CMS Issues Additional Staffing and Licensing Waivers

On May 1, 2020, CMS updated its “COVID-19 Frequently Asked Questions (FAQs) on Medicare Fee-for-Service (FFS) Billing.”  The full document can be viewed by clicking here.

In the updated FAQ, CMS answers three important questions related to ambulance vehicle and staffing requirements:

  1. Expired Ambulance Operating Licenses. CMS was asked whether a ground ambulance vehicle operating under an expired license could nevertheless satisfy the Medicare regulations related to vehicle licensing.  CMS indicated that the ground ambulance would remain in compliance with Medicare Program rules to the extent it was permitted to operate without a renewed license under a valid state or local law, regulation, or legally adequate waiver.  It is important to note that this is not a “waiver” of CMS rules per se.  Rather, CMS correctly noted that additional flexibility being provided is based on the state waiving or relaxing its existing rules related to licensures.
  2. Modified Staffing Requirements. CMS was asked whether an ambulance service that staffs its vehicles with personnel that fall below the previously required levels of certification would be in compliance with Medicare Program rules.  The Medicare regulations at 42 C.F.R. §410.41(b) set forth the requirements for vehicle staffing.  These regulations largely defer to state and local laws.  However, they do require a certain minimum level of staffing.  Specifically, the Medicare regulations require that: (i) BLS vehicles be staffed with at least two people, at least one of whom must be certified as an EMT and (ii) ALS vehicles be staffed by at least two people, at least one of whom must be certified as a paramedic or an EMT that is permitted to perform one or more ALS services (e.g., an EMT-Intermediate).  CMS is indicating that it is waiving this minimum staffing requirement under its 1135 Waiver Authority for the duration of the Public Health Emergency.  Under this waiver, CMS will consider the vehicle staffing requirement to be met to the extent state or local law, regulation, or waiver permits an alternative staffing arrangement.  CMS specifically cited examples where the state or locality would permit BLS vehicles to be staffed with EMRs instead of EMT-Basics, or ALS vehicles staffed with RNs instead of paramedics.  Note: claims submitted in reliance upon this waiver should be submitted using the “CR” modifier after the origin/destination modifiers.
  3. Ambulance Services Rendered Across State Lines. CMS was asked whether an ambulance service that provides care across state lines, in a state where it is not certified to provider services or in which its personnel are not licensed, would be in compliance with Medicare Program rules.  CMS indicated that it is using its 1135 Waiver Authority to waive the requirement under 42 C.F.R. 410.41(b) that vehicle personnel be licensed in the state in which they are furnishing services to the extent that: (i) they have an equivalent licensing or certification in another state and (ii) they are not affirmatively excluded from practicing in that state or any other state.  Please note that this waiver only applies to the Medicare certification requirements.  CMS lacks the authority to waive the licensing requirements of the other state or locality.  Thus, for this waiver to apply, you must be permitted to operate in the other state pursuant to that state’s laws, regulations, and/or validly issued waiver.  Note: claims submitted in reliance upon this waiver should be submitted using the “CR” modifier after the origin/destination modifiers.
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coronavirus, Coronavirus Aid Relief and Economic Security Act (CARES Act), COVID-19, Department of Health and Human Services (HHS)


Brian Werfel

Brian S. Werfel, Esq. is a partner in Werfel & Werfel, PLLC, a New York based law firm specializing in Medicare issues related to the ambulance industry. Brian is a Medicare Consultant to the American Ambulance Association, and has authored numerous articles on Medicare reimbursement, most recently on issues such as the beneficiary signature requirement, repeat admissions and interrupted stays. He is a frequent lecturer on issues of ambulance coverage and reimbursement. Brian is co-author of the AAA’s Medicare Reference Manual for Ambulance, as well as the author of the AAA’s HIPAA Reference Manual. Brian is a graduate of the University of Pennsylvania and the Columbia School of Law. Prior to joining the firm in 2005, he specialized in mergers & acquisitions and commercial real estate at a prominent New York law firm. Werfel & Werfel, PLLC was founded by David M. Werfel, who has been the Medicare Consultant to the American Ambulance Association for over 20 years.