CMS Offers Guidance for Ambulatory Surgical Centers Enrolling as Hospitals During the COVID-19 Pandemic

April 8, 2020

In a previous COVID-19 update ,  we discussed an emergency declaration blanket waiver for health care providers that allows Medicare-enrolled ambulatory surgical centers (“ASCs”) to temporarily enroll as hospitals for the purpose of providing hospital services during the COVID-19 public health emergency. ASCs have been identified as critical resources that can assist in expanding capacity for inpatient and outpatient hospital services for patients requiring a higher level of care. Recently, the Centers for Medicare & Medicaid Services (“CMS”) issued a memorandum which outlines the steps to process attestation statements and certification kits for existing Medicare-certified ASCs temporarily enrolling as hospitals during the COVID-19 public health emergency. The following are answers to some questions that may arise from CMS’ memorandum. 
What is the Process for ASCs to Temporarily Enroll as Hospitals? 
Any Medicare-certified ASC wishing to enroll as a hospital during the COVID-19 public health emergency should notify the appropriate Medicare Administrative Contractor (the “MAC”) of the ASC’s intent to temporarily enroll as a hospital, by calling the MAC’s provider enrollment hotline and following CMS’ instructions in the 2019-Novel Coronavirus (COVID-19) Medicare Provider Enrollment Relief Frequently Asked Questions (FAQs) document . As part of the enrollment, the MAC will ask the ASC to submit a signed attestation statement, available here . After the MAC reviews the signed attestation statement, the MAC will forward the statement to CMS. Within two business days, the CMS Regional Office (“RO”) will review survey activity of the facility from the previous three years to determine if Immediate Jeopardy (“IJ”)-level deficiencies were cited. For deemed status ASCs, CMS’ Central Office will provide a list of those ASCs with such IJ-level deficiencies to the CMS Survey Operations Group. If no IJ-level deficiencies are found or if IJ-level deficiencies are found but removed through subsequent survey process, the RO will approve the attestation statement, create a facility profile and certification kit in the Automated Survey Process Environment, assign to the ASC a hospital CMS Certification Number (“CNN”), and send the MAC a tie-in notice as a hospital. The date the attestation statement is accepted by the MAC is the effective date of the ASC’s temporary enrollment as a hospital.  If, within the preceding year, IJ-level deficiencies are found and enforcement activities are currently ongoing, the RO will not accept the signed attestation statement, and will alert the MAC of CMS’ denial to temporarily enroll the ASC as a hospital. If such denial occurs, no further action can be taken by the ASC to temporarily enroll as a hospital during the COVID-19 public health emergency. 
Is an Onsite Survey Required? 
No. An onsite survey is not required for an ASC to temporarily enroll as a hospital. However, the RO may authorize a State Survey Agency to conduct a focused infection control survey at a later date to ensure safety and quality.  
Can an ASC Simultaneously Enroll as a Hospital and an ASC? 
An ASC cannot be enrolled as an ASC and a hospital at the same time. If an ASC enrolls as a hospital, it must meet CMS’ hospital Conditions of Participation to receive hospital payments. Thus, any ASC enrolled as a hospital will have its ASC billing privileges deactivated while the ASC is enrolled as a hospital. 
Can the Temporarily Enrolled Hospital Revert Back to an ASC Before the COVID-19 Public Health Emergency has Ended? 
Yes. If the temporarily enrolled hospital decides to revert back to an ASC prior to the end of the COVID-19 public health emergency, the ASC must notify the MAC in writing of the decision.
What Happens After the COVID-19 Public Health Emergency has Ended? 
When the public health emergency due to COVID-19 ends, the RO will terminate the ASC’s hospital CCN and send a tie-out notice to the MAC. The MAC will then deactivate the ASC’s hospital billing privileges and reinstate the ASC’s ASC billing privileges. This reinstatement will be effective on the date the ASC terminates its hospital status. The ASC should comply with all applicable ASC federal participation requirements upon the ASC’s reinstatement as an ASC.  
Can an ASC Remain Enrolled as a Hospital After the COVID-19 Public Health Emergency? 
Yes. If the ASC wishes to participate as a hospital after the COVID-19 public health emergency, the ASC must submit form CMS-855A. An initial survey will be conducted by either the State Agency or Accreditation Organization to determine compliance with CMS’ applicable hospital Conditions of Participation. 
Has Texas Issued Guidance for ASCs Wishing to Temporarily Enroll as Hospitals? 
No. The Texas Health and Human Services Commission (“HHSC”) has not issued guidance on the appropriate course of action to allow Texas ASCs to temporarily enroll as hospitals. Texas ASCs should not proceed until guidance is issued. Our Firm is continuing to monitor HHSC guidance.
Weaver Johnston & Nelson, PLLC
10440 N. Central Expressway, Suite 1400
Dallas, Texas 75231
Phone: (214) 705-3515 
Ashley E. Johnston
Phone: (214) 763-8296
Board Certified – Health Law
Texas Board of Legal Specialization
Joshua M. Weaver
Phone: (214) 705-3516
Board Certified – Health Law
Texas Board of Legal Specialization
Joseph E. Nelson
Phone: (214) 705-3907
Board Certified – Health Law
Texas Board of Legal Specialization
Steve Litke
Phone: (972) 427-7685
Chris Reed
Phone: (214) 705-3935
Kevin Mitchell
Phone: (469) 680-9049
Shannon Cahalan
Phone: (214) 938-9898
Stephanie Toth
Phone: (469) 480-9729
Rachael Nelson Gearing
Phone: (469) 680-9609
Vicki Wanjura
Phone: (214) 587-6026
Paul Wehrmann
Phone: (214) 957-0919
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