CMS Warns Operators: Days Billed Under Benefit Period Waivers Must Have Direct COVID Connection

The federal government on Friday issued an explanatory update to the temporary suspension of rules around Medicare beneficiaries’ skilled nursing benefit periods, warning that the waiver only applies in situations with a direct connection to the COVID-19 health emergency.

Early in the coronavirus pandemic, the Centers for Medicare & Medicaid Services (CMS) waived the mandatory three-day hospital stay requirement for subsequent skilled nursing coverage under Medicare.

The action also authorized the extension or early restart of the 100-day Medicare benefit period in certain situations, with both provisions in effect for the duration of the federal government’s COVID-19 public health emergency (PHE).


Under normal circumstances, after a resident exhausts the 100 days of Medicare SNF coverage, he or she cannot restart a new benefit period until spending 60 days out of the hospital or SNF setting — also commonly known as “breaking the spell of illness.”

The move was designed to free up hospital beds in anticipation of spikes in demand, while allowing the continuation of care for skilled nursing residents who may require additional services as a result of the COVID-19 crisis.

In general, the leeway was seen as a positive for both residents and the industry, allowing operators to continue receiving Medicare reimbursements — typically the highest of any payer type — as coronavirus-related expenses skyrocketed.


But the Friday update emphasized that operators must draw a straight-line connection between any days billed under the benefit period waiver and the coronavirus crisis.

The benefit period exemption does not apply “to those beneficiaries who are receiving ongoing skilled care in the SNF that is unrelated to the emergency — a scenario that would have the effect of prolonging the current benefit period and precluding a benefit period renewal even under normal circumstances.”

CMS gave the example of a patient who required a feeding tube for a condition unrelated to COVID-19.

“The beneficiary cannot renew his or her SNF benefits under the section 1812(f) waiver as it is this continued skilled care in the SNF rather than the emergency that is preventing the beneficiary from beginning the 60 day ‘wellness period,'” the update reads.

When filing claims, CMS advised operators to compare the actual care provided with the course of action they would have taken if the COVID-19 pandemic had never occurred.

“Unless the two are exactly the same, the provider would determine that the treatment has been affected by — and, therefore, is related to — the emergency,” CMS notes.

As an acceptable example, CMS offered the case of a SNF resident who received daily skilled therapy before contracting COVID-19, requiring the use of a respirator and a feeding tube.

“We would also note that beneficiaries who do not themselves have a COVID-19 diagnosis may nevertheless be affected by the PHE,” CMS wrote. “For example, when disruptions from the PHE cause delays in obtaining treatment for another condition.”

The formal clarification mirrors an early warning from Zimmet Healthcare Services Group president Marc Zimmet, who in late March argued that the waivers didn’t represent a “license to skill.”

“This waives that 60-day requirement for patients that are already on the road to custodial care, or on the road to breaking the spell of illness,” Zimmet said at the time. “That is the big disconnect. We’ve had operators calling up and saying: We’re going through our house, we’re putting every patient that’s skilled on program for another 100 days. [The waiver] is not a license to skill.”

CMS advised operators to work with their Medicare Administrative Contractors (MACs) and provide as much documentation as possible to clearly demonstrate that their claims are valid under the terms of the waivers.

The three-day stay waiver requires less scrutiny, CMS noted.

“All beneficiaries qualify, regardless of whether they have SNF benefit days remaining,” CMS wrote. “The beneficiary’s status of being ‘affected by the emergency’ exists nationwide under the current PHE. (You do not need to verify individual cases.)”

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