Home Health & Hospice Week

CMS document says NPP orders are OK, but where are the regs?

Medicare has provided home health agencies with an array of regulatory flexibilities under the COVID-19 pandemic, but providers are hesitant to pull the trigger on one area that could really help increase access to home health services — non-phy­sician practitioners’ orders.

Background: One of the many clauses in the Coronavirus Aid, Relief, and Economic Security (CARES) Act signed into law March 27 broadens home health ordering under Medicare. The law amends Section 1814(a) of the Social Security Act (42 U.S.C.1395f(a)) to add nurse practitioners, clinical nurse specialists, and physician assistants to the list of clinicians who can order home health (see Eli’s HCW, Vol. XXIX, No. 12-13).

The CARES Act specifies that the Department of Health and Human Services “shall prescribe regulations to apply the amendments … to items and services furnished, which shall become effective no later than 6 months after the date of the enactment of this legislation. The Secretary shall promulgate an interim final rule if necessary, to comply with the required effective date.”

Industry members had hoped to see the Centers for Medicare & Medicaid Services include the regulations for the change in the interim final rule that put many CARES Act provisions into regulation. But the rule, released March 30 and published in the April 6 Federal Register, didn’t address the topic.

When CMS issued its summary of waivers and rules, “Home Health Agencies: CMS Flexibilities to Fight COVID-19,” it included a passage about the CARES Act provision.“HHS is utilizing enforcement discretion with regards to the requirements at §§ 409.43 and 424.22 in order to allow a patient to be under the care of a nurse practitioner or clinical nurse specialist … who is working in accordance with State law, or a physician assistant … who is working in accordance with State law, and for such physician/practitioner: (1) order home health services; (2) establish and period­ically review a plan of care for home health services (e.g., sign the plan of care), (3) certify and re-certify that the patient is eligible for Medicare home health services. This will provide the flexibility needed for more timely initiation of services for home health patients, while allowing providers and patients to practice social distancing.”

Important: “HHS will not conduct audits to ensure that only physicians provided orders, signed and dated the plans of care, and certified/recertified patient eligibility for claims with ‘claim through dates’ of March 1 or later submitted during this public health emergency,” the flexibilities document says.

On one hand: Under this language, “agencies can be comfortable allowing NPPs (NPs, CNS, PA) signing orders, signing plans of care, [and] certifying eligibility,” judges attorney Robert Mar-kette Jr. with Hall Render in Indianapolis.“CMS has stated they won’t perform audits of orders, certifi­cations, etc., to ensure only physicians undertook these functions,” Markette points out.“That specific statement about audits seems to reflect a broad non-enforcement decision.”

On the other hand: But “there is no comfort yet,” says National Association for Home Care & Hospice President William Dombi. A number of reasons are preventing agencies from taking advantage of the CARES Act provision, Dombi says, including:

• CMS’ statement in the flexibilities document affects only Conditions of Payment, not Conditions of Participation, Dombi tells Eli. The CoPs “still require a physician plan of treatment,” he notes.“We have asked CMS to address that problem, but have not seen such done yet.”
• State licensing and state scopes of practice may still limit NPPs ordering home health.“Even if CMS waives the CoP requirement on a physician plan of treatment, states will need to take conforming action for there to be a comfort zone,” Dombi says. Likewise, “not all states allow NPs and PAs to write home health orders. The CARES Act provision specifically recognizes that state law controls in that regard.”

Markette takes a different view. To those who have concluded that the NPPs cannot act at all until there are regulations, “CMS’ flexibilities eliminate that concern,” Markette maintains.“CMS has decided to allow NPPs to fill this role now, without any regulations, in order to provide needed flexibility to agencies.”

Note: The four-page flexibilities document for HHAs is at www.cms.gov/files/document/covid-home-health-agencies.pdf.