In March 2020, life as we knew it changed due to COVID-19. Health care delivery altered dramatically to accommodate the virus. The pandemic disrupted normal routines of patients and providers. In response, the Centers for Medicare and Medicaid Services (CMS) issued a flurry of Public Health Emergency (PHE)-related rules, waivers and guidance. These PHE-related materials purport to give flexibility to a health care system interrupted by a crisis that has affected patients and providers alike. However, as the frenetic pace of CMS-issued materials is currently waning, there is growing confusion about how CMS is implementing the PHE rules, waivers and guidance. Advocates are increasingly concerned that long-established patient protections and rights that should attach to these new flexibilities have been unjustly reduced under the PHE-related rules, waivers, and guidance.
A case in point: The Center for Medicare Advocacy has been assisting an individual who appears to meet the criteria for additional Medicare coverage because of the PHE. This CMA Alert will first discuss the particular PHE waiver under which the individual seeks coverage, and then explain how the law and facts in the case should be analyzed to award qualifying Medicare coverage.
Relevant COVID-19 Related Waiver: Allowing Medicare SNF Coverage Beyond 100 days (Section 1812(f) of the Social Security Act)
CMS issued a March 13, 2020 letter from CMS Administrator Verma allowing Medicare beneficiaries to: 1) exhaust the typical coverage of 100 days of skilled nursing facility (SNF) and 2) have coverage for an additional 100 days in a SNF, without satisfying a new benefit period, in certain COVID-19 related circumstances. This was done under authority provided by Section 1812(f) of the Social Security Act. Specifically, the Administrator’s letter stated, in pertinent part:
…we will recognize special circumstances for certain beneficiaries who, prior to the current emergency, had either begun or were ready to begin the process of ending their spell of illness after utilizing all of their available SNF benefit days. Existing Medicare regulations state that these beneficiaries cannot receive additional SNF benefits until they establish a new benefit period (i.e., by breaking the spell of illness by being discharged to a custodial care or non-institutional setting for at least 60 days). However, the dislocations resulting from the emergency (including emergency-related measures that could result in discharge delays) may delay or prevent such beneficiaries from commencing or completing the process of ending their current benefit period and renewing their SNF benefits that would have occurred under normal circumstances… Therefore, we are also utilizing the authority under section l8l2(f) of the Act to provide renewed coverage for extended care services which will not first require starting a new spell of illness for such beneficiaries, who can then receive up to an additional 100 days of SNF Part A coverage for care needed as a result of the above-captioned emergency.
In addition to the Administrator’s March 13, 2020 letter, CMS has further stated that if a person has a continued skilled care need (such as a feeding tube), that is unrelated to the COVID-19 emergency, then the beneficiary cannot renew his or her SNF benefits under the Section 1812(f) waiver as it is the continued skilled care need, and not COVID-19, that is preventing the beneficiary from beginning the 60 day break in the spell of illness.
In a subsequent Medicare Learning Network (MLN) publication, CMS discusses using the “DR” modifier code for billing beyond 100 days in a SNF for COVID-19 related days and states,
In addition, for certain beneficiaries who exhausted their SNF benefits, it authorizes renewed SNF coverage without first having to start a new benefit period (this waiver will apply only for those beneficiaries who have been delayed or prevented by the emergency itself from commencing or completing the process of ending their current benefit period and renewing their SNF benefits that would have occurred under normal circumstances).
One SNF industry publication describes the waiver as follows:
If the patients, under normal circumstances, would never have been on the road to reaching a non-skilled level of care for 60 days, they cannot be added for another 100 Medicare days. The question is whether the emergency situation interrupted the patient’s path to 60 consecutive days of non-skilled, custodial care.
Case Study: Ms. M
In early March 2020, Ms. M was admitted to a SNF. She needed daily skilled care while she awaited a surgical procedure. Ms. M was scheduled to meet with her surgeon in mid-Marchand discuss the 90-120 minute procedure she would undergo. The surgery was to be followed by a 2 week rehab stay at the SNF. She expected to have surgery and be discharged from the SNF sometime in April, long before her 100-day SNF Medicare coverage expired. But, COVID-19 disrupted those plans.
