April 2020 Regulatory Roundup – How the Federal Response to COVID-19 Helps Hospices

Overview and Purpose

Since the beginning of the public health emergency related to COVID-19, Congress and the Administration have taken a number of steps to provide the health care system with additional resources and flexibilities to adapt to addressing the pandemic. These resources primarily stem from:

The purpose of this document is to provide hospice providers with an overview of these key flexibilities and resources under Medicare as they relate to provision of clinical care, new sources of revenue or enhancements to existing sources of revenue, and administrative requirements such as reporting. The document also indicates where to find further details on the changes discussed.

Note: Many of these flexibilities are currently only in place for the duration of the public health emergency.

Background

Section 1135 waivers allow the Secretary of the Department of Health and Human Services (HHS) to waive or modify requirements related to Medicare, Medicaid, CHIP, or HIPAA in response to a national emergency. There are several forms of 1135 waivers, including waivers individual providers can submit to CMS regional offices for approval, waivers states can use for their Medicaid programs, and “blanket waivers” that the Secretary can apply across the board without the need for entities to submit individual waivers.

CMS’s COVID-19 Interim Final Rule (IFR) changes Medicare payment rules during the public health emergency for the COVID-19 pandemic “so that [health care entities] are allowed broad flexibilities to furnish services using remote communications technology to avoid exposure risks to health care providers, patients, and the community.” For those interested, a summary of the entire IFR can be found here.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act (H.R. 748) is $2 trillion economic stimulus package and the third piece of legislation to address COVID-19. The President signed the legislation into law on March 27. It builds on the two previous appropriations packages, the Families First Coronavirus Response Act (H.R. 6201), and the Coronavirus Preparedness and Response Supplemental Appropriations Act (H.R. 6074). For those interested, a summary of the bill can be found here.

Flexibilities related to providing clinical care

  • Hospices can now use telehealth (audio-only or audio-visual connection) to continue symptom palliation and management as part of routine home care. (IFR)
  • Physicians and nurse practitioners can now use telehealth (audio-visual only) instead of an in-person face-to-face visit to recertify patients as eligible for hospice. (CARES Act, IFR)
  • The following conditions of participation for hospice have been waived or modified (Blanket Waiver):
    • Hospices are not required to use volunteers to provide day-to-day administrative services and/or direct patient care for at least of 5% of patient care hours.
    • Hospices are no longer required to provide non-core services such as physical therapy, occupational therapy, and speech-language pathology during the national emergency.
    • The timeframe for updating comprehensive assessments has been extended from 15 to 21 days. CMS has also clarified that hospice may use telehealth to complete the assessments to the extent that the technology can accurately and comprehensively assess a patient’s needs.
    • Nurses no longer need to conduct onsite supervisory visits every two weeks for the purposes of hospice aide supervision.
    • Hospices may use a “pseudo patient” for the purposes of competency testing of hospice aides for tasks that must be observed being performed on a patient.
    • Hospices need no longer assure that each hospice aide receives 12 hours of in-service training in a 12-month period.

New sources of revenue or enhancements to existing sources of revenue

  • Congress has delayed the 2% sequestration of Medicare provider payments from May 1, 2020 through December 31, 2020. In other words, hospices should soon see a 2% increase reimbursement for all claims with service dates from May 1 through December 31, 2020. (CARES Act)
  • Providers can request “accelerated and advanced” payments from CMS for up to 100% of 3 months’ worth of historical Medicare spending. These effectively serve as loans that must be repaid within a certain amount of time with interest. (CARES Act)
    • Please check with your Medicare Administrative Contractor (MAC) for specific details and an application to request funding.
  • CMS is in the process of distributing $100 billion to providers from the Public Health and Social Services Emergency Fund. The first $30 billion of funding has begun to go out as of April 10. Providers can approximate the amount of funding they are set to receive by multiplying their 2019 Medicare FFS payments by 6.2%. CMS will soon announce how it will distribute the remaining $70 billion. (CARES Act)
  • Note: Providers must sign an attestation within 30 days of receiving the payment and agree to certain terms and conditions.
  • The Federal Communication Commission is providing $200 million in grant funding to help health care providers provide “connected care services to patients at their homes or mobile locations in response to the COVID-19 pandemic.” (CARES Act)
    • Interested providers can apply here.

Flexibilities related to reporting requirements and other administrative duties

  • Hospices are exempt from the reporting on measures related to Hospice Item Set (HIS) and Consumer Assessment of Healthcare Providers and Systems (CAHPS) surveys for all quarters from October 1, 2019 through June 30, 2020 (Q2 2020).
  • CMS has extended cost report due dates for October and November 2019 FYEs to June 30, 2020. The cost report due date for FYE 12/31/2019 will be July 31, 2020.

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