COVID-19: What HHAs Need to Know Now Regarding New Regulations, Waivers & Flexibilities

Thoughtware Alert Published: Apr 08, 2020
Long-Term Care Professional Holding Patient's Hand

From the beginning of the SARS-CoV-2 virus and the incidence of COVID-19 public health emergency (PHE), home health agencies (HHA) have been at the forefront of care delivery despite the uncertainties of how federal and state regulatory requirements might evolve as the PHE escalated. 

In addition to new legislation, such as the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the Trump administration has issued an unprecedented array of temporary regulatory waivers and new rules that directly impact HHAs. While details continue to emerge, the following offers a summary of key issues to date.

Advance Payments

As a result of the CARES Act, CMS has expanded the accelerated and advance payments program during the PHE. This program allows eligible Medicare HHAs to request an advance payment from the Medicare Administrative Contractor (MAC) for an amount equivalent to three months of Medicare payments. 

This program provides HHAs with an opportunity for immediate cash injection, as MACs are to review and issue payment within seven days. However, HHAs should be prepared for automatic recoupment of the advance payment to begin within 120 days of the payment receipt date when the MACs begin to withhold claim payments until the advance payment is fully recouped by day 210. At the end of the repayment period, the MAC will send the HHA a demand letter if there is a remaining balance, which will be subject to interest if not paid within 30 days. The interest rate is the prevailing rate set by the U.S. Department of the Treasury, which is currently 10.25 percent.

Those HHAs that are recognized by Medicare as hospital-based or skilled nursing facility-based should file the request to the MAC responsible for processing the HHA claims, which is limited to CGS, NGS and Palmetto GBA. While this program is available to all eligible HHAs, a request must be submitted to the MAC for each individual Medicare provider number.

See the CMS fact sheet and prior BKD Thoughtware® alert for additional details.

Aide Supervision

CMS has temporarily waived Conditions of Participation (CoP) requirements during the PHE relating to home health aide supervision, including waiving the requirement for a nurse or other professional to conduct an on-site visit every two weeks to evaluate whether aide services are in accordance with the care plan. CMS has encouraged HHAs to continue to conduct supervision by virtual means.

See the CMS fact sheet for additional details.

Certification of Patient Eligibility

The CARES Act included a provision long advocated by HHAs to allow a patient to be under the care of a nurse practitioner (NP), clinical nurse specialist (CNP) or physician assistant (PA) to order HHA services, establish and periodically review HHA plans of care and certify and recertify patient eligibility for HHA Medicare services. 

While CMS has not yet implemented these new provisions, the Department of Health and Human Services (HHS) is using its discretional authority to allow these activities to proceed, and in turn will not conduct audits to ensure that only physicians provided orders, signed and dated the plans of care and certified and recertified patient eligibility for claims submitted during the PHE. 

Many states do not allow NPs, CNPs or PAs to perform these functions, so HHAs must first confirm these functions are allowed under state law.

See the CMS fact sheet for additional details.

Cost Reports

CMS has extended the due dates for HHAs to file Medicare cost reports, as follows:

  • Fiscal years ended October 31, 2019, or November 30, 2019, are now due June 30, 2020
  • Fiscal years ended December 31, 2020, are now due July 31, 2020

See the CMS fact sheet for additional details.

Diagnostic Testing

CMS has provided clarifications regarding HHA Medicare patients requiring COVID-19 testing. If a patient is already receiving HHA Medicare services, the home health nurse, during an otherwise covered visit, can obtain the sample to send to the laboratory for COVID-19 diagnostic testing. This visit would in turn qualify as a covered billable visit on the HHA Medicare claim; a visit performed solely for collecting the sample would not be covered.

See the CMS fact sheet for additional details.

Face-to-Face Encounters

The CMS expansion of telehealth under the 1135 waiver allows beneficiaries to use telehealth with their doctors and practitioners from home or another originating site to satisfy the face-to-face (FTF) encounter requirement to qualify for HHA Medicare services. A recently applied HIPAA waiver allows the FTF encounter to be conducted using a variety of technology applications, including FaceTime, Skype and others. 

HHA Medicare requirements for the FTF encounter remain unchanged. It must be performed within the required timeframe, related to the primary reason for HHA services and conducted by an allowed practitioner. Documentation of the encounter should reflect what is typically required for telehealth visits and substantiate the patient’s need for skilled HHA services and homebound status. 

See the CMS fact sheet for additional details.

Homebound Status

CMS has expanded the Medicare definition of homebound during the PHE to allow patients to be considered such if it is medically contraindicated for the patient to leave the home. This includes patients with a confirmed or suspected COVID-19 diagnosis or patients with conditions making them more susceptible to contract COVID-19. Beneficiaries exercising self-quarantining for safety reasons would not be considered homebound unless a physician certifies that it is medically contraindicated for the beneficiary to leave the home.

