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New York Lifts Immunity, CMS Updates and Proposed Rules

April 28, 2021

For more information about this blog post, please contact Khaled J. KleleRyan M. Magee, or Labinot Alexander Berlajolli.

Governor Cuomo Signs Law Lifting Liability Protections for Health Facilities

Governor Cuomo recently signed S5177 into law, repealing the Treatment Protection Act, which prevented healthcare facilities, like nursing homes and hospitals, as well as their administrators and executives, from being held accountable for harm in connection with their treatment of patients with COVID‑19.

CMS Announces Immediate Resumption of All Hospital Survey Activities

Centers for Medicare & Medicaid Services (“CMS”) announced the immediate resumption of all hospital survey activities, including those related to Medicare compliance and patient safety. This comes after the agency hit pause on the surveys while hospitals worked to mitigate the COVID‑19 crisis. CMS previously issued QSO-21-13-Hospitals, which established a 30‑day suspension period limiting hospital surveys to immediate jeopardy complaints, such as allegations that pose patient safety concerns and Medicare noncompliance with hospital conditions of participation. Now that COVID‑19 cases are on the decline, non‑immediate jeopardy hospital complaints that were received during the survey suspension period will be investigated within 45 days of the date of the announcement released on March 26, 2021. Additionally, open enforcement cases that are not considered immediate jeopardy will have between 60 and 90 days to show compliance with outstanding deficiencies.

CMS Adds 24 New Codes for Temporary Telehealth Coverage

CMS recently expanded its list of telehealth services covered during the COVID‑19 pandemic to include 24 new audiology and speech‑language pathology services. The new services include, among others, diagnosis and treatment of swallowing problems, therapy for improving cognitive function, and assessing speech-generating devices. The full list can be accessed here.

Proposed Payment Rules

CMS has issued four new proposed rules addressing updates and revisions to payment rules for inpatient psychiatric facilities, inpatient rehabilitation facilities, skilled nursing facilities, and hospices. Those rules are explained in detail below. Comments are due by June 7, 2021.

86 FR 19480 – This proposed rule updates the prospective payment rates, the outlier threshold, and the wage index for Medicare inpatient hospital services provided by Inpatient Psychiatric Facilities (“IPFs”), which include psychiatric hospitals. Specifically, the rule proposes raising payments to inpatient psychiatric facilities by 2.3 percent in 2022, amounting to a total increase of $90 million. This rule also would update and clarify the IPF teaching policy with respect to medical residents in the event the hospital closes and proposes a technical change to the 2016‑based IPF market basket price proxies.

86 FR 19086 – This proposed rule updates the prospective payment rates for inpatient rehabilitation facilities (“IRFs”) for 2022. Specifically, the rule proposes increasing payments to inpatient rehabilitation facilities by 2.2 percent in 2022, amounting to an overall payment increase by $160 million that same year. The rule also includes the classification and weighting factors for the IRF prospective payment system’s case‑mix groups and a description of the methodologies and data used in computing the prospective payment rates for 2022. Finally, the rule updates an existing measure used for the IRF Quality Reporting program – a pay‑for‑reporting program.

86 FR 19954 – This proposed rule updates the prospective payment rates for skilled nursing facilities (“SNFs”) for 2022 by proposing to increase payments to SNFs by 1.3 percent in 2022, amounting to a total increase of approximately $444 million in Medicare Part A payments. Additionally, the rule seeks public comment on a proposed methodology for recalibrating the Patient Driven Payment Model amidst the current public health crisis.

86 FR 19700 – This proposed rule updates the hospice wage index, payment rates, and aggregate cap amount for 2022.  Specifically, the proposed rule raises hospice payments by 2.3 percent in 2022, amounting to a total increase of approximately $530 million. Additionally, the proposed rule introduces a new measure for the Hospice Quality Reporting Program, providing ten indicators of care quality derived from claims data. Finally, the proposed rule issues several waivers related to the public health crisis.

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