Can I admit this patient on the 3-day waiver?

I am regularly bombarded with questions on the 3-day waiver.  Like many things in the SNF industry, the answers change over time.  The only difference in this case is how fast the answer has changed and how much uncertainty has plagued (pun intended) this rule.

Let’s start our discussion with a look at the actual waiver:

3-Day Prior Hospitalization. Using the authority under Section 1812(f) of the Act, CMS is waiving the requirement for a 3-day prior hospitalization for coverage of a SNF stay, which provides temporary emergency coverage of SNF services without a qualifying hospital stay, for those people who experience dislocations, or are otherwise affected by COVID-19.

Note that this waiver does not change anything in regards to the skilled criteria for a SNF.  It only applies to the 3-day inpatient requirement for post-acute Medicare coverage. 

“Does my patient qualify for the 3-day waiver?”  Early in the Public Health Emergency (PHE) this was nearly always a very simple answer, “Yes!”

Now, these waiver questions require a lot more discussion.  The waiver remains in place and the requirements unchanged.  So why would the answer be any different?

The issue is the last line of the waiver: “for those people who experience dislocations, or are otherwise affected by COVID-19.”  For the first 9 months or so of the COVID-19 PHE, all hospitals were shutting down admissions, clearing out patients and reserving space for COVID patients.  All hospitals were following the same guidance, so the 3-day waiver essentially applied to everyone who would have otherwise had a 3-day stay.  Essentially everyone was affected by the COVID-19 PHE.

Now that vaccines are available and the worst of the emergency is behind us, many hospitals are starting to return to normal; elective surgeries are being completed, admissions are being accepted, etc.  While some normalcy is returning in some areas, other areas are seeing ongoing lockdowns or even spikes in cases.  CMS continues to apply the same criteria to the waiver, but the situations can be very different in different areas.  This is the key change from “then” to “now”.  You can no longer say that everyone is affected by the COVID-19 PHE. 

Look at your potential admissions and ask if the reason why there was not a 3-day stay has something to do with the PHE.  Another way to ask the question is, would this patient have been admitted to the hospital pre-COVID PHE?  If the answer is no, then the waiver probably does not apply. 

Now, you can still admit them Medicare A, bill a claim with a Disaster Relief (DR) code, and likely get paid.  Will you get to keep the payment or pay it back plus, is another question.  I suspect that CMS will be flooded with proposals from contractors to audit for take-backs after this is over.  Comparing DR codes to hot spot areas would be a very easy way to identify a target-rich environment.  Would your claims be able to support “otherwise affected by COVID-19” as the reason for a lack of a 3-day hospital stay?