New Waivers And Rules To Allow Hospitals To Respond To The COVID-19 Crisis

President Trump, through an emergency declaration and rulemaking, has announced temporary changes, in effect for the duration of the emergency, which will allow health systems and their hospitals to have the capacity they require to absorb and manage surges in COVID-19 patients. See, https://www.cms.gov/files/document/covid-hospitals.pdf. The following actions for hospitals may be taken immediately:

Increase in Hospital Capacity via Temporary Sites. CMS' "Hospital Without Walls Initiative" allows hospital services to be provided in other healthcare facilities or sites so that COVID-19 patients are isolated to help efforts around infection control and preservation of PPE. This means that hospitals can set up temporary expansion sites to help address the urgent need to expand capacity to care for patients at remote locations that are not considered part of the facility, such as hotels or community facilities. Relaxing of Conditions of Participation. CMS is relaxing CoPs allowing hospitals to focus on patient care and enroll ambulatory surgery centers and freestanding emergency departments to enroll as hospitals to address hospital capacity issues on a temporary basis. Information for ASCs to bill as hospitals can be found at: https://www.cms.gov/files/document/provider-enrollment-relief-faqs-covid-19.pdf Offsite Patient Screening. CMS is waiving certain EMTALA requirements to allow hospitals, psychiatric hospitals and critical access hospitals to screen patients at a location offsite from the hospital's campus to prevent the spread of COVID-19 as long as not inconsistent with the state emergency preparedness plan. Paperwork Requirements. CMS is waiving specific paperwork requirements with respect to: (i) timeframes in providing a copy of a medical record (see 42 CFR §482.13(d)(2)); (ii) patient visitation, including the requirement to have written policies and procedures on visitation of patients who are in COVID-19 isolation and quarantine processes (see 42 CFR §482.13(h)); and (iii) seclusion (see 42 CFR §482.13(e)(1)(ii)). Physical Environment. CMS will permit non-hospital buildings/space to be used for patient care and quarantine sites, provided that the location is approved by the State. Temporary Expansion Sites. CMS is waiving the provider-based rules per 42 CFR §413.65 to allow hospitals to establish and operate as part of the hospital at any location meeting the conditions of participation for hospitals in operation. This waiver also allows hospitals to change the status of their current provider-based department locations to the extent necessary to address the needs of hospital patients as part of the State or local pandemic plan. Workforce Sterile Compounding. CMS is waiving hospital sterile compounding requirements to allow used face masks to be removed and retained in the compounding area to be re-donned and reused during the same work shift in the compounding area only to conserve scarce face mask supplies. Medical Staff Requirements. CMS is waiving the Medical Staff requirements at 42 CFR §482.22(a)(1)-(4) to allow for physicians whose privileges will expire to continue practicing at the hospital and for new physicians to be able to practice in the hospital before full medical staff/governing body review and approval to address workforce concerns related to COVID-19. Physician Services. CMS is waiving 42 CFR §482.12(c), which requires that Medicare patients be under the care of a physician. This allows hospitals to use other practitioners, such as physician assistants and nurse practitioners to the fullest extent possible. Anesthesia Services. CMS is waiving the requirements at 42 CFR §482.52(a)(5),42 CFR §485.639(c)(2), and 42 CFR §416.42 (b)(2) that a certified registered nurse anesthetist (CRNA) is under the supervision of a physician. CRNA supervision will be at the discretion of the hospital or Ambulatory Surgical Center (ASC), and state law. This waiver applies to hospitals, CAHs, and ASCs. These waivers will allow CRNAs to function to the fullest extent of their licensure, and should be implemented so long as they are not inconsistent with a State emergency plan. Respiratory Care Services. CMS is waiving the requirement at 42 CFR §482.57(b)(1) that hospitals designate in writing...

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