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

Thoughtware Alert Apr 28, 2020
Nurse and Patient

From the beginning of the SARS-CoV-2 virus and incidence of COVID-19 public health emergency (PHE), hospices have been particularly challenged with managing care delivery to high-risk terminal patients residing at home and in inpatient facilities, despite uncertainties of how operations would be affected by evolving federal and state regulatory requirements.

In addition to recent 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 affect hospices. 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-certified hospices to request an advance payment from the Medicare Administrative Contractor (MAC) for an amount equivalent to three months of Medicare payments. This program provides hospices with an opportunity for immediate cash injection, as MACs are to review and issue payment within seven calendar days. In the first week of the expanded program’s availability, CMS approved more than 17,000 requests, delivering approximately $34 billion in payments.

Hospices 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 hospice a demand letter if there’s 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.

Hospices recognized by Medicare as home health-based, hospital-based or skilled nursing facility-based should file the request to the MAC responsible for processing the hospice claims, which is limited to CGS, NGS and Palmetto GBA. While this program is available to all eligible hospices, 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 hospice 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 being delivered in accordance with the care plan. CMS has encouraged hospices to continue to conduct supervision by virtual means.

See the CMS fact sheet for additional details.

Comprehensive Assessments

CMS has waived CoP requirements during the PHE related to updating patient comprehensive assessments. While this extends the time frames for updating the comprehensive assessment from 15 to 21 days, the waiver doesn’t apply to the review of the plan of care, which must continue to occur at least every 15 days.

See the CMS fact sheet for additional details.

Cost Reports

CMS has extended the due dates for hospices 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.

Face-to-Face Encounters

The interim final rule issued by CMS in response to the COVID-19 PHE contained a provision to allow hospice physicians or hospice-employed nurse practitioners (NP) to perform face-to-face (FTF) encounters using telehealth if the encounter is solely for the purpose of fulfilling hospice Medicare recertification requirements. Such FTF encounters solely for the purpose of recertification aren’t allowed as a separately billed service.

The technology allowed for the FTF encounter must employ audio and video two-way, real-time interactive communications. A recently applied HIPAA waiver allows encounters to be conducted using a variety of technology applications, including FaceTime, Skype and others.

Hospice Medicare requirements for the FTF encounter remain unchanged. It must be performed within the required time frame and conducted by a hospice physician or hospice-employed NP. Documentation of the encounter should reflect what is typically required for telehealth encounters and present clinical findings supporting a life expectancy of six months or less.

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 prepay 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 PHE’s duration, and all claims currently in the prepay 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 hasn’t been filed. If an appeal has been filed, the normal appeals process will be followed.

The medical review suspension doesn’t apply to Unified Program Integrity Contractors, as CMS has indicated it may conduct medical reviews during the PHE if there’s an indication of potential fraud.

See CMS FAQs for additional details.

Noncore Services

CMS has temporarily waived CoP requirements during the PHE requiring hospices to provide certain noncore services, including physical and occupational therapy and speech-language pathology.

See the CMS fact sheet for additional details.

Quality Reporting Program

CMS has granted an exemption to the Hospice Quality Reporting Program. Medicare-certified hospices are exempt from reporting data on measures, Hospice Item Set (HIS) data and Consumer Assessment of Healthcare Providers and Systems (CAHPS) surveys for the following quarters:

  • October 1, 2019, through December 31, 2019
  • January 1, 2020, through March 31, 2020
  • April 1, 2020, through June 30, 2020

For HIS, the exemption relieves the requirement to submit admission or discharge assessments occurring in the qualifying quarters. For CAHPS, the exemption relieves the requirement to submit surveys for patient deaths occurring in the qualifying quarters.

See the CMS memo for additional details.

Relief Funds

In a recent Thoughtware alert, we informed healthcare providers of basic information regarding the terms and conditions of the $30 billion in relief funds recently made available as part of the CARES Act. In a recent follow-up Thoughtware alert, we offered additional information for providers to track fund use, including COVID-19 expenses and lost revenue.

By now, most Medicare-certified hospices have received their individual funds and should be implementing processes to adequately account for fund use according to the required terms and conditions. While all hospice fund recipients must maintain the required level of documentation for fund use, hospices that received more than $150,000 in funds must submit a report within 10 days after the end of each calendar quarter with details on the amount of funds received and how those funds have been expended. While the exact content and submission requirements of the report remain unclear, it has been stated that “such reports shall be in such form, with such content, as specified by the Secretary in future program instructions directed to all Recipients.”

Sequestration

The CARES Act provides a suspension of the 2 percent reduction in Medicare provider payments due to sequestration effective for claims with services dates of May 1 through December 31, 2020.

See CMS MLN Special Edition dated April 10, 2020, for additional details.

Technology-Based Hospice Services

CMS has provided hospices with flexibility during the PHE to use telecommunications systems to provide services to Medicare patients receiving the routine home care (RHC) level of care. This flexibility doesn’t apply to patients receiving the continuous home care, inpatient respite care or general inpatient care levels of care.

CMS hasn’t specified the technology used must meet the standard set for “telehealth” but does require the services must be feasible and appropriate to ensure patients can continue to receive services and that such services are reasonable and necessary for the palliation and management of a patient’s terminal illness without jeopardizing the patient’s health or that of the hospice care provider. Further, the use of such technology must be included in the plan of care and tied to patient-specific needs.

Technology-based services aren’t allowed to be billed as a covered visit on the hospice Medicare claim and therefore don’t count toward the service intensity add-on payment that applies to patients receiving RHC in the last seven days of life.

See the CMS fact sheet for additional details.

Telehealth for Physician Services

CMS has further indicated that medical services related to the patient’s terminal illness provided by a hospice physician or hospice-employed NP can be provided via telehealth and billed by the hospice if the physician or NP is the hospice patient’s designated attending physician. The billing process currently followed by hospices for in-person physician services also would apply to telehealth, whereby the physician services would be billed to Medicare on the hospice claim and would in turn be paid in addition to the hospice level of care. Hospices would be expected to then pay the physician.

Volunteers

CMS has temporarily waived CoP requirements during the PHE requiring hospices to use volunteers of at least 5 percent of patient care hours due to the reduced availability of volunteers during the PHE.

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 hospices. If you have questions, please contact your BKD Trusted Advisor™ or submit the Contact Us form below.

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