In response to the COVID-19 emergency, CMS issued on April 30, 2020 a second Interim Final Rule with Comment Period that gives providers additional regulatory flexibilities during the current Public Health Emergency (PHE). Among these regulatory changes are provisions addressing hospital available bed counts and resident FTE time-counting rules to ensure teaching hospitals receive adequate IME and DGME payments during the crisis. CMS also clarified teaching physician supervision provisions and expanded the list of services covered by the primary care exception.

Available Beds. IME payments are largely tied to a hospital's intern and resident to bed ratio (IRB ratio). An increase in the number of available beds at a hospital, with no changes to the number of residents, will decrease a hospital's IME payments. In response to stakeholder requests, CMS is changing its policies so that teaching hospitals that temporarily increase the number of available beds to respond to the influx of COVID-19 patients will not experience reductions in IME payment amounts. Specifically, for the duration of the COVID-19 PHE, the hospital's available bed count "is considered to be the same as it was on the day before the COVID-19 PHE was declared." CMS is revising § 412.105(d)(1) to exclude "beds temporarily added during the time frame that the Public Health Emergency…is in effect."

Resident FTE Time-Counting. The number of FTE residents working at a teaching hospital affects both IME and DGME payments. The greater the number of FTE residents a hospital counts, the higher DGME and IME payments a hospital will receive, up to a teaching hospital's caps. In response to COVID-19, some teaching hospitals have sent their residents to other hospitals to assist in treating patients. Current regulations, however, prohibit a hospital that sends residents to another hospital from claiming for Medicare GME payment purposes the time spent by residents training at the other hospital. During the PHE, CMS is revising 42 C.F.R. §§ 412.105(f)(1)(iii)(A) and 413.78 to allow a teaching hospital to claim on its Medicare hospital cost report the FTE time residents spend training at other hospitals, including any alternative care sites established by hospitals, if the following conditions are met:

1. The resident is sent to another hospital in response to the COVID-19 pandemic, meaning that either the sending or receiving hospital are treating COIVD-19 patients;
2. "Time spent by the resident at the other hospital would be considered to be time spent in approved training if the activities performed by the resident at the other hospital are consistent with any guidance in effect during the COVID-19 PHE for the approved medical residency program at the sending hospital"; and
3. "Time that the resident spent training immediately prior to and/or subsequent to the…[PHE] was included in the sending hospital's FTE resident count."

Teaching Physician Supervision. In earlier COVID-related guidance, CMS offered flexibility with respect to teaching physician supervision rules. In the new IFC, CMS proposes several technical changes to those waivers, and clarifies that for the duration of the PHE "the teaching physician may not only direct the care furnished by residents, but also review the services provided with the resident, during or immediately after the visit, remotely through virtual means via audio/video real time communications technology." CMS also temporarily, for the duration of the PHE, expanded the list of services that may be provided through the primary care exception. CPT codes 99441, 99442, 99443, 99495, 99496, 99421, 99422, 99423, and 99452, and HCPCS codes G2012 and G2010 are now eligible for PFS payment to a teaching physician when furnished by a resident under the primary care exception.

For additional information on other COVID-related GME-related waivers and flexibility see CMS Relaxes Medicare GME Rules During COVID-19 Pandemic and CMS Relaxes Resident Moonlighting Rules During COVID-19 Emergency. Please do not hesitate to reach out to the GME @ Dentons team during this emergency for any assistance we can provide with respect to your residency programs.