HHS Office of Inspector General Updates its FAQs on Arrangements During the COVID-19 Public Health Emergency

On July 29, 2020, the Department of Health and Human Services Office of Inspector General (OIG) updated its FAQs published in response to inquiries from the healthcare community on the application of the OIG’s administrative enforcement authorities to arrangements connected to the COVID-19 public health emergency. More specifically, the OIG concluded that if certain conditions are met, there is a low risk of fraud and abuse for an oncology practice to offer free or discounted lodging to patients who are Federal health care program beneficiaries and who, prior to the COVID-19 emergency, would have  qualified for free or discounted housing at a nonprofit lodging facility while receiving chemotherapy or radiation treatment. Applicable conditions include: (1) the patient must reside more than fifty miles from the treatment site; (2) the patient is an established patient of the practice who scheduled the treatment prior to the offering of the free or discounted lodging; (3) the lodging aid would facilitate the patient’s access to care while receiving treatment; (4) the practice reasonably believes that the patient would have qualified for free or discounted lodging during treatment at a nonprofit lodging facility that is closed as a result of the COVID-19 emergency; (5) the aid is in-kind (as opposed to a stipend given directly to the patient); (6) the lodging is in close proximity to the treatment site; (7) the practice does not advertise the availability of this aid; and (8) the lodging is provided during the COVID-19 emergency. Healthcare providers are invited to submit inquiries to OIGComplianceSuggestions@oig.hhs.gov after reading these FAQs.

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.

Revised Medicare Billing Guidance Allows for Reimbursement for COVID-19 Counseling During Testing

On July 30, 2020, the Centers for Medicare & Medicaid Services (CMS) and the Centers for Disease Control and Prevention (CDC) revised its billing guidance to allow for payment to healthcare professionals who counsel patients, at the time of COVID-19 diagnostic testing, about the importance of self-isolating following testing and prior to the onset of symptoms. Providers should discuss with patients the signs and symptoms of COVID-19, the immediate need for isolation (including before test results are available), and the importance of informing their close contacts to separate from the tested individual. The patient should also be informed that if he or she tests positive, the patient will be contacted by the public health department for contact tracing, and that services may be available to aid the patient’s self-isolation. A counseling check list tool and links to additional information 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.

HHS Publishes Report on Telehealth Utilization Trends

On July 28, 2020, the Department of Health and Human Services released a new report showing utilization trends of telehealth services for fee-for-service Medicare services. Based on claims data collected from January through early June, the report found that in response to the COVID-19 public health emergency (PHE) and the waiver of restrictions on where telehealth could be delivered and expansion of the types of services and service providers reimbursable under Medicare telehealth adoption increased, at the peak, by nearly fifty percent in primary care. The report, available here, also suggests that telehealth will have lasting impacts on the way healthcare services are delivered after the PHE ends.

Reminder That Physician Orders Aren’t Required for COVID-19 Diagnostic Testing in Kentucky

On July 29, 2020, Governor Beshear reiterated that an order from a licensed clinician is not necessary for laboratory service providers to perform and bill for FDA-approved COVID-19 diagnostic tests. Additionally, pursuant to the Cabinet for Health and Family Services Department for Public Health Order, health insurers may not require a licensed clinician’s order from beneficiaries or laboratories as a precondition of covering a COVID-19 diagnostic test. Governor Beshear’s announcement was in response to reports that some individuals seeking tests are still being asked to provide a doctor’s order.