Emergency Declaration Waivers, Interim Rule for Medicare Home Health and Hospice Providers Amid COVID-19

April 6, 2020

On March 31, 2020, the Centers for Medicare & Medicaid Services (CMS) issued an interim final rule with comment period (IFC). This alert is part of a series of alerts discussing the IFC provisions and comprehensive actions CMS is taking that are most important to healthcare providers.

In response to the extraordinary circumstances of the 2019 novel coronavirus (COVID-19) pandemic, on March 31, 2020, CMS issued an IFC with 30 immediate rule changes and temporary waivers to the current regulatory framework. CMS aimed to provide the American healthcare system with maximum flexibility and lessen administrative burdens to allow Medicare beneficiaries to receive medically necessary services. Highlights of the IFC include numerous regulations to increase access to telehealth services and testing in patients’ homes, improve infection control, temporarily eliminate certain paperwork requirements so providers can focus on caring for COVID-19 patients, expand the healthcare workforce capacity, increase hospital capacity and make other changes to combat the COVID-19 pandemic. CMS announced that these temporary changes and regulations were effective on March 31, 2020, across the entire U.S. healthcare system for the duration of the emergency declaration.

As part of CMS’ efforts to protect healthcare workers and increase access to telehealth services for Medicare patients, the IFC responds to concerns by stakeholders regarding home health and hospice regulations, including concerns surrounding telehealth billing, waivers of certain in-person visits, and the definition of “homebound” in regard to suspected COVID-19-infected patients.

This article summarizes the four key takeaways in the IFC that Medicare home health and hospice providers need to know.

Home Health Providers

1. Use of Telehealth. As discussed in a previous McGuireWoods alert, the CARES Act expands the availability for Medicare-enrolled home health agencies (HHAs) to utilize telehealth technology in home health episodes of care for Medicare beneficiaries. The guidance and interim final rule indicate that HHAs may now provide more services to beneficiaries using telehealth within the 30-day episode of care. However, CMS clarified that any telehealth services provided to Medicare beneficiaries must be designated as such in the beneficiary’s plan of care and that telehealth services do not replace the in-person visits specifically required by the plan of care. The guidance also specifies that HHAs may work with a beneficiary’s healthcare practitioner to revise plans of care in order to utilize telehealth where feasible, safe and appropriate. The plans of care should describe why telehealth is being used and how it assists the patient in accomplishing the goals set by the healthcare practitioner in the plan of care. The interim final rule makes it clear that CMS has not waived the Medicare home health conditions of participation requiring minimum thresholds for in-person visits, but CMS is creating flexibility by permitting HHAs and healthcare practitioners to reduce the number of in-home visits required in a beneficiary’s plan of care, thereby reducing the amount of direct contact in the home setting. HHAs must still meet the required minimum in-person visit threshold in order to receive the full episodic reimbursement for home health services.

2. Expansion of the Definition of “Homebound.” The guidance and interim final rule also lower beneficiary qualification standards for home health services by including patients with a confirmed or suspected COVID-19 diagnosis in the definition of “homebound.” This designation allows patients with confirmed or suspected COVID-19 diagnoses to immediately qualify for and receive in-home health services under the Medicare home health benefit. Medicare will also reimburse HHAs for obtaining COVID-19 testing samples as part of an otherwise covered visit. CMS has not expanded the definition of “homebound” to include those who are under a “self-quarantine” or not otherwise exhibiting symptoms. Additionally, all other requirements for determining eligibility for receiving the Medicare home health benefit continue to apply.

3. Expansion of Healthcare Practitioners Permitted to Order Home Health Services. The interim final rule allows Medicaid patients to more easily receive home health services by allowing providers practicing within their scope of practice, such as nurse practitioners and physician’s assistants (mid-levels), to directly order home health services for beneficiaries. Ordinarily, only physicians are permitted to order home health services, and because of this expansion, other qualified mid-levels are now permitted to order home health services, including nursing/aide services, medical supplies, equipment and appliances, physical therapy, occupational therapy and speech-pathology/audiology services. Ordering healthcare practitioners must continue to ensure that all ordered services properly document the need for such orders and that a beneficiary’s plan of care reflects the need for such services.

