In our blog article from March 31, 2020 it says: “COVID-19 Response Strategies: Expanding Practice To Improve Patient Access To Healthcare“And in our blog article from May 8, 2020”COVID-19: Medical liability for extended scope of servicesThe COVID-19 pandemic has exposed health restrictions that have hampered access to health care, often for rural, low-income, and minority communities. To improve access to health care, many states and the federal government have worked to (i) expand the scope for different types of non-physicians (“NPPs”) to provide a wider range of health services; (ii) Eliminate or relax the requirements for medical supervision so that NPPs can practice independently without relying on doctors who have limited health resources of their own; and (iii) isolate NPPs from liability for the provision of health services that are outside their traditional scope of activity.
While some health industry stakeholders and analysts have praised these efforts as a way to improve much-needed access to health services during the current public health emergency, others expressed serious concern that such actions could jeopardize the quality of health care for patients. As described below, the effects of such a contradiction can last be seen in the final rule of August 10, 2020: “Medicare program; Prospective payment system for inpatient rehabilitation facilities for the federal financial year 2021“(The” last rule “).
In one joint letter dated June 11, 2020 and to Center for Medicare and Medicaid Services (“CMS”) administrator, Seema Verma, criticized the American Medical Association (“AMA”), along with other medical professional associations and interest groups (collectively, “Associations”) Jan. April strongly proposed rule for 2020, which preceded the final rule above (the “Proposed rule”). As elaborated, the proposed rule would have changed the requirements for Medicare coverage for inpatient rehabilitation facilities (IRF) to allow NPPs to provide certain professional and administrative rehabilitation services that rehabilitation doctors currently have to provide.
In the commentary above, the associations expressed concern that the scope of practice and related provisions on proposed rules “may reduce the standard and quality of care for IRF patients” and that the services run by NPPs are not “on the level of services that IRFs are developed and paid for to provide would rise. The associations also argued that the proposal for the scope of the proposed rule “sets a dangerous precedent for the elimination of the requirements for medical supervision in all health facilities”.
In response to this type of concern, CMS has included the Last rule, took a “more measured approach” to expanding the role of NPPs in IRFs. Currently, Medicare requires doctors to visit three days a week to ensure the effectiveness of an IRF’s inpatient care plan. Other health professionals, including NPPs, may make additional visits, but these visits do not count towards the three Medicare coverage requirements per week. While the proposed rule broadly expands the scope of the NPP and the limited medical supervision requirements in an IRF environment, the final rule is more prudent in its amendments to the Medicare IRF coverage terms in relation to NPP services. According to the final rule, NPPs are allowed to carry out one of the three required visits to a rehabilitation doctor during each week of the IRF stay, provided this is permitted under state law, with the exception of the first week.
The approval of the scope of the changes to the IRF scope strongly demonstrates that CMS is able to change its approach to these issues in response to input from the industry, which will be of particular concern beyond the public health emergency, when so many temporary areas of application of the NPP forego practice in other areas Health care is running out. While, in turn, many are working to make some of these relaxations permanent, the associations are pushing back. In one Letter from July 22nd, 2020 For CMS administrator Verma, the associations urged CMS to “end the sunset [temporary] Disclaimers covering practice scope and approval when the public health emergency (PHE) is resolved.[p]Physician-led team-based care has been shown to be successful in improving the quality of patient care, reducing costs, and enabling all healthcare professionals to spend more time with their patients. “
CMS has not yet responded publicly to calls for expiry provisions to the temporary extent of the currently applicable exemptions. Since the federal emergency statement on public health currently expires on October 23, 2020 (NB, past expiration dates were extended at the last minute), it may take some time for the fate of the scope and license waivers to be made clear.
This article is not a clear statement of law, but represents our best interpretation of the current state of affairs. This article does not address the potential impact of the numerous other local, state, and federal ordinances issued in response to the COVID-19 pandemic that are not referred to in this article.
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