Covid-19 Waivers and HIPAA – 4 Key Areas

Covid-19 waivers and HIPAA

In the past 30 days plus, various agencies of the federal government have issued a dizzying variety of Covid-19 waivers and HIPAA laws and regulations. They do this to improve the ability of the healthcare provider community to respond to the COVID-19 pandemic. Now that the pace issuance of HIPAA and Covid-19 waivers has slowed a bit, it is a good time to briefly review the key Covid-19 provider waivers to make sure you are taking advantage of as many of them as apply.


Covid-19 Waivers for Hospital Providers

CMS has issued a seven-page list of 35 key Covid-19 waivers for hospitals. They are all important in one setting or another, but here are a few that many hospitals may benefit from.

  • Temporary Expansion Sites and Physical Environment: flexibility is allowed for setting up hospital services in other healthcare facilities. Hospitals can use non-hospital buildings/spaces to be used for patient care and quarantine sites provided the site is approved by the state government. Acute care patients can be housed in distinct part units. Psychiatric patients can be moved from a distinct part psychiatric unit to an acute care unit. Same for patients in distinct part rehabilitation units.
  • Orders, Reporting Requirements and Discharge Planning: verbal orders can be authenticated later than 48 hours when a surge of patients occurs. Soft restraints used for an ICU patient who expires can be reported later than the close of business the next day. Discharge planning does not have to include quality measures, data, and comprehensive lists of nursing homes in the geographic area. The entire requirement for a utilization review plan is waived. Nursing care plans and therapeutic diet manuals do not have to be maintained.
  • Accelerated/Advance Payments and Cost Reporting: hospitals can obtain advance payment of Medicare payments. The repayment/recoupment start date has been lengthened to 120 days after the date of the payment. Cost report due dates have been extended by 60 days. 
  • TODAY, April 27, 2020, as of publication of this blog, the accelerated/advance payment program was suspended by CMS while it works on distributing new relief funds approved by Congress and signed by the President that day.
  • Workforce: physicians can be allowed to begin utilizing their privileges in advance of approval of the governing body. Physician Assistants and Nurse Practitioners can fulfill the requirement that all patients be under the care of a physician. Federal requirements for clinical nurse specialists, NPs and PAs in Critical Access Hospitals are waived (NOTE: but state requirements are not!).


Covid-19 Waivers for Physicians & Other Professional Providers

CMS has issued a six-page summary of key Covid-19 Provider Waivers for physicians and other professional providers.

  • Medicare Telehealth: Medicare has expanded the list of services that can be provided via telehealth. The expansion includes inpatient care in hospitals, nursing homes and home visits. Physicians can perform Virtual Check-ins and E-Visits. LCSWs and psychologists, plus physical and occupational therapists, can provide telehealth services. Requirements for monthly face-to-face visits for ESRD patients are permitted via telehealth. The patient’s home can be the originating site for a telehealth visit.
  • Learn here How to use Telehealth in Clinical Practice
  • Direct Physician Supervision: supervision by a physician can be provided under the general supervision standard in hospital outpatient departments and CAHs.
  • Physicians Can Practice Across State Lines:  this applies as long as they are licensed in the state in which they are enrolled in Medicare. They must not be excluded from practice in the new state and must be providing care due to the emergency situation in the new state.
  • Various CMS Provider Enrollment Requirements are Waived.
  • There are 7 Specific Waivers Related to the Stark Law: These range from providing on-duty benefits in excess of the current annual limits to paying above or below fair market value to rent equipment from physicians. (NOTE: Commercial reasonableness standards still apply!)
  • Physicians can Apply for Accelerated/Advance Payments: with the repayment/recoupment period extended to 120 days from the date of the advance payment.  (Note: the accelerated/advance payment program was suspended by CMS on April 27, 2020 while it works on distributing new relief funds approved by Congress and signed by the President that day.)


Covid-19 Waivers for Skilled Nursing Patients

There are a few key Covid-19 provider waivers for skilled nursing facilities.

  • CMS is waiving the requirement for a 3-day prior hospitalization for coverage of an SNF stay, for patients who are transferred as a result of the emergency.
  • CMS is providing relief on the time-frame requirements for Minimum Data Set assessments and transmission.


Covid-19 Waiver and HIPAA

Several provisions reflect key Covid-19 provider waivers related to HIPAA regulations.

  • Consents and Confidential Communications: providers do not have to obtain a patient’s consent to speak to family members or friends involved in a patient’s care. Providers do not have to distribute Notices of Privacy Practices or comply with requests for confidential communications or to opt-out of the facility directory.
  • These Provisions Only Apply During the Public Health Emergency: the hospital must have instituted a disaster protocol. Moreover, the waiver only extends for the 72 hours from the time the disaster protocol was instituted.
  • Covered Entities Such As Hospitals and SNFs Can Disclose PHI about an individual who has Covid-19 to emergency transport personnel who will provide treatment during transport to a hospital emergency department.
  • Covered Entities Can Also Disclose PHI to first Responders who may have been exposed to Covid-19, as long as such disclosure is permitted under state laws governing public health interventions or investigations.

These descriptions are very abbreviated versions of the documentation issued by CMS and the Office for Civil Rights. That documentation should be consulted for complete descriptions of the various waivers and flexibilities. The Fox Group is also available to help any provider who is struggling to understand the waivers, or who wants to expand services to address the pandemic situation.

When you need proven expertise and performance

Jim Hook, MPH

Mr. James D. Hook has over 30 years of healthcare executive management and consulting experience in medical groups, hospitals, IPA’s, MSO’s, and other healthcare organizations.