Documentation to Ease Medical Billing Issues Due to COVID-19

COVID-19 Documentation

A healthcare lawyer advises providers to thoroughly document care delivery to prevent medical billing and payment issues likely to arise from the COVID-19 pandemic.

Clinical documentation is critical to serving patients with COVID-19, but also avoiding medical billing and payment issues in the months and years following the pandemic, according to healthcare lawyer Delphine O’Rourke.

“There’s a lot of confusion over what the blanket waivers cover versus what happens under specific waivers versus what governors are stating,” said Delphine O’Rourke, partner at Duane Morris and former associate general counsel for Ascension. “We find in emergencies, that for months and years afterward, you are dealing with payment and insurance issues.”

“This needs to be documented,” she stressed in an interview with RevCycleIntelligence.

The Trump administration declared a national emergency earlier this month, granting HHS the authority to waive certain Medicare, Medicaid, and CHIP policies and allow states to provide flexibilities for local providers. This move is key for providers attempting to manage a pandemic with a finite amount of resources, O’Rourke explained.

“National emergency is critical for providers,” she stated. “For service providers, the major impact is access to billions of dollars to try to address the economic impact of the coronavirus for hospitals and providers. The economic piece is huge because hospitals and other providers are already getting hit very hard.”

But the declaration is also an important part of managing patient implications for providers.

According to, 1135 waivers enable the HHS Secretary to “take certain actions in addition to her regular authorities,” such as temporarily waiving or modifying certain Medicare, Medicaid, and CHIP requirements to beneficiaries of these programs have access to sufficient healthcare items and services during national and public health emergencies. The waivers also ensure providers who render the services in good faith are reimbursed and exempted from sanctions during the crisis.

These waivers and extra flexibility will help providers get through the rush of patients already showing up at their doors. There are over already 46,500 confirmed cases of COVID-19 in the US, according to the latest data from Johns Hopkins University. And that number is expected to rise to up to 96 million patients, according to infectious disease experts.

“We know we’re having a surge of COVID-19 patients, and providers along the entire continuum of care are trying to prepare and figure out how they’re going to care for these patients within existing regulations,” O’Rourke stated. “These waivers provide alternatives to be able to manage that patient surge.”

For example, critical access hospitals have been struggling for weeks to prepare for a rapid influx of COVID-19 patients. On one hand, the hospitals want to increase the number of inpatient beds available to patients presenting with symptoms. On the other hand, the hospitals only qualify for critical access hospital reimbursement if the facility has 25 or fewer inpatient beds.

The limit is a major challenge for critical access hospitals attempting to combat the pandemic. The recent blanket waiver approved by HHS will relax that rule, allowing critical access hospitals to increase capacity and get paid for it, O’Rourke stated.

Other key blanket waivers approved by HHS due to the COVID-19 pandemic include:

  • 3-day rule for skilled nursing facilities, which requires a 3-day prior hospitalization for coverage of a skilled nursing facility (SNF) stay
  • Requirements pertaining to face-to-face encounters, physician’s orders, and new medical necessity documentation for durable medical equipment prosthetics, orthotics, and supplies (DMEPOS) lost, destroyed, irreparably damaged, or otherwise rendered unusable
  • 25-day average stay length requirement for long-term care hospitals
  • Rules regarding the use of step-down beds for acute care patients
  • Requirements that out-of-state providers be licensed in the state where they are providing services

These blanket waivers will apply to all providers automatically to enable effective and quick treatment of patients with COVID-19, O’Rourke explained. HHS is also approving additional flexibility at the state level.

But these aren’t the only waivers available to providers struggling to create the necessary capacity, she stated.

“There are individual waivers,” O’Rourke said. “If facilities want to seek relief under Section 1135 of the Social Security Act beyond blanket waivers, they need to apply specifically.”

During times of emergency, providers typically seek waivers of federal laws and Conditions of Participation (CoP), which say whether a provider can receive payment for Medicare and Medicaid claims. These laws and regulations are seemingly endless to ensure patient safety, but the requirements can become a major obstacle to delivering timely care in a time of emergency, O’Rourke stated.

For example, the Emergency Medical Treatment and Labor Act (EMTALA) prohibits the transfer of unstabilized patients. But hospitals may get to a point where they don’t have the capacity to stabilize all patients.

Rather than having these patients sit in the waiting room with potentially non-symptomatic patients, hospitals will want the ability to transfer these patients immediately to another facility that has greater capacity.

During emergencies, providers also frequently apply for 1135 waivers to relax reporting deadlines and fraud, waste, and abuse regulations like the Stark Law. These waivers prevent providers from potential financial penalties or sanctions stemming from care delivery rendered in good faith under extreme and uncontrollable circumstances.

However, provider-specific requests need to be justified and supportable, O’Rourke stressed. “There needs to be a reason why they need this relief. And that’s a process because we don’t have 1335 waivers that frequently.”

Providers will also need to apply for 1135 waivers as soon as possible, O’Rourke said.

“It is very important for providers to get in line,” she said. “HHS is going to receive a lot of waivers. Internal staffing hasn’t been increased. The sooner providers can get them in, the better they have of being viewed at the front end.”

“Why they’re billing this way is also going to be important,” O’Rourke concluded. “There’s going to be a backlog or vulnerability at the end that there was no ‘proof’ that that was why these actions were taken. There have been no waivers of documentation, so it’s critical, critical, critical.”

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