Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

CMA Alert | July 9, 2020

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  1. CMS Issues Clarifications on How to Obtain Additional Coverage during the Pandemic
  2. Special Report – Additional Infection Control Surveys at Nursing Facilities Show Same Results: Few Deficiencies, Most Called “No Harm”
  3. Center for Medicare Advocacy Comments on Coronavirus Reporting Requirements for Nursing Facilities
  4. Recent COVID-19 Data Show Disparities in Rate of Infections

CMS Issues Clarifications on How to Obtain Additional Coverage during the Pandemic

The Centers for Medicare & Medicaid Services (CMS) continues to clarify instructions on authorized Medicare coverage waivers and modifications due to the COVID-19 public health emergency (PHE) through a Medicare Learning Network (MLN) publication.[1]

In a CMA Alert last month, the Center for Medicare Advocacy presented a case study that described the circumstances under which a beneficiary may qualify for an additional 100 days of coverage in a skilled nursing facility (SNF) due to the PHE.[2]

CMS has recently confirmed that “beneficiaries who do not themselves have a COVID-19 diagnosis may nevertheless be affected by the PHE.”[3] CMS clarified that if “the beneficiary is receiving the very same course of treatment as if the emergency had never occurred”, the beneficiary would not qualify for additional SNF days.[4] However, the qualification states that a “determination basically involves comparing the course of treatment that the beneficiary has actually received to what would have been furnished absent the emergency. Unless the two are exactly the same, the provider would determine that the treatment has been affected by – and, therefore, is related to – the emergency.”[5]

CMS asks providers to work with the respective Medicare Administrative Contractors (MACs) to deliver any documentation needed to establish that the COVID-19 emergency applies for the benefit period waiver.[6] CMS further instructs providers to utilize the Health Insurance Prospective Payment System (HIPPS) code that was billed when the beneficiary reached the end of the SNF benefit period.[7] CMS documents specific provider billing instructions in order to process a claim for an additional 100 benefit days in the SNF.[8]

The CMS MLN also outlines detailed instructions for providers to bill for PHE related waivers and modifications other than SNF services including the following services: inpatient psychiatric, inpatient rehabilitation, long term care hospital, critical access hospitals, neoplastic disease hospital, durable medical equipment (and prosthetic, orthotics and supplies)(DMEPOS), replacement prescription fills, community mental health centers, some end stage renal disease services, face-to-face requirements for national and local coverage determinations, some respiratory, home anticoagulation management, infusion pump and therapeutic continuous glucose monitor national and local coverage determinations, DMEPOS prior-authorization, Part B prescription drug refills, and signature requirements for proof of delivery.[9]

Beneficiaries and providers have expressed a significant amount of confusion on how to bill for these PHE-related waivers and modifications. The MLN should help to clarify those steps and help to obtain Medicare coverage for beneficiaries who qualify for services.

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[1] https://www.cms.gov/files/document/se20011.pdf
[2] https://medicareadvocacy.org/covid-19s-impact-on-beneficiary-rights-a-case-study-examining-medicare-coverage-exceeding-100-days-in-a-skilled-nursing-facility/
[3] https://www.cms.gov/files/document/se20011.pdf, page 11 of July 8, 2020 version of the MLN.
[4] Id.
[5] Id.
[6] Id., page 12.
[7] Id.
[8] Id., pages 12-13.
[9] Id., pages 2-6.

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Special Report – Additional Infection Control Surveys at Nursing Facilities Show Same Results: Few Deficiencies, Most Called “No Harm”

On March 4, 2020, the Centers for Medicare & Medicaid Services (CMS) suspended non-emergency inspections of health care facilities[1][2] and on March 20, CMS limited surveys to two types: targeted infection control surveys and complaint/facility-reported incidents triaged as immediate jeopardy.[3]  On June 24, 2020, CMS released the results of 9899 targeted infection control surveys going back to March 2020.  These surveys included the 5724 targeted infection control surveys that CMS had released on June 4, 2020.[4]  Accordingly, this report analyzes the 4175 targeted infection control surveys that were released for the first time on June 24.  (CMS will continue to update the data on the last Wednesday of each month.) 

Ninety-nine new infection control deficiencies were cited following the 4175 targeted infection control surveys that were released on June 24.  The results are similar to the results from the first group of 5724 infection prevention and control surveys that CMS released on June 4.  Analysis of the newly released surveys again indicates that only a very small fraction of facilities, 2.37%, received a deficiency for infection prevention and control and 96% of the deficiencies were classified as “no harm” or “substantial compliance.”  In addition, facilities cited with infection prevention and control deficiencies were also more likely than facilities that were not cited with such a deficiency to be operated on a for-profit basis, to have had the remedies of civil money penalties or denial of payment for new admissions imposed in the prior three years, and to be Special Focus Facilities or candidates for the Special Focus Facility program

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[1] CMS, “Suspension of Survey Activities,” QSO-20-12-All (Mar. 4, 2020), https://www.cms.gov/files/document/qso-20-12-all.pdf.
[2] CMS, “Suspension of Survey Activities,” QSO-20-12-All (Mar. 4, 2020), https://www.cms.gov/files/document/qso-20-12-all.pdf.
[3] CMS, ‘Prioritization of Survey Activities,” QSO-20-20-All (Mar. 23, 2020), https://www.cms.gov/files/document/qso-20-20-all.pdf.
[4] On June 4, 2020, CMS released infection control survey data for 5724 nursing facilities that were conducted during the COVID-19 pandemic.  These data showed a dramatic and implausible decline in infection control deficiencies.  Less than three percent of infection control surveys since March cited an infection control deficiency and 161 of 163 of the deficiencies (cited in 162 facilities) were classified as causing residents “no harm.”  The Center for Medicare Advocacy issued two reports about these 163 infection control deficiencies.  CMA, “Special Report: infection Control Surveys at Nursing Facilities: CMS Data are Not Plausible” (Jun. 11, 2020), https://medicareadvocacy.org/wp-content/uploads/2020/06/Infection-Control-Surveys-Report.pdf.; CMA, “Special Report: Nursing Homes Cited with Infection Control Deficiencies during the Pandemic: Poor Results in Health Inspections, Low Staffing Levels” (Jun. 18, 2020), https://medicareadvocacy.org/wp-content/uploads/2020/06/Coronavirus-Report-Infection-Control-Deficiencies-NHC.pdf. 

