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COVID-19 Pandemic: Dealing with Emergency Waivers, Provider Relief Funding, and Potential Audits

by Steven M. Harris, Esq. •

  • Separate each type of relief fund payment into its own account to track expenses;
  • Review specific requirements for each relief fund payment’s terms and conditions;
  • Create digital and/or paper files for each relief fund payment and related services;
  • Assign a point person or accountant to conduct preliminary or random reviews of patient records and document relief fund payment expenditures; and
  • Consult with an attorney to review records and ensure compliance with all requirements.

Waivers and Flexibility

Starting in March 2020, HHS and CMS released numerous blanket waivers and emergency flexibility for healthcare providers during the COVID-19 public health emergency. These include:

  • CMS provider/practitioner cross-state practice and relaxed enrollment requirements;
  • CMS reductions in certain paperwork, record documentation, and signature requirements;
  • CMS waivers for various Stark law (prohibiting physician self-referrals) arrangement sanctions;
  • CMS physician supervision flexibility for certain procedures and practitioners; and
  • CMS Medicare fee-for-service (FFS) flexibility for physician and hospital services.

CMS clearly stated its focus on maintaining oversight for activities occurring during the public health emergency and will continue to monitor for accurate billing practices by coordinating with state survey agencies, OIG, and the U.S. Government Accountability Office. The OIG similarly announced in June 2020 that it would increase its focus on reviewing provider claims related to COVID-19 add-on testing due to the potential for fraud and abuse that may result from CMS waivers for provider ordering of COVID-19 tests.

In late March 2020, CMS suspended most Medicare FFS medical reviews, including for pre-payment medical reviews conducted by Medicare administrative contractors (MACs) under the Targeted Probe and Educate program, as well as post-payment reviews conducted by MACs, supplemental medical review contractors, and recovery audit contractors. In July, CMS indicated its intent to discontinue this enforcement discretion beginning Aug. 3, 2020, regardless of the public health emergency status. On Aug. 4, 2020, CMS posted a physician fee schedule proposed rule in the Federal Register soliciting comments on extending or enshrining some temporary changes.

Providers should prepare a compliance plan to transition public health emergency waiver activities back to standard practices at the official end of the public health emergency.

Best Practices: Providers should prepare a compliance plan to transition public health emergency waiver activities back to standard practices at the official end of the public health emergency, maintain thorough documentation of all public health emergency services, and promptly conduct a preliminary review of all claims submitted directly following the end of the public health emergency.

If selected for an FFS review of public health emergency-related claims, providers should discuss with their MAC any COVID-19-related hardships they have experienced that could affect audit response times. Providers should likewise contact an attorney to examine any letters or notices of claims potentially selected for review to best prepare for possible appeals or other adverse actions.