Immediately prior to Ms. M’s mid-March surgical consultation, COVID-19 precluded her pre-op appointment. The appointment was later re-scheduled multiple times because the surgeon kept delaying the opening of his office due to the virus. Finally, Ms. M was able to meet with her surgeon in mid-May, but as a result of COVID-19 delays scheduling “elective” surgeries, Ms. M’s surgery will not be possible until the beginning of July. She remains in isolation at the SNF because other residents have been diagnosed with COVID-19. As of the end of May, Ms. M’s first 100 days of SNF coverage expired although she continued to need daily skilled care.
Ms. M Should be Allowed Another 100 Days of Medicare SNF Coverage
Ms. M, and her doctor, had a definitive plan for her to have surgery, rehabilitate, and leave the SNF in April, at which point she would have started toward a new benefit period, also known as a 60-day break in skilled care. She was delayed/prevented from completing the process of ending her current benefit period and starting to renew her SNF benefits that would have occurred under normal circumstances, but for COVID-19 delaying her plans. Because COVID-19 interrupted her path toward what would have been reasonably expected to be a new benefit period, she meets the criteria for an additional 100 days of SNF coverage, which should carry her through her July surgery and subsequent rehabilitation.
Barriers to Application of the Waiver under Section 1812(f)
Although Ms. M’s case appears to be a factual fit for the waiver, application of this waiver, and other waivers, rules and guidance, does not appear to be well understood/executed by CMS or its contractors. In the understandable haste to create and disseminate information, CMS may have overlooked practical application and attention to detailed implementation. The Center for Medicare Advocacy has also heard that private Medicare Advantage (MA) plans believe waivers do not apply to MA plans. Now is the time for CMS to circle back and provide additional guidance.
In Ms. M’s case, barriers to application of the waiver have included the following:
- SNF does not understand how the waiver applies, nor does it appear to want to facilitate a waiver.
- SNF will not provide the appropriate documentation for the file.
- SNF provided a Notice of Medicare Non-Coverage (NOMNC), which Ms. M appealed, but the Medicare Quality Improvement Organization (QIO), Livanta, had not heard of the waiver and had no protocols for collecting information or evaluating qualifications for a waiver.
- Livanta (three different Livanta representatives) told Ms. M that she could not submit any written evidence, they would only take an oral statement from her over the phone. When an oral statement was made on Ms. M’s behalf, Livanta made extensive unilateral reductions/changes to the oral statement.
- Livanta made no attempt to provide any findings or decisions in writing to Ms. M about the appeal, nor did they call her.
- Representatives at 1-800-MEDICARE stated there was no process for beneficiaries to apply for an extension of benefits under the waiver. They did say that only the SNF could apply for an extension and that a “hot-line” existed for SNFs if the SNF needed guidance.
- The regional CMS office overseeing the state where Ms. M resides wrote a letter to Ms. M.’s Congressman about her case, stating only the facility’s right to invoke the waiver (no beneficiary right) stating “if the SNF would like to cite and document for their records how the emergency itself is keeping [Ms. M] from an appropriate discharge…the SNF may choose to exercise that provision of the…waiver…the SNF would need to weigh [patient and facility-specific circumstances] in deciding whether to exercise that provision of the waiver. If the SNF invokes the waiver…we hope this information clarifies the flexibilities allowable in this situation.” (emphasis added)
- Ms. M’s congressman’s office later called the CMS regional office and then relayed to Ms. M, “the problem seems to be that they [CMS] see the waiver as something to help nursing homes by giving them additional flexibility, not as a way to help beneficiaries.”
The COVID public health emergency has been particularly harmful for Medicare beneficiaries and their caregivers, and devastating for nursing home residents. Mistakes and oversights may have been understandable during the implementation of the rapidly-evolving response to COVID-19. However, relaxing or removing foundational principles of beneficiary due process rights, such as the right to appeal erroneously denied benefits (even those provided through waiver processes) and the right to obtain and challenge appeal-related notices, are not an acceptable sacrifice in order to allow “flexibilities” for providers. Whether in an emergency or not, CMS should at least put Medicare beneficiaries on equal footing with providers, and ensure their legally mandated rights and protections are honored.
Please inform the Center for Medicare Advocacy of experiences pursing effectuation of PHE rules, waivers, or guidance at Communications@MedicareAdvocacy.org.