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Center for Medicare Advocacy Comments on Coronavirus Reporting Requirements for Nursing Facilities 

In an Interim Final Rule with Comment,[1] the Centers for Medicare & Medicaid Services requires nursing facilities to report certain information about coronavirus cases and deaths to the Centers for Disease Control and Prevention (CDC) and to residents and families. In comments submitted July 7, the Center for Medicare Advocacy recommends (1) auditing data submitted by nursing facilities to CDC; (2) imposing per day civil money penalties when facilities report materially inaccurate information to the CDC and when facilities fail to report to residents, families, and staff; and (3) requiring ongoing reporting of infections beyond the COVID-19 pandemic. 

By its terms, the rule authorizes national reporting only during the COVID-19 pandemic. Since infections are the most frequently cited deficiency in nursing facilities, leading to hundreds of thousands of hospitalizations and deaths,[2] and current facility practices have not adequately addressed problems of infections,[3] the Center believes that more attention to infections at the national level is critical.

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[1] CMS-5531-IFC, 85 Fed. Reg. 27550 (May 8, 2020), https://www.govinfo.gov/content/pkg/FR-2020-05-08/pdf/2020-09608.pdf.
[2] CMS reported these statistics in final Requirements of Participation published in October 2016, 81 Fed. Reg. 68688, 68808 (Oct. 4, 2016), https://www.govinfo.gov/content/pkg/FR-2016-10-04/pdf/2016-23503.pdf, and in proposed rules in July 2019, 84 Fed. Reg. 34737, 34746 (Jul. 18, 2019), https://www.govinfo.gov/content/pkg/FR-2019-07-18/pdf/2019-14946.pdf.
[3] GAO, Infection Control Deficiencies Were Widespread and Persistent in Nursing Homes Prior to COVID-19 Pandemic, GAO-20-576R (May 20, 2020), https://www.gao.gov/assets/710/707069.pdf.  See “GAO on Infection Control Deficiencies in Nursing Facilities Before COVID-19 Pandemic: “Widespread,” “Persistent,” “Ignored” (CMA Alert, May 21, 2020), https://medicareadvocacy.org/gao-widespread-snf-deficiencies/.

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Recent COVID-19 Data Show Disparities in Rate of Infections

The Centers for Medicare & Medicaid Services (CMS) recently released preliminary data on COVID-19 infections derived from Medicare claims. According to the CMS snapshot, between January 1 and May 16, 2020, over 325,000 Medicare beneficiaries were diagnosed with COVID-19, and nearly 110,000 of those beneficiaries were hospitalized. The snapshot provides preliminary data based on Medicare fee-for-service claims, Medicare Advantage encounter data, and Medicare enrollment information. Thus, CMS noted that the findings may not be comprehensive or match other publicly available data sources. Some of the data in the CMS snapshot:

  • Among those hospitalized with COVID-19, the five most prevalent chronic conditions for Medicare fee-for-service beneficiaries were: hypertension (79%); hyperlipidemia (60%); chronic kidney disease (50%); anemia (50%); and diabetes (50%).
  • 28% of hospitalized beneficiaries died in the hospital, and 27% were discharged to their homes. The remainder were discharged to skilled nursing facilities (21%) or other healthcare settings.
  • Half of hospitalizations (50%) were less than 8 days, while 9% were 21 days or longer.
  • Rates are also higher for Black beneficiaries (465 hospitalizations per 100,000 beneficiaries), Hispanic beneficiaries (258/100K), and among beneficiaries who are age 85 or older (379/100k).
  • Beneficiaries eligible for Medicare because they have end stage renal disease (ESRD) have the highest COVID-19 hospitalization rate, with 1,341 cases per 100,000 beneficiaries. 
  • Beneficiaries enrolled in both Medicare and Medicaid (dually eligible individuals or duals) also have a higher rate of COVID-19 hospitalizations, with 473 hospitalizations per 100,000 beneficiaries. The rate for beneficiaries enrolled only in Medicare is 112 hospitalizations per 100,000. The rate of COVID-19 hospitalizations for dually eligible individuals is higher across all age, sex, and race/ethnicity groups. 
  • Medicare payments for fee-for-service hospitalizations totaled $1.9 billion, with an average of $23,094 per hospitalization.

CMS Snapshot, available at: https://www.cms.gov/blog/medicare-covid-19-data-release-blog

The New York Times also recently released their detailed analysis of CDC data that found that racial disparities in COVID infections were present throughout the country and across all age groups. Their analysis, “The Fullest Look Yet at the Racial Inequity of Coronavirus” found that “Latino and African-American residents of the United States have been three times as likely to become infected as their white neighbors, according to the new data, which provides detailed characteristics of 640,000 infections detected in nearly 1,000 U.S. counties. And Black and Latino people have been nearly twice as likely to die from the virus as white people, the data shows.”

New York Times Report, available at:

Center for Medicare Advocacy’s previous alerts on this topic:

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