Tony Evers, Governor of Wisconsin, and Wisconsin Department of Health Services Secretary-designee Andrea Palm have issued another emergency order, Emergency Order #35 (Order #35), directed at suspending certain administrative rules in an attempt to remove unnecessary impediments to the fight against the virus.

A major focus of Order #35 is assuring that Medicaid members retain their coverage eligibility during the COVID-19 pandemic. This provision was required under the Families First Coronavirus Response Act as a condition of eligibility to receive federal funding. Order #35 contains provisions expanding the availability of telehealth in the mental health and substance abuse areas. The order also suspends the requirement that certain mental health and substance abuse services be provided only in a face-to-face setting. This is just one of the many ways in which telehealth received a “shot in the arm” from the pandemic.

A few additional areas touched in Order #35 include:

Temporarily permitting nurses to bill Medicaid for overtime.
Suspension of certain prior authorization requirements, number of refill limitations, and prescription duration limitations.

Waiver of the requirement for parents to make certain payments for the “Birth to 3” program which provides early intervention services for children with developmental delays and disabilities.

Permits supervision of occupational therapists by electronic means in situations where close supervision is required.

Removes the requirement for health departments to conduct a community health assessment resulting in a community health improvement plan at least every five years. The “five-year” requirement is removed but the general obligation remains.

Revises DHS 34.02 (8) relating to emergency mental health services. Reference is directed toward prioritization of services in cases where the need for services outweighs resources.

Extends the time from three months to six months for newly hired mental health training staff who have less than six months experience to complete their 40 hours of documented orientation training.

Makes it easier for volunteers to meet their 40 hour training requirement. Instead of requiring all 40 hours of training be completed before commencing direct client work, trainees must now complete eight hours before starting. Ten additional hours must be completed by the end of the first and second months of volunteer work. The 40 hours of training must be completed within three months of starting volunteer work.

Deleted the minimum staffing requirements for outpatient mental health clinics under Wis. Admin. Code DHS 35. The general requirement the clinic have “a sufficient number of qualified staff members available to provide outpatient mental health services to consumers admitted to care” remains. The two specific options for meeting the minimum staffing responsibility have been removed. Previously, clinics could meet their staffing requirement by meeting any of the three specific staffing scenarios included in the regulation.

This is unlikely to be the last set of waivers issued. Providers who feel they might be restricted by state or federal regulatory requirements during the pandemic should communicate with the regulatory bodies. Federal and state regulators have been sensitive to the needs of providers that are necessary to enable them to address the unprecedented needs created by the COVID-19 virus.

I’ve recapped the highlights, the full Order #35 can be found here.

The new revisions focus on additional guidance related to the use of telehealth technologies, identification of appropriate triage process and screening examinations, drive through testing sites, and use of telehealth in connection with EMTALA.

For those of you who are not familiar, EMTALA is the federal law that requires Medicare-participating hospitals and critical access hospitals that have a dedicated emergency department to conduct a medical screening exam to all who come to the emergency department, to determine if the individual is in an emergency  medical condition. Emergency medical conditions are medical situations of such severity such that serious impairment of dysfunction can reasonably expected without immediate medical intervention.  If an emergency medical condition exists, the hospital is required to provide necessary stabilizing treatment within the hospital’s capability.  If the hospital does not have the necessary capabilities, there is an obligation to provide for a transfer when appropriate to treat the patient.

The obligations of EMTALA-obligated hospitals apply to patients who present with symptoms indicating that they may have been infected with the COVID-19 virus.  Emergency departments are prepared with appropriate COVID-19 screening criteria to facilitate the prompt identification of potentially infected patients so that they may be isolated and appropriate health officials can be contacted to ascertain next steps.  Most should have implemented the necessary policies and procedures already. 

Patients may experience the impact of COVID-19 on hospital EMTALA obligations.  For example, once initial stabilization occurs a patient could find themselves being transferred to another facility.  This could occur if the initial facility does not have adequate capacity.  A variety of other reason could present themselves in the midst of a pandemic that could necessitate a transfer from an emergency room to another facility once an emergency medical condition has been stabilized.

Hospitals and CAHs are expected to consider the guidance that has been released by the Center for Disease Control –  CDC and other state and local public health officials to guide their decisions about the extent of their capabilities to provide the type of isolation required at each step of the process including the provision of treatment necessary to stabilize an emergency medical condition through decisions on whether to continue to provide care once the medical emergency is ended.

