Freestanding Emergency Departments Can Participate in Medicare and Medicaid during the COVID-19 Emergency

April 22, 2020

On April 21, 2020, the Centers for Medicare & Medicaid Services (“CMS”) issued a memorandum, allowing licensed independent freestanding emergency departments (“EDs”) to temporarily participate in Medicare and Medicaid. Texas is one of only four states that license EDs without hospital affiliation. Historically, EDs have been unable to bill Medicare and Medicaid for services because current law does not recognize EDs as certified Medicare providers. However, during the COVID-19 public health emergency, EDs may participate in Medicare and Medicaid by joining the programs in one of three ways, each of which must be implemented in a manner consistent with the State’s emergency and pandemic plan for patient surges during the COVID-19 public health emergency:

Affiliating with a Medicare/Medicaid-certified hospital under a temporary expansion 1135 emergency waiver. 

The hospital and ED should work with the State to obtain approval for the ED to operate as the hospital’s outpatient department (i.e., become hospital-affiliated), if appropriate. There is no requirement for the ED to submit a separate enrollment application to CMS.

Enrolling as a Medicaid clinic, if permitted by the State.

The ED should work with the State Medicaid Agency to enroll as a Medicaid-certified clinic. If the State elects to cover the clinic benefit, CMS notes that there is no automatic assumption that the payment rate would be the same as a Medicaid-certified hospital.

Enrolling temporarily as a Medicare/Medicaid-certified hospital to provide hospital services.

EDs may temporarily enroll in Medicare as hospitals to provide inpatient and outpatient services. An ED choosing to enroll as a hospital during the COVID-19 public health emergency must meet the Medicare hospital Conditions of Participation, to the extent not waived. EDs will receive hospital payments from Medicare based on the care provided. An ED temporarily enrolled as a hospital must provide a Medicare Outpatient Observation Notice (CMS-10611) to all Medicare beneficiaries informing them that they are outpatients receiving observation services and are not inpatients of the hospital.

To enroll as a hospital, the ED must submit its intent to the Medicare Administrative Contractor (the “MAC”) by calling the MAC’s provider enrollment hotline and following the instructions noted in the 2019-Novel Coronavirus (COVID-19) Medicare Provider Enrollment Relief Frequently Asked Questions document . Texas’ MAC, Novitas’ provider enrollment help line telephone number can be found here . The ED will be asked to submit to the MAC a signed attestation statement, available here, stating that the ED meets all federal participation requirements for hospitals, to the extent they are not waived. The MAC will review and forward the ED’s signed attestation statement to the CMS Regional Location who will review and approve, if appropriate, the attestation statement. The CMS Regional Location will then create a temporary new facility profile and certification kit in the Automated Survey Process Environment, assign a trackable hospital CMS Certification Number (“CNN”) and send a tie-in notice as a hospital to the MAC. The effective date is the date when the attestation is accepted by the MAC.

Upon the end of the COVID-19 public health emergency, the CMS Regional Location will terminate the trackable hospital CNN and send a tie-out notice to the MAC. The MAC will deactivate the hospital billing privileges to be effective on the date there is no longer a COVID-19 public health emergency.

If the ED wishes to become a certified hospital after the COVID-19 public health emergency has ended and its temporary hospital billing privileges have been deactivated by the MAC, it may submit form 855A to begin the process of enrollment and initial certification as a certified hospital under the regular processes.

CMS states that, prior to seeking participation in Medicare or Medicaid, EDs should contact their State health department and State Survey Agency to determine the role of these facilities during the COVID-19 public health emergency. To date, the Texas Health and Human Services Commission (“HHSC”) has not issued guidance in response to CMS’ memorandum. We will monitor HHSC guidance as this matter develops.

Joshua M. Weaver
Phone: (214) 705-3516
Board Certified – Health Law
Texas Board of Legal Specialization
Steve Litke
Phone: (972) 427-7685
Ashley E. Johnston
Phone: (214) 763-8296
Board Certified – Health Law
Texas Board of Legal Specialization
Chris Reed
Phone: (214) 705-3935
Joseph E. Nelson
Phone: (214) 705-3907
Board Certified – Health Law
Texas Board of Legal Specialization
Rachael Nelson Gearing
Phone: (469) 680-9609
Kevin Mitchell
Phone: (469) 680-9049
Stephanie Toth
Phone: (469) 480-9729
Shannon Cahalan
Phone: (214) 938-9898
Paul Wehrmann
Phone: (214) 957-0919
Vicki Wanjura
Phone: (214) 587-6026
The material contained in this email alert is for informational purposes only. It is not intended to be legal advice nor is it intended to create and receipt does not establish an attorney-client relationship. Legal advice of any nature should be sought from legal counsel. The COVID-19 disaster, and the federal, state and local governmental response, is a fluid and rapidly involving situation, meaning the material contained herein may be subject to change.