CMS Pub. 100-02, ch. 1, § 110.2.6

Emergency for the COVID-19 Pandemic

(Rev. 10892; Issued: 08-06-21; Effective: 11-08-21; Implementation: 11-08-21)

Inpatient Rehabilitation Facility (IRF) Flexibilities Issued on March 30, 2020

On March 30, 2020, CMS issued the interim final rule “Medicare and Medicaid

Programs; Policy and Regulatory Revisions in Response to the COVID-19 Public Health

Emergency” (CMS-1744-IFC). This interim final rule removed the IRF post-admission

physician evaluation requirement in 42 CFR § 412.622(a)(4)(ii) for all Medicare Part A

fee-for-service beneficiaries during the public health emergency (PHE) specified in 42

CFR 400.200. Thus, contractors shall not require documentation of post-admission

physician evaluations in the IRF medical records for Medicare Part A fee-for-service

beneficiaries during the PHE. As discussed in Section 110.1.2, CMS subsequently

removed the post-admission physician evaluation documentation requirement entirely

beginning with FY 2021 (e.g., for all IRF discharges beginning on or after October 1,

2020).

This interim final rule also revises the physician supervision requirement in 42 CFR §

412.622(a)(3)(iv) and § 412.29(e) to permit physician visits in the IRF required under

these provisions to be conducted via telehealth to safeguard the health and safety of

Medicare beneficiaries and the rehabilitation physicians treating them during the PHE.

Contractors shall allow rehabilitation physicians to use telehealth services as defined in

section 1834(m)(4)(F) of the Act to conduct the required 3 physician visits per week

during the PHE for the COVID-19 pandemic.

IRF Flexibilities Issued on April 30, 2020

On April 30, 2020, CMS issued the interim final rule “Medicare and Medicaid Programs,

Basic Health Program, and Exchanges; Additional Policy and Regulatory Revisions in

Response to the COVID-19 Public Health Emergency and Delay of Certain Reporting

Requirements for the Skilled Nursing Facility Quality Reporting Program” (CMS-5531-

IFC). This interim final rule, codified at 42 CFR § 412.622(a)(3)(ii), waives the IRF “3-hour rule” in accordance with section 3711(a) of the CARES Act.

As a result of the “3-hour rule” waiver, contractors shall not review Medicare Part A

fee-for-service beneficiaries admitted to IRFs during the PHE specified in section

1135(g)(1)(B) of the Social Security Act for compliance with 42 CFR § 412.622(a)(3)(ii).

That is, Medicare Part A fee-for-service beneficiaries admitted to IRFs during the PHE

do not need to receive at least 15 hours of intensive rehabilitation therapy per week. This

waiver applies to all patients admitted to IRFs during the PHE.

This interim final rule also modifies the IRF coverage and classification requirements in

42 CFR § 412.29(d), (e), (h), and (i) and § 412.622(a)(3)(i), (iii) – (iv), (4), and (5) for

the public health emergency (PHE) during the COVID-19 pandemic, when all of the

following criteria are satisfied at the time of admission to the IRF:

• Patient is admitted to a freestanding IRF solely to alleviate acute care hospital

bed capacity issues, and

• IRF is located in a state (or region, as applicable) that is experiencing a surge

during the Public Health Emergency, as defined in 42 CFR § 400.200.

The regulation at 42 CFR § 412.622(c), as amended by the April 30, 2020 interim final

rule, specifies that a “state (or region, as applicable) that is experiencing a surge” refers

to a state region that is in Phase 1 of the presidential “Guidelines for Opening Up

America Again” ((https://www.whitehouse.gov/openingamerica/), specifically, a state (or

region, as applicable) that satisfies all of the following, as determined by applicable

state and local officials:

1. All vulnerable individuals continue to shelter in place.

2. Individuals continue social distancing.

3. Individuals avoid socializing in groups of more than 10.

4. Non-essential travel is minimized.

5. Visits to senior living facilities and hospitals are prohibited.

6. Schools and organized youth activities remain closed.

The evolution of the Phase 1 criteria listed above are most likely to be clearly articulated

by a state’s governor. Further, contractors will need to be aware that there may not be a

clearly posted phase for a state or community that aligns with the presidential

“Guidelines for Opening Up America Again” cited at 42 CFR § 412.622(c).

Some of the criteria are likely to be in place across a number of phases, particularly the

criteria in (i), (ii), and (iii). An example of a more complicated criteria to apply is (iv).

Non-essential travel can still be minimized, even after stay at home orders are lifted in an

area to allow for additional access to health care services or to allow for additional

commerce (such as manufacturing) to improve the overall economic circumstances of a

region or state. There may also be circumstances where beach regions, which can

provide more ability for social distancing, of a state are reopening whereas more

concentrated population centers remain with higher restrictions. Thus, contractors

should apply the standard regionally, as applicable. Furthermore, schools and

organized youth activities may be closed simply because of the time of year (for instance,

during the summer months).

Additionally, contractors should recognize that, in some cases, states or regions can

move to Phase 2 or Phase 3 of the plan and then return to Phase 1 if they experience

another surge in cases.

In the April 30, 2020 interim final rule, CMS instructed freestanding IRFs to add the

letters “DS” to the end of their unique hospital patient identification numbers (the

numbers that identify the patients’ medical records in the IRF) to identify patients who

are being treated in a freestanding IRF hospital solely to alleviate inpatient bed capacity

in a state that is experiencing a surge during the PHE for the COVID-19 pandemic. The

modifier will be used to identify those patients for whom the requirements in 42 CFR §

412.622(a)(3)(i), (iii), (iv), (4) and (5) do not apply. Thus, contractors shall not review

freestanding IRF patient medical records that have “DS” at the end of their unique

hospital patient identifier numbers for meeting any of the following requirements:

• Needing at least 2 forms of therapy (one of which must be physical or

occupational therapy,

• Being sufficiently stable to tolerate the IRF intensive rehabilitation therapy

program,

• Requiring close medical supervision by a rehabilitation physician, as

demonstrated by at least 3 rehabilitation physician visits per week,

• Having a preadmission screening,

• Having an individualized overall plan of care, or

• Having an interdisciplinary approach to care, including weekly interdisciplinary

team meetings.

In addition, as noted at 85 FR 27573 contractors shall not include freestanding IRF

patient medical records that have “DS” at the end of their unique hospital patient

identifier numbers when reviewing whether the IRF meets the following coverage

requirements:

• Has in effect a preadmission screening procedure,

• Has in effect a procedure for ensuring that patients receive close medical

supervision by a physician,

• Has a plan of treatment for each patient, or

• Uses an interdisciplinary approach to care.

Contractors shall allow freestanding IRFs to be paid at the usual IRF prospective

payment amounts for these patients.