The Wisconsin DHS has issued a Badger Bounce Back Plan. The plan identifies steps and criteria to guide the reopening of health care and other services in the state.

(i) symptoms; showing a downward trajectory in illnesses of a 14-day period;

(ii) cases, fewer and fewer positive tests over a  14-day period;

(iii) health care system; hospitals can treat patients without “crisis care” and there is robust testing;

(iv) testing; every Wisconsin resident with systems is able to get lab tests with results reported to public health within 48 hours of collection;

(v) contact tracing; every individual who tests positive is interviewed within 24 hours and their contacts are interviewed within 48 hours; and

(vi) protective equipment; all health care and public safety entities must have adequate protective equipment. 

1. To ensure that local hospitals and health systems have the capacity to handle COVID-19 patients through temporary expansion sites (also known as the CMS Hospital Without Walls initiative);
2. To expand at-home and community-based testing to minimize transmission of COVID-19;
3. To expand the healthcare workforce by removing barriers for physicians, nurses, and other clinicians to be readily hired from the local community or other states;
4. To increase access to telehealth for Medicare patients so they can get care from their physicians and other clinicians while staying safely at home; and
5. put patients over paperwork by giving providers, healthcare facilities, Medicare Advantage and Part D plans, and states temporary relief from many reporting and audit requirements so they can focus on patient care.

You can download a PDF file of “Real Voices. Real Stories” at the following link: Real Voices PDF Download

Some of the stories in the “Real Voices” section include coverage of a Joint Commission Life Safety Coach Surveyor  and an emergency department nurse at one of the largest hospitals in Chicago, among others.

The Joint Commission website includes a variety of other resources.   The Joint Commission does not have the largest list of resources.  Instead, the Joint Commission’s goal is to attempt to cut through the deluge of information on the COVID-19 virus and provide “only the information that best meets the needs of health care workers and leaders.”

By Fisher, JD, CHC, CCEP

Unnecessary Inpatient Admissions – Hospital Fraud Settlement.

An $18 million settlement was agreed by a hospital chain after allegations that claims were submitted to Medicare for patients who were admitted to an inpatient facility when they allegedly could have been treated on a less costly outpatient basis.  The government alleged that the hospital system billed Medicare for short-stay, inpatient procedures that should have been billed on a less costly outpatient basis.  The government also accused the hospital system of inflating reports to Medicare regarding the number of hours of outpatient observation care that was provided.

This is a fairly typical case where the allegation involved billing for services that were of a higher level than required by the patient.  In effect, the excess services are deemed to be medically unnecessary.  In this case, the services involved inpatient admissions that the government alleged could have been taken care of in a less costly outpatient setting.

A former employee was the whistleblower in the case and walks away with over $3.25 million from the settlement.

Read more here: Health Law Blog

The Joint Commission, one of the nation’s top accreditation organizations for health care providers, has published a variety of useful resources for health care organizations.  The resources provide some excellent coverage and are useful for all providers who are facing the Coronavirus pandemic.  The Joint Commission says that its goal in creating the resource page is to support health care professionals and organizations on the front lines of the COVID-19 pandemic.  Perhaps the biggest highlight of general application is the Joint Commissions “Real Voices. Real Stories.”  The Real Voices includes stories from a variety of front-line health care workers. 

You can download a PDF file of “Real Voices. Real Stories” at the following link: Real Voices PDF Download

Some of the stories in the “Real Voices” section include coverage of a Joint Commission Life Safety Coach Surveyor  and an emergency department nurse at one of the largest hospitals in Chicago, among others.

The Joint Commission website includes a variety of other resources.   The Joint Commission does not have the largest list of resources.  Instead, the Joint Commission’s goal is to attempt to cut through the deluge of information on the COVID-19 virus and provide “only the information that best meets the needs of health care workers and leaders.”

