What do the temporary regulatory waivers and new rules the Centers for Medicare & Medicaid Services (CMS) announced mean for national COVID-19 response efforts and ASCs?

The CMS announcement gives healthcare providers increased options for providing care to patients and contributing to COVID-19 response efforts in their communities. Four provisions affect ASCs in key ways by:

• creating a "Hospitals Without Walls" program that allows surgery centers to contract with their local healthcare systems to provide hospital services or enroll and bill as hospitals during the emergency declaration as long as those activities are not inconsistent with their state’s Emergency Preparedness or Pandemic Plan;
• creating a blanket Stark Law waiver to facilitate patient access to healthcare workers with the appropriate training and expertise needed to provide their care;
• issuing an ambulance waiver that allows ambulances to transport patients to a wider range of locations, including ASCs, when other transportation is not medically appropriate; and
• expanding scope of practice, for example, CRNAs are not required to practice under the supervision of a physician and are free to function to the fullest extent allowed by their states.

ASCs need to check their state laws before providing new services to patients or pursuing new relationships with other healthcare providers since state requirements can override federal authority in these areas.

How do the CMS “Hospitals Without Walls” declarations affect ASCs?

On March 30, 2020, CMS announced a number of temporary waivers and new rules to allow for the provision of hospital services at alternative sites of care, including ASCs, in order to alleviate some of the pressures placed on hospitals by the COVID-19 pandemic.

ASCs wishing to participate in “Hospitals Without Walls” can contract with their local hospital to receive and treat patients or apply to CMS for a temporary hospital status of their own. With either option, the expectation is that ASCs would function like a hospital outpatient department (HOPD) and focus on providing the surgeries and procedures they are currently qualified to perform.

According to CMS, ASCs that wish to enroll to receive temporary billing privileges as a hospital should call the COVID-19 Provider Enrollment Hotline to reach the contractor that serves their jurisdiction and then complete and sign an attestation form specific to the COVID-19 Public Health Emergency (PHE). See page 7 of CMS' COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers document. Additional guidance that can assist ASCs temporarily enrolling with Medicare as a hospital is available in at CMS' April 3 memo to state survey agency directors.

ASCs wishing to essentially subcontract with hospitals need to contact their local hospital administrator directly to formalize an agreement for providing patient care.

For additional details, see CMS's Hospitals: CMS Flexibilities to Fight COVID-19 document.

Do the new Medicare regulations automatically apply to private payers and the Medicare Advantage program?

During the March announcement, CMS Administrator Seema Verma commended America’s Health Insurance Plans (AHIP) for committing to match CMS’ waivers for Medicare beneficiaries in areas where in-patient capacity is under strain.

What is the Accelerated and Advance Payment Program and how can it benefit ASCs?

On March 30, 2020, CMS announced an expansion of its Accelerated and Advanced Payment Program that provides “emergency funding and addresses cash flow issues based on historical payments when there is disruption in claims submission and/or claims processing.”

Under the terms of the expanded program, providers—including ASCs—can apply for up to three months of advance payments during the public health emergency and, following the advancement period, will have up to seven months to repay the advances.

To qualify for accelerated or advance payments, the provider or supplier must

• have billed Medicare for claims within 180 days immediately prior to the date of signature on the provider’s/supplier’s request form;
• not be in bankruptcy;
• not be under active medical review or program integrity investigation; and
• not have any outstanding delinquent Medicare overpayments.

Medicare will start accepting and processing the Accelerated/Advance Payment Requests immediately. CMS anticipates that the payments will be issued within seven days of the provider’s request.

CMS' fact sheet on the accelerated/advance payment process provides additional information and how to submit a request.

What other forms of economic relief are available to ASCs?

On March 27, 2020, President Donald Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act, or CARES Act.

The new law provides $2.2 trillion in various forms of economic relief, including direct assistance to medical providers and two new US Small Business Administration (SBA) loan programs to assist small businesses, including ASCs.

Direct Cash Payments to Medical Providers

The direct relief provided by the new law will be administered through a $100 billion public health and social services emergency fund that is intended to reimburse medical providers for expenses or lost revenue attributable to the COVID-19 pandemic.

There are very few details about the program available at this time, but CMS is expected to make additional announcements regarding the eligibility and application process in the coming days. ASCA will provide updates as more information becomes available.

Paycheck Protection Loan Program

The first of two new SBA loan programs is a $349 billion “paycheck protection program” that will provide loans to eligible businesses to cover the costs associated with up to eight weeks of payroll and employment benefits.

Qualified businesses can apply for loans up to $10 million at a 4% interest rate. However, the loan amounts can be forgiven if the loan proceeds are used to cover payroll costs, or mortgage interest, rent and utility costs over the eight-week period after the loan is made and employee and compensation levels are maintained. Payroll costs are capped at $100,000 on an annualized basis for each employee.

Loan payments will be deferred for eight months.

Starting April 10, 2020, independent contractors and self-employed individuals can apply for and receive loans to cover their payroll and other certain expenses through existing SBA lenders.

This program is open to all small businesses, including ASCs, with 500 or fewer employees.

ASCA is seeking clarification from CMS regarding the eligibility of ASCs that are currently participating in joint ventures with hospitals and other health providers or have an affiliation with a management company that might otherwise disqualify them from participating.

For more information, see the Paycheck Protection Program (PPP) Information.

Economic Injury Disaster Loan (EIDL) Grant

There are two parts to the Economic Injury Disaster Loan program.

The first part is a small business loan program with the following terms:

• loans up to $2 million are available
• disaster loans come with low fixed interest rates of 3.75 percent or 2.75 percent for nonprofits
• repayment term is up to 30 years, reducing the monthly cash flow burden
• no prepayment penalties
• payment may be deferred for six months, although interest will accrue
• money is available in all 50 states
• time-in-business requirement has been waived, provided your business was operational on January 31, 2020.

The second part of the program is a grant associated with the EIDL that makes it possible for any business that meets the minimum requirements to apply and receive $10,000 almost immediately (the SBA is shooting for three days) and use the funds without the requirement to repay the loan.

These working capital loans (including the grant) may be used only to pay fixed debts, payroll, accounts payable and other bills that could have been paid had the disaster not occurred. The loans are not intended to replace lost sales or profits or to pay for expansion. Funds cannot be used to pay down long-term debt or to consolidate debt.

To apply for an EIDL loan grant, complete SBA's COVID-19 Economic Injury Disaster Loan Application.

How long will the new rules and waivers remain in effect?

The new rules and waivers are set to continue as long as President Trump’s national emergency declaration remains in place.

Where can ASCs find reliable resources to help them navigate the COVID-19 crisis?

ASCA has created a COVID-19 Resource Center that is publicly available on its website to help ASCs and others get answers to their questions about the spread of COVID-19 and response efforts in the US. Content is updated regularly and new announcements are posted to the site as they become available.