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  • Washington Highlights

    CMS Releases Interim Final Rule on COVID-19 Regulatory Changes

    Andrew Amari, Hospital Policy and Regulatory Specialist

    The Centers for Medicare and Medicaid Services (CMS) released on March 31 an interim final rule, “Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency.”

    The rule addresses a variety of payment and practice needs for patients and health care providers raised in response to the COVID-19 pandemic, such as expanding telehealth practice and relaxing rules for teaching physician practice.

    The CMS published a fact sheet with additional information regarding regulatory changes to help the health care system prepare for a COVID-19 patient surge. Comments on the interim final rule are due June 1 by 5 p.m. ET. The changes in the rule retroactively apply beginning on March 1, 2020.

    Some of the key provisions of the interim final rule are highlighted below:


    • Provides payment for services delivered via telehealth as if those services were delivered in person for both new and established patients (including virtual check-ins).
    • Allows for use of cellphones that have video capability for telehealth services.
    • Assigns the telehealth payment rate at the rate ordinarily paid under the Physician Fee Schedule where the services were furnished in person. Claims should reflect the place of services for services delivered via telehealth and include modifier 95 to these claims.
    • Provides flexibility for providers to waive or reduce cost-sharing for telehealth visits paid by federal programs.
    • Permits the Office for Civil Rights to waive penalties under the Health Insurance Portability and Accountability Act for noncompliance if health care providers make a good faith provision of telehealth services.
    • Permits practitioners to render telehealth services from home without reporting their home address on their Medicare enrollment.
    • Provides for telehealth in a variety of different settings.  
    • Allows clinicians to provide virtual check-in services (HCPCS codes G2010, G2012) to both new and established patients.
    • Permits clinical social workers, clinical psychologists, physical therapists, occupational therapists, and speech language pathologists to provide e-visits. (HCPCS codes G2061-G2063).
    • Permits clinicians to provide certain services by telephone to their patients (CPT codes 98966 -98968; 99441-99443).

    Teaching Physicians and Residents

    • Amends rules relating to teaching physician direct supervision, physical presence requirements, and resident billing: 
      • Allows teaching physicians to meet the requirement of physical presence during the key or critical part of the service through direct supervision via virtual means.
      • Permits teaching physicians to bill for the following services of residents, provided the resident is under the direct supervision of the teaching physician through virtual means:
        • Evaluation and management services under the primary care exception in primary care centers.
        • Interpretation of diagnostic radiology and other diagnostic tests.
        • Psychiatry services.
      • Exceptions do not apply in the case of surgical, high risk, interventional, or other complex procedures; services performed through an endoscope; and anesthesia services.
      • Allows residents under quarantine — who are otherwise able to furnish services that do not require face-to-face patient care — to bill for teaching physician services if the resident is under direct supervision via virtual means.
      • Permits moonlighting residents to bill, provided that the resident is fully licensed to practice and that the services are not performed as part of the approved graduate medical education program. This provision primarily applies to fellows.

    Direct Graduate Medical Education (DGME) and Indirect Medical Education (IME)

    • Allows hospitals to claim a resident for DGME and IME if the hospital pays the resident’s salary and fringe benefits for the time a resident is at home or in the home of a patient who already is the patient of the physician or hospital and performs services within the scope of the approved residency program.

    Part C and Part D Quality Star Ratings

    • Amends calculations of 2021 and 2022 Part C and D Star Ratings to incorporate changes to address the expected impact of the pandemic on data collection and performance.
    • Details how ratings will be calculated for 2021 and 2022 to ensure there is no diversion from handling day-to-day care during the emergency to meet data collection needs and that actual performance in 2020 during the emergency period does not negatively impact 2022 ratings.

    Medicare Shared Savings Program (SSP) Accountable Care Organizations (ACOs)

    • Revises the SSP’s extreme and uncontrollable circumstances policy to extend protection to ACOs that may not be able to completely and accurately report quality data for 2019.
    • Clarifies that the policy regarding adjusting the amount of shared losses an ACO owes would not apply to the 2019 performance year but will apply for 2020 performance year reconciliation.

    Innovation Center Models

    • Expands the Comprehensive Care for Joint Replacement Model’s extreme and uncontrollable circumstances policy to include the pandemic, which will apply to all hospitals in the model.
    • Caps actual episode expenditures at the target amount for episodes initiated within 30 days prior to the declared state of emergency or during the state of emergency.
    • Extends the fifth model year by three months through March 31, 2021.

    Inpatient Hospital Services Furnished Under Arrangements Outside the Hospital

    • Amends the “under arrangements” policy so that, when routine services are provided “under arrangements” outside the hospital to its inpatients, these services are considered as being provided by the hospital. Services provided to patients outside the hospital are considered as being provided “under arrangement.” 

    Merit-based Incentive Payment System (MIPS)

    • Modifies the MIPS Extreme and Uncontrollable Circumstances policy to allow clinicians who have been adversely affected by COVID-19 to submit an application and request reweighting of the MIPS performance categories for the 2019 performance year.

    Stark Law Waivers

    • Permits certain physician referrals for certain health care services payable by Medicare that would otherwise violate the Stark Law, such as hospitals paying above or below fair market value to rent equipment or receive services from physicians (or vice versa) and hospitals providing benefits to medical staffs, such as daily meals, laundry service, and child care services.