Telehealth Credentialing – Excerpts from the State Operations Manual A-0342

§482.22(a)(3) When telemedicine services are furnished to the hospital’s patients through an agreement with a distant-site hospital, the governing body of the hospital whose patients are receiving the telemedicine services may choose, in lieu of the requirements in paragraphs (a)(1) and (a)(2) of this section, to have its medical staff rely upon the credentialing and privileging decisions made by the distant-site hospital when making recommendations on privileges for the individual distant-site
physicians and practitioners providing such services, if the hospital’s governing body ensures, through its written agreement with the distant-site hospital, that all of the following provisions are met:
(i) The distant-site hospital providing the telemedicine services is a
Medicare-participating hospital.
(ii) The individual distant-site physician or practitioner is privileged at the distant site hospital providing the telemedicine services, which provides a current list of the distant-site physician’s or practitioner’s privileges at the distant-site hospital.
(iii) The individual distant-site physician or practitioner holds a license issued or recognized by the State in which the hospital whose patients are receiving the telemedicine services is located.
(iv) With respect to a distant-site physician or practitioner, who holds current privileges at the hospital whose patients are receiving the telemedicine services, the hospital has evidence of an internal review of the distant-site physician’s or practitioner’s performance of these privileges and sends the distant site hospital such performance information for use in the periodic appraisal of the distant-site physician or practitioner. At a minimum, this information must include all adverse events that result from the telemedicine services provided by the distant site physician or practitioner to the hospital’s patients and all complaints the hospital has received about the distant-site physician or practitioner.

Interpretive guidelines §482.22(a)(3)
The hospital’s governing body has the option, when considering granting privileges to telemedicine physicians and practitioners, to have the hospital’s medical staff rely upon the credentialing and privileging decisions of the distant-site hospital for these physicians and practitioners. This process would be in lieu of the traditional process required under
§482.22(a)(1) and §482.22(a)(2), whereby the hospital’s medical staff conducts its own review of each telemedicine physician’s or practitioner’s credentials and makes a recommendation based on that individualized review.
In order to exercise this alternative credentialing and privileging option, the hospital’s governing body must ensure through its written agreement with the distant-site hospital that all of the following requirements are met:

• The distant-site hospital participates in the Medicare program. If the distant-site hospital’s participation in Medicare is terminated, either voluntarily or involuntarily, at any time during the agreement, then, as of he effective date of the termination, the hospital may no longer receive telemedicine services under the agreement;
• The distant-site hospital provides to the hospital a list of all its physicians and practitioners covered by the agreement, including their privileges at he distant site hospital. The list may not include any physician or practitioner who does not hold privileges at the distant-site hospital. The list must be current, so the agreement must address how the distant-site hospital will keep the list current;
• Each physician or practitioner who provides telemedicine services to the hospital’s patients under the agreement holds a license issued or recognized by the State where the hospital (not the distant-site hospital) is located. States may have varying requirements as to whether they will recognize an out-of-state license for purposes of practicing within their State, and they may also vary as to whether they establish different standards for telemedicine services. The licensure requirements governing in the State where the hospital whose patients are receiving the telemedicine services is located must be satisfied, whatever they may be; and
• The hospital has evidence that it reviews the telemedicine services provided to its patients and provides feedback based on this review to the distant-site hospital for the latter’s use in its periodic appraisal of each physician and practitioner providing telemedicine services under the agreement. At a minimum, the hospital must review and send information to the distant-site hospital on all adverse events that result from a physician or practitioner’s provision of telemedicine services under the agreement and on all complaints it has received about a telemedicine physician or practitioner covered by the agreement.

By John Fisher, JD, CHC, CCEP

Follow the links below to download from the CDC.

A coronavirus preparedness checklist for hospitals, including long-term acute care hospitals are available from the CDC.

Interim Infection Prevention and Control Recommendations for Patients with Confirmed Coronavirus Disease 2019 (COVID-19) or Persons Under Investigation for COVID-19 in Healthcare Settings:

Strategies to Prevent the Spread of COVID-19 in Long-Term Care Facilities (LTCF):

Read more here: Health Law Blog

By John Fisher, JD, CHC, CCEP

Expanding Physician Owned Hospitals – Stark Law Approval Process

The Stark Law prohibits physicians from owning interests or having financial relationships with entities that provide “designated health services,” including hospital services, unless an exception exists.  The Stark Law contained an exception that permitted investment in a “whole hospital” but that exception was seriously limited under the Affordable Care Act.  Physician-owned hospitals must now obtain CMS approval of any expansion projects.  CMS regulations define the process and requirements for obtaining CMS approval of expansion projects.

I posted an article on the Health Law Blog that summarizes some of the requirements for obtaining approval for expansion of a physician-owned hospital.

Read more here: Health Law Blog