4. Clarified Regulatory Changes. The guidance and the interim final rule include several other important regulatory changes previously announced by CMS or included in the CARES Act: (a) physician’s assistants and nurse practitioners may now execute a beneficiary’s plan of care and perform certifications and recertifications of home health eligibility for Medicare beneficiaries; (b) home health initial assessments and homebound status reviews may be performed remotely or by record review — no longer requiring in-person visits; (c) during the COVID-19 crisis, CMS will not enforce penalties related to noncompliance with the OASIS submission deadlines; (d) CMS has extended the cost reporting deadlines for home health providers by at least one month for each period initially; and (e) during the COVID-19 crisis, HHAs are not required to perform the required 14-day nurse on-site visits or the 14-day aide supervision visits typically required for reimbursement. CMS is encouraging HHAs to maintain proper aide supervision remotely to the extent possible.

Hospice Providers

1. Use of telehealth. Similar to home health, as discussed above, the CARES Act expands, and CMS clarifies in the guidance and interim final rule, that telehealth technology may be widely used and available for Medicare-enrolled hospice providers. Hospice services may now be provided to a patient receiving routine home care via telehealth, as long as the use of telehealth is feasible and appropriate given the patient’s circumstances. Hospices must continue to document the use of such technology in the patient’s plan of care and comply with other Medicare hospice conditions of participation. Additionally, use of telehealth must be tied to each patient’s specific needs as identified in the comprehensive assessment and the measurable outcomes that the hospice anticipates will occur as a result of implementing the plan of care. Hospices are allowed to report costs of telecommunications technology used to furnish services under the routine level of care on their cost reports using the “other patient services” designation on Worksheet A. Also similar to home health, CMS is waiving the requirement for hospice nurses to conduct on-site visits every two weeks to evaluate whether nursing aides are providing services in the home consistent with the beneficiary’s plan of care.

2. Recertifications. As previously announced, the interim final rule confirms that face-to-face encounters typically required for patient recertification for the Medicare hospice benefit may now be conducted via telehealth. Typically, in addition to the written certifications of terminal illness required for the hospice benefit, a physician or mid-level must have a face-to-face encounter for any patient expected to reach the third benefit period. Recertification typically occurs between 60 and 90 days in hospice. Recertification may now be conducted via telehealth communications between the patient and patient’s healthcare provider. CMS requires that all telehealth services be capable of two-way audio and video; a phone call will not suffice.

3. Waiver of Non-Core Services. Additionally, CMS is waiving the requirement for hospices to provide certain non-core services (such as physical therapy, occupational therapy and speech-language pathology services). Rural providers were previously allowed to request a waiver of this requirement, but the blanket waivers in the interim final rule and in the guidance now confirm that non-core hospice services are not required to be provided by hospice providers during the COVID-19 crisis. Hospices must continue to provide core services (physician services, counseling services, etc.) to all hospice patients.

4. Waiver of the Volunteer Requirement. Typically, hospice providers must use unpaid volunteers for up to 5 percent of patient care hours. The volunteer requirement includes training, recruiting and retaining capable volunteers to provide certain services to hospice beneficiaries and administrative services to the hospice. The guidance and the interim final rule waive the requirement for hospices to utilize volunteers during the COVID-19 crisis. CMS recognized that volunteer availability will be reduced related to the COVID-19 pandemic and that waiving the requirement is in the best interest of the hospice staff, patients and volunteers.

As the COVID-19 national emergency continues to evolve, CMS has encouraged all home health agencies and hospice providers to monitor the Centers for Disease Control and Prevention website for up-to-date information and resources and to contact local health departments when needed. Please contact the authors of this alert for additional guidance on how other COVID-19 considerations may impact healthcare providers. McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial coronavirus-related business and legal issues.