Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

Imagine you are the primary caretaker for your 94-year-old terminally ill mother who lives in your home while under hospice care during the coronavirus (COVID-19) pandemic.

Overwhelmed, exhausted, and drained—or even exposed to COVID-19—you discuss caregiver break with the hospice social worker who suggests “respite stay” for your mother but says Medicare only covers respite services up to five days, and only when care is furnished in an inpatient facility, like a nursing home. You don’t want that option given your mother’s heightened risk of contracting COVID-19 in a facility.

New bipartisan legislation introduced by US Senators Shelley Moore Capito (R-WV) and Sherrod Brown (D-OH) would provide greater flexibility for Medicare hospice respite care during the COVID-19 public health emergency (PHE). The proposed COVID-19 Hospice Respite Care Relief Act of 2020 (S. 4423) would allow the Secretary of Health and Human Services to extend respite care during any PHE for up to 15 days (from the current five-day limit), and to permit Medicare coverage while respite care is furnished by hospice staff at the patient’s home.

According to the bill’s co-sponsors, “When the person who has stepped up to provide care to seriously ill hospice patients at home is not able to provide care because of their own illness, Hospices need the ability to provide respite support for longer and in the patient’s own residence. In these unprecedented times, five days is inadequate for family members to return to their caregiving roles.”

Respite care is reimbursed on a fixed daily rate, and CMS had increased that daily rate significantly last year after many years of a relatively low daily rate. Given that this bill and resulting respite care flexibility would be effective for the duration of the COVID-19 PHE, any meaningful benefit for hospice patients and their caregivers would require that the legislation find an effective vehicle to facilitate timely passage. To that end, hospice groups have advocated for the inclusion of S. 4423 in COVID-19 relief legislation.