay requirement for skilled nursing facility (SNF) coverage; (3) hospitals’ ability to provide SNF care; (4) hospitals’ ability to provide care at different locations; (5) waivers to certain supervision requirements; (6) delegation of duties in long-term care facilities; (7) patient access to records in long-term care facilities and home health agencies; (8) use of focus surveys in long-term care; and (9) other blanket waivers. Considerations regarding access to care, standards of care, and fraud and abuse risks will be forefront to CMS’s and lawmakers’ approaches as they look at long-term changes.