CMS continues to issue revised guidance to health care providers to assist them with dealing with the COVID-19 crisis, including blanket waivers of CMS’s conditions of participation (“CoPs”). New guidance published from CMS’s Center for Clinical Standards and Quality/Quality, Safety and Oversight Group expands these waivers to licensed independent freestanding emergency departments by allowing them to enroll as a Medicare/Medicaid-certified hospital and bill for both inpatient and outpatient services.

Freestanding emergency departments (IFEDs) are state-licensed emergency departments that are unaffiliated with hospitals. Currently, Delaware, Rhode Island, Texas and Colorado have laws permitting licensed IFEDs to operate in their jurisdictions. The new guidance explains that IFEDs have three options to participate in Medicare/Medicaid:

1. temporarily enrolling in Medicare as a certified hospital and receiving reimbursement for inpatient and outpatient hospital services;
2. becoming affiliated with a Medicare/Medicaid-certified hospital without submission of an enrollment application; or
3. participating in Medicaid under the clinic benefit as permitted under state law.

The first option is a key departure from CMS’s CoP by both expediting the enrollment/certification process and permitting the IFED to enroll as a temporary hospital. The guidance document provides a step-by-step process for IFEDs to obtain a temporary hospital CMS certification number, or CCN. This process requires the IFED to complete, among other things, the following:

• contact and submit its intent to the applicable Medicare Administrative Contractor (MAC); and
• Submit a signed attestation statement stating that the facility will comply with all relevant (and not waived) CoPs, including nursing services, pharmaceutical services, infection control/antibiotic stewardship programs and respiratory services.

The guidance document directs the MACs to approve these applications without an onsite survey, although the applicable CMS Regional Office may order a survey by the jurisdiction’s State Survey Agency for infection control purposes or to ensure the availability of personal protective equipment, or PPE. IFEDs approved as Medicare-certified hospitals may bill for hospital services until the Secretary of the Department of Health and Human Services determines there is no longer a COVID-19 public health emergency. Thereafter, IFEDs may officially enroll in Medicare by submitting a Form 855A and undergoing the regular CMS hospital enrollment processes.

This process will allow IFEDs to provide surge capacity in jurisdictions with limited hospital resources and permit those IFEDs to be reimbursed as a Medicare hospital—although one significant downside is that the IFED would be subject to the same enforcement criteria as a regularly certified acute care hospital, including patient complaint-driven surveys.

This alert was written by Christopher Dean and Christopher Tully, lawyers in the Health Care practice group at Miles & Stockbridge.

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