Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

CMS posted an expanded set, dated April 29, of Medicare regulatory flexibility measures for hospice organizations related to the coronavirus (COVID-19) pandemic, supplementing the previous COVID hospice flexibilities guidance from March 29.

The previous guidance was welcome news for hospice providers, but did not fully address certain ongoing concerns expressed by many hospices. In the original flexibilities guidance, CMS established (1) suspension of the requirement that hospices use volunteers; (2) waiver of certain non–core hospice services (e.g., PT, OT, and SLP); and (3) completion of comprehensive assessments within 21 days instead of 15 days.

These flexibilities remain, but CMS has now clarified and/or established additional flexibilities, including the following:

  • Additional Detail on Use of Telehealth: For hospice services, remote patient monitoring, telephone calls (audio only & TTY), and two-way audio-video technologies are permitted. Heretofore, CMS had not expressly permitted hospices to render services via audio-only communications. This clarification on the use of telephone calls with hospice patients is welcome news for those hospices and patients concerned with face-to-face patient contact at this time. The need for use of telehealth should be detailed in the plan of care for patient and family.
    • Only in-person visits can be included in hospice claims (previously announced in other CMS billing guidance).
    • Face-to-face visits for the third benefit period or beyond cannot be done by audio/telephone only, although they may be done by two-way audio-video technology.
    • Comprehensive assessments may be done by two-way audio-video, although CMS expects most comprehensive assessments will be done in person for home patients. See CMS FAQs, question #4, p. 50 (updated May 1, 2020).
  • Workforce Issues: CMS relaxed in-person supervisory requirements of hospice aides.
    • CMS postponed the annual onsite hospice aide supervisory visit under 42 CFR § 418.76(h)(2) until 60 days from the end of the public health emergency (PHE).
    • CMS also postponed the annual assessment of hospice aide skills and competence and associated training until the end of the first full quarter following the lifting of the PHE.
  • Quality Assurance and Performance Improvement (QAPI): During the PHE, CMS is allowing hospices to narrow their QAPI focus to infection control issues, along with a focus on any adverse events.

The April 29 COVID hospice flexibility summary also makes note of the agency’s suspension (and reevaluation) of the advanced payment program (a form of a repayable loan to providers) in light of the provider relief funds that HHS has disbursed to providers, including hospices.

The April 29 CMS summary adds that “[d]istributions made through the Provider Relief Fund do not need to be repaid.” While this statements is generally accurate, HHS has elsewhere cautioned that providers that accept relief funds are obligated to comply with the terms and conditions of those funds, including ensuring that the funds are only used for the preparation for, prevention of, and response to COVID-19.

Some hospices may find themselves in a position where they may not be able to use all of the relief funds accepted for a permissible purpose and so may be required to refund a portion thereof to HHS. CMS has not yet issued guidance on how providers are expected to return unspent provider relief funds, but we anticipate such guidance in the future.