See the CMS fact sheet for additional details.

Initial Assessments

CMS has waived CoP requirements during the PHE to allow HHAs to perform initial assessments to determine immediate care needs and homebound status remotely or by record review. This is intended to allow care to be delivered in the environment best suited for each patient while supporting infection control, as well as help comply with Medicare’s requirement that the initial assessment be conducted within a 48-hour timeframe.

The initial assessment is often performed during the start of care comprehensive assessment visit, which remains required to be conducted in person. Under this new flexibility, when an initial assessment is performed remotely or by record review, the start of care date would not be effective until the on-site comprehensive assessment visit is performed.

See the CMS fact sheet for additional details.

Medical Review

CMS has temporarily suspended medical review activities conducted by MACs, Supplemental Medical Review Contractors (SMRC) and Recovery Audit Contractors (RAC). This includes pre-pay Targeted Probe and Educate reviews conducted by MACs and post-pay review activities conducted by SMRCs and RACs. 

No additional documentation requests will be issued for the duration of the PHE and all claims currently in the pre-pay review process will be released and paid, while claims in the post-pay review process will be released from review. Any Medicare claims auto-denied for nonresponse of medical record documentation from March 1, 2020, until March 26, 2020, will have the denial reversed and allow payment if an appeal has not been filed. If an appeal has been filed the normal appeals process will be followed.

The medical review suspension does not apply to Unified Program Integrity Contractors (UPIC), as CMS has indicated it may conduct medical reviews during the PHE if there is an indication of potential fraud.

See CMS FAQs for additional details.

Quality Reporting

CMS is providing relief to HHAs on the timeframes related to OASIS data by extending the five-day completion requirement for the comprehensive assessment to 30 days and waiving the 30-day OASIS transmission requirement.

It is important to note that CMS has not waived any requirements related to billing. OASIS assessment data must be completed prior to billing requests for anticipated payment (RAP) and must be successfully transmitted to the Internet Quality Improvement and Evaluation System (iQIES) prior to claims submission.

See the CMS fact sheet for additional details.

Requests for Anticipated Payments

CMS is allowing MACs to extend the auto-cancellation date of RAPs during the PHE. No additional details have been released by CMS or MACs at this time.

Review Choice Demonstration

The HHA Medicare Review Choice Demonstration (RCD) previously implemented in Illinois, Ohio and Texas was paused effective March 29, 2020, and will remain paused throughout the PHE. Claims with service dates on or after March 29, 2020, will be processed by the MAC without enforcement of RCD pre-claim review (PCR) or post-pay review processes without being subject to the 25 percent payment reduction. 

HHAs currently participating in the PCR option can choose to continue to follow this process during the PHE and the MAC will continue to conduct PCR and issue affirmations prior to claims submission. HHAs participating in other RCD options will not receive pre- or post-pay medical review on claims submitted during the PHE, and medical review requests issued on claims submitted prior to the PHE will be released and paid. 

Following the end of the PHE, the MAC will conduct post-pay medical review on all claims subject to RCD that were submitted and paid during the pause other than those billed with an affirmed Unique Tracking Number (UTN), which will continue to be excluded from future medical review.

RCD will not begin in North Carolina or Florida on May 4, 2020, as previously scheduled. Once the PHE has ended, CMS will provide notice on its RCD website rescheduling the start date of the demonstration.

See CMS FAQs and fact sheet for additional details.


The CARES Act provides a suspension of the 2 percent reduction in Medicare provider payments due to sequestration effective May 1 through December 31, 2020. At this time CMS has not released details about whether May 1 represents claim service dates or payment dates.


CMS has provided HHAs with flexibility during the PHE to provide care to Medicare patients using telehealth in conjunction with in-person visits. While services provided via telehealth offer an opportunity to promote clinician and patient safety and reduce costs, the services are not allowed to be billed as a covered visit on the HHA Medicare claim and therefore do not count towards the Low Utilization Payment Adjustment threshold for payment purposes.

Telehealth services must be ordered on the plan of care along with a description of how the use of such technology will help achieve patient goals without substituting for physician-ordered in-person visits. Telehealth visits must relate to the skilled services being furnished by the nurse, therapist or therapy assistant to optimize the services provided during the in-person visits.

While telehealth visits do not affect Medicare payment, the PHE has resulted in some state Medicaid programs paying HHAs as though the visits were performed in-person.

See the CMS fact sheet for additional details.

As with most topics related to COVID-19, changes are being made rapidly. Please note that this information is current as of the date of publication.

While this information focuses on care delivery and reimbursement issues, there are numerous other new COVID-19-related business provisions that directly affect HHAs. If you have questions please contact your BKD Trusted Advisor™ or submit the Contact Us form below.

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