Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

COVID-19 significantly affected home-based care providers, such as home health agencies (HHAs) and hospices, whose staff had to overcome both physical and mental burdens of going into patients’ homes to deliver care, especially in the days before a COVID-19 vaccine. While these providers benefitted from a number of Medicare program regulatory flexibilities during the public health emergency (PHE), virtually all of those will sunset on May 11, 2023.

In anticipation of the PHE’s expiration, the Centers for Medicare and Medicaid Services (CMS) issued guidance for both HHAs and hospice providers that clarifies which regulatory flexibilities will continue.

Flexibilities Expiring for Both HHA and Hospice

The following HHA and hospice provider flexibilities will end in conjunction with the May 11 expiration of the PHE:

  • The waiver of annual onsite supervisory visits for each aide that provides services on the agency’s behalf. All previously postponed site visits must be completed within 60 days from the end of the PHE.
  • The narrowed scope of Quality Assessment and Performance Improvement (QAPI) programs, which permitted a focus on infection control and tracking adverse events more closely associated with COVID-19. Maintaining broader QAPI programs will be required upon the expiration of the PHE.
  • CMS accelerated review of any pending or new provider and supplier enrollment applications.

Hospice-Specific Flexibilities That Will Sunset

The following hospice provider flexibilities will end in conjunction with the expiration of the PHE:

  • Allowance for the provision of services to Medicare patients receiving routine home care through telecommunications, including remote patient monitoring, telephone calls, and two-way audio-visual technology.
  • The extension permitting completion of comprehensive assessments of patients within 21 days. The comprehensive assessment will return to the 15-day completion requirement.
  • The waiver exempting hospices from providing certain noncore services, such as physical therapy, occupational therapy, and speech-language pathology.

Hospice-Specific Flexibilities Being Extended

The following hospice provider flexibilities will temporarily or permanently extend beyond the expiration of the PHE:

  • The exception allowing providers to conduct face-to-face encounters via telehealth for purposes of recertification to the Medicare hospice benefit is set to expire December 31, 2024.
  • The waiver allowing hospices to postpone annual assessment of the skills and competency of all individuals providing care and postpone the provision of in-service training and education programs. All previously postponed assessments, trainings, and education programs must be completed prior to the end of the first full quarter after the PHE expires (September 30, 2023).
  • The waiver of minimum volunteer hour requirements. Pre-PHE volunteer requirements of 5% of hospice hours will be reinstated at the end of calendar year 2023.
  • Through the FY 2022 Hospice Wage Index and Payment Rate Update Final Rule (CMS-1754-F), CMS finalized the waiver allowing hospice aides to complete evaluations through use of pseudo-patients (such as roleplay participants or computer-based mannequin devices) instead of on patients themselves. Relatedly, CMS also finalized hospice aide supervision requirements to address situations of deficient practice and institute remediation.

HHA-Specific Flexibilities That Will Sunset

The following HHA flexibilities will end in conjunction with the PHE’s expiration:

  • The waiver of the requirement to provide detailed information regarding discharge planning when a patient, their caregiver, or their representative is selecting a post-acute care provider.
  • The extension allowing HHAs to provide patients a copy of their medical record within 10 business days instead of four business days.
  • The waiver of the requirement for a nurse to conduct onsite visits every two weeks, including the requirements for aide supervision. Note that, pursuant to CY 2022 Home Health Prospective Payment System Final Rule (CMS 1747-F), CMS now permits a virtual aide supervision visit for patients receiving skilled care once per 60-day episode in rare circumstances. For patients receiving nonskilled care, a registered nurse must conduct an in-person supervisory visit every 60 days and semiannually make a supervisory direct observation visit for each patient to whom the aide provides services.
  • Outcome and Assessment Information Set (OASIS) extensions that permit completion of the comprehensive assessment within 30 days instead of five days and waiver of the 30-day OASIS submissions requirement.
  • The waiver allowing occupational therapists, physical therapists, and speech language pathologists to perform initial and comprehensive assessments for all patients receiving therapy services in the plan of care, instead of performing such assessments when only therapy services are ordered. Note that, pursuant to CMS 1747-F, occupational therapists alone may continue to perform assessments pursuant to this waiver after the PHE expires.

HHA-Specific Flexibilities Being Extended

The following HHA flexibilities will temporarily or permanently extend beyond the expiration of the PHE:

  • The CMS allowance for face-to-face encounters via telehealth when the patient is at home. The home is only permitted to serve as an originating site through December 31, 2024.
  • The delay for completion of home health aide in-service training requirements will end and be reinstated to pre-PHE requirements at the end of calendar year 2023.
  • The CMS allowance for HHAs to provide services using telecommunications technology within the 30-day period of care so long as the services are included in the patient’s plan of care and do not replace necessary in-person visits. Note that home health services provided through telecommunications technology must be included on a patient’s home health claim beginning July 1, 2023.
  • The CMS allowance for nurse practitioners, clinical nurse specialists, and physician assistants—in addition to physicians—to order home health services, establish and review a plan of care, and certify and recertify eligibility for Medicare claims with a “claim through date” on or after March 1, 2020.


As the regulatory flexibilities permitted during the PHE begin to expire, HHAs and hospice providers must have internal systems in place to either come into compliance with expiring waivers or maintain lasting compliance with the surviving flexibilities.

HHAs and hospices will not continue to enjoy significant use of telehealth after the PHE ends outside of supervisory and face-to-face encounters by physicians. This is perhaps unsurprising given that the nature of HHA and hospice care is centered around hands-on nursing and other care to actively treat or palliate patients’ symptoms.

As the healthcare sector continues to endure challenges, such as the nurse staffing shortage, the sunset of these regulatory flexibilities will add to the regulatory compliance burdens for HHAs and hospices. Nevertheless, while in-person services will always remain a central component of these home-based care services, HHAs and hospices can use the skills and technologies they may have developed during the PHE to enhance their in-person care and data collection.