COVID-19 public health emergency waiver flexibilities and the path to reducing regulatory burden
In November 2020, the Department of Health and Human Services (HHS) released two requests for information (RFIs), seeking input from stakeholders on reducing regulatory burden and regulatory relief that could support economic recovery. A significant focus in one of the RFIs is to consider the costs and benefits of retaining particular regulatory changes beyond the COVID-19 public health emergency (PHE). As a result of these RFIs, we could see more waiver flexibilities and new provisions become permanent through the rulemaking process this year.
Many very prominent industry organizations have responded to these RFIs, in support of continuing to reduce provider burden, in addition to strong advocacy for the Centers for Medicare and Medicaid Services (CMS) to not only expand the provision of telecommunications technologies in home health and hospice, but also to provide reimbursement for telehealth visits.
Particularly for home health and hospice providers, the COVID-19 pandemic has accelerated the acceptance of technology that would have likely taken several years for regulatory bodies to embrace. Here, we’ll discuss some of the waivers resulting from the COVID-19 PHE that have or will become permanent, and how they’ve impacted home health and hospice providers.
The allowance of telehealth for both home health and hospice
One of the most significant flexibilities allowed for home health and hospice providers has been the allowance of telecommunications technologies in the provision of telehealth visits—as long as those visits do not substitute for in-person home visits, are included in the plan of care, and are tied to patient-specific needs as identified in the comprehensive assessment. These flexibilities included regulation text changes, allowing broader use of telecommunications technology to be considered allowable administrative costs on the Medicare cost report.
While these telehealth flexibilities became permanent for home health (HH) providers in the 2021 HH Final Rule, it does not include reimbursement for telehealth. Currently, home health providers cannot bill for telehealth visits or count them toward low-utilization payment adjustment (LUPA) thresholds—a pain point that has led to significant advocacy within the industry.
Likewise, hospices are advocating for expanded telehealth allowances to include general inpatient and respite levels of care for consultations that occur between hospices and facility staff, as well as the ability to report telehealth services on claims. CMS has been exploring the reporting of telehealth visits on claims, but they have also emphasized that this is only under consideration at this time. Additionally, CMS continues to support the move toward claims-based quality measures, which would support the reporting of telehealth visits on claims so that they can be included in claims quality measurements.
While telehealth is surely one of the most significant waivers evolving in home health and hospice in the wake of COVID-19, it’s certainly not the only allowance on the path to permanently reducing provider burden. Let’s look at some additional waiver flexibilities that have or may become permanent.
Home health and hospice waivers on the path
NPPs allowed to certify for home health
CMS released an interim final rule in April 2020, which made permanent the waiver flexibilities to allow Medicare-eligible HH patients to be under the care of non-physician practitioners (NPPS), inclusive of a nurse practitioner (NP), clinical nurse specialist (CNS), or physician assistant (PA), in accordance with state laws. Per these flexibilities made permanent, NPPs can order HH services, establish and review/sign the plan of care, and certify/recertify eligibility for home health, promoting increased access to beneficiaries.
Expanded allowance for home health occupational therapists
Last December, the Consolidated Appropriations Act of 2021 was signed into law and included a provision to extend the current waiver permitting occupational therapists to conduct the initial assessment visit and complete the comprehensive assessment. This promotes home health occupational therapists’ ability to practice at the top of their licenses while offering flexibility to home health agencies to schedule and staff home health assessment visits. This extended waiver included a requirement for it to be made permanent no later than January 1, 2022, so it is anticipated that we will see this extended waiver proposed to be made permanent in rulemaking for home health this summer.
Hospice aide competency requirements
The Hospice FY 2022 proposed rule, released on April 8, 2021, proposes to make the COVID-19 PHE waiver allowing the use of pseudo-patients for hospice aide competency training permanent, in addition to proposing hospices conduct a competency evaluation related to only the deficient and related skill(s) noted during a hospice aide supervisory visit. These changes would allow quicker training for highly skilled aides in order to provide high-quality patient care while protecting patient health and safety. They will be accepting public comments on the rule through June 7, 2021.
Stay up to date on COVID-19 PHE waivers
Between caring for patients in the midst of a global public health emergency and keeping up with the industry’s evolving waivers, it’s difficult for providers to stay educated on the latest public health emergency waivers. We’ve compiled some recommended resources to help you and your organization stay up to date on the latest info:
- CMS coronavirus waivers & flexibilities webpage
- CMS current emergencies webpage
- COVID-19 emergency declaration blanket waivers for healthcare providers
- Frequently asked questions to assist Medicare providers
While we can stay educated on current COVID-19 PHE waivers, the true question is whether they will live on once the pandemic is behind us. Many providers have become accustomed to specific waiver flexibilities, so it’s up to our industry to advocate for what’s working to become permanent allowances.