Home Health & Hospice Week

Home health agencies and hospices are under siege by COVID-19 in many parts of the country and preparing for battle in the others. Home care providers may not be getting all the support they want from regulators, but the feds are helping HHAs on one critical point — access to face-to-face physician encounter visits.

On March 17, the Centers for Medicare & Medicaid Services announced an expansion of telehealth benefits for physicians and their patients. The changes allow physicians to provide telehealth visits to patients anywhere, not just in rural areas, and in their homes rather than at a healthcare facility.“These changes allow seniors to communicate with their doctors without having to travel to a healthcare facility so that they can limit risk of exposure and spread of this virus,” CMS Administrator Seema Verma said in a release.“Clinicians on the frontlines will now have greater flexibility to safely treat our beneficiaries.”

The change was made possible by the 1135 waiver following President Trump’s national emergency declaration on March 13 and Department of Health and Human Services Secretary Alex Azar’s public health emergency declaration on Jan.31.

At the time, providers were still unsure whether those visits could count as the physician face-to-face encounter required for home health and hospice certifi­cation. A few days later, they got an answer.

Good news: “The face-to-face encounter … can be performed via telehealth in accordance with the requirements under 1834(m)(4)(C) of the Social Security Act,” CMS says in a COVID-19 Frequently Asked Question set last updated March 23.“Under the expansion of telehealth under the 1135 waiver, beneficiaries are able to use telehealth technologies with their doctors and practitioners from home (or other originating site) for the face-to-face encounter to qualify for Medicare home health care.”

Bad news: CMS issued no such clarification for hospice and has told industry representatives while it is considering the matter, it’s not currently planning to take action.

In addition to allowing reimbursed physician telehealth visits to patients in their homes, CMS is also loosening up on what kind of devices those visits can be conducted on.

“Patients will now be able to access their doctors using a wider range of communication tools including telephones that have audio and video capabilities, making it easier for beneficiaries and doctors to connect,” CMS says in its telehealth expansion release.

The feds have further clarified that non-public-facing technologies like FaceTime and Skype can be used for telehealth visits, but public-facing technologies like TikTok and Facebook Live can’t.

“We are empowering medical providers to serve patients wherever they are during this national public health emergency,” said Roger Severino, HHS Office for Civil Rights director.“We are especially concerned about reaching those most at risk, including older persons and persons with disabilities,” Severino added.

The National Association for Home Care & Hospice is lobbying CMS to allow audio-only visits — i.e., phone calls — to count for telehealth visits too, it says.

Hand-in-hand with the telehealth expansion came an OCR announcement of HIPAA enforcement discretion.“OCR will ...not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency,” OCR said.

And HHS also issued a waiver of certain sanctions for noncompliance with certain HIPAA requirements that day.

Further, the HHS Office of Inspector General announced it would not apply “adminis­trative sanctions for reducing or waiving any cost-sharing obligations Federal health care program beneficiaries may owe for telehealth services,” according to a March 17 announcement.

Remember: The telehealth visit doesn’t have to be for COVID-19 reasons to qualify for the expansion and exemptions.“OCR emphasized the need to ensure remote access to care for patients, especially those most at risk, regardless of whether or not the service is related to COVID-19,” note attorneys Rebecca Schaeffer and Cheryl Choice with law firm K&L Gates in online analysis.“Increasing access to telehealth will reduce the need for healthy or nonsymptomatic individuals to travel to facilities for health care, which in turn will help interpersonal interactions and further reduce transmission.”

Watch out: Providers must also look to another authority which may have stricter requirements, Schaeffer and Choice remind.“Telehealth is heavily regulated by state law, and providers should ensure that they are meeting all state requirements prior to initiating telehealth services.”

Also, don’t take the OCR statement as carte blanche to ignore HIPAA requirements.“While these OCR pronouncements give covered entities some additional flexibility, it is limited, and overall HIPAA requirements continue to apply,” Schaeffer and Choice caution.

Do this: Point your referring docs who are considering telemedicine to the American Academy of Family Physicians’ website on the topic, which includes software recommendations and billing tips: www.aafp.org/patient-care/emergency/2019-coronavirus/COVID-19-daily/telehealth.html.

Note: The telehealth expansion announcement is at www.cms.gov/newsroom/press-releases/president-trump-expands-telehealth-benefits-medicare-beneficiaries-during-covid-19-outbreak and a related fact sheet is at www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet. OCR’s notice of enforcement discretion is at www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html. HHS’ HIPAA waiver announcement is at www.hhs.gov/sites/default/files/hipaa-and-covid-19-limited-hipaa-waiver-bulletin-508.pdf and the OIG’s copay waiver notice is at https://oig.hhs.gov/fraud/docs/alertsandbulletins/2020/factsheet-telehealth-2020.pdf. CMS’ COVID-19 FAQs clarifying the home health face-to-face visit are at www.cms.gov/files/document/03092020-covid-19-faqs-508.pdf and Medicaid FAQs are at www.medicaid.gov/state-resource-center/downloads/covid-19-faqs.pdf.