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.

Implications

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.

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Healthcare providers, including doctors and therapists who treat nursing home patients, will see a key payment factor cut by 4.4% next year.

The Centers for Medicare & Medicaid Services announced the change to the Medicare Physician Pay Schedule conversion factor in a broader physician payment rule published late Tuesday. The conversion factor is part of a CMS formula used to reimburse for Part B care including physician and nurse practitioner services, rehab therapy, lab work and X-rays for Medicare patients in nursing facilities.

Last year, CMS proposed a 3% conversion factor cut, but Congress passed supplemental funding to offset it. It’s a strategy more than 100 healthcare groups are hoping they can win legislative backing for again this year, but the path forward isn’t as clear as in years past.

“Congress has stepped in for the last two years to mitigate the cut and we are lobbying for them to do it again this year,” Advion Executive Vice President Cynthia Morton told McKnight’s Long-Term Care News Tuesday night. “Congress is becoming fatigued with restoring this cut, and so we are concerned that Congress won’t mitigate the entire 4.4% cut that CMS has now finalized.”

That, combined with sequestration cuts triggered by a federal budget-neutrality law, could drive providers out of practice, other medical groups cautioned.

“The rate cuts would create immediate financial instability in the Medicare physician payment system and threaten patient access to Medicare-participating physicians,” The American Medical Association said, calling the rule an “ominous reality unless lawmakers act before Jan. 1.”

In total, physicians could see Medicare payments cut by nearly 8.5% next year, if so-called PAYGO cuts also are factored in.

Morton expressed relief that the broader rule put off plans to reduce payment for codes related to remote therapeutic monitoring.

“CMS had created these codes to move into digital health. Strangely, then they proposed to significantly reduce the value of the codes,” Morton said. “However, in response to concerns raised by Advion and other stakeholders, CMS is NOT finalizing its proposal to create 4 new G-codes (GRTM-1-4).”

Instead of reducing value based on who provides the service, CMS is finalizing the changes to allow any RTM service to be furnished under general supervision.

CMS is also making significant changes to reimbursement for specimen collection and travel allowance payments for clinical labs serving nursing facilities and the home care patients, Morton noted. In 2023, CMS will increase the specimen collection fee from $3 to $10.57 for a specimen collected from a SNF patient or on behalf of a home health agency. CMS is also proposing to adjust the rate for inflation in 2024.

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The US Department of Health and Human Services (HHS) Office of Inspector General (OIG) found that despite the positive impact of telehealth flexibilities on home health agencies (HHAs), there is a need for further review of the services they provide and the patients it benefits most.

As COVID-19 cases grew, so did restrictions on in-person healthcare. This was mainly due to precautions surrounding exposure to disease. However, this led to the Centers for Medicare and Medicaid Services (CMS) implementing regulatory flexibilities that helped expand telehealth use.

In the last several years, telehealth has proven beneficial, assisting patients and providers in maintaining access to healthcare. Recently, the OIG reviewed HHA activity, providing further insight into telehealth use among these facilities and necessary steps to take in the future.

HHAs primarily serve Medicare patients, providing care to over 3 million beneficiaries in the initial year of the COVID-19 pandemic. In this review, the HHS OIG surveyed a nationally representative sample of 400 HHAs in fall 2021, of which 396 participated in the Medicare program. It also interviewed 12 HHAs on the topic of challenges and care strategies.

The agency found that the most common hurdles to care during the COVID-19 pandemic related to staffing and infection control. It also noted the common steps that many HHAs took to cope with challenges, along with the government actions that assisted these organizations. These mainly included the offering of paid leave and telehealth flexibilities.

But the persistent difficulties experienced by HHAs when using telehealth raise questions regarding its future in home healthcare, according to the report.

The OIG provided recommendations for future actions, including that CMS should review how HHAs use telehealth specifically, the services provided through telehealth, and the types of patients who benefit the most from it.

The agency also noted the need to evaluate the impact telehealth flexibilities have on home healthcare. Lastly, it recommended that CMS work with the Administration for Strategic Preparedness and Response’s Technical Resources, Assistance Center, and Information Exchanges to compose a set of steps for HHAs to take in the event of a future public health emergency.

Various organizations have recently composed sets of recommendations that aim to enhance telehealth use.

For example, in April, the Government Accountability Office (GAO) informed Medicaid of the need to review the effects of telehealth. GAO took this action after a review of telehealth data from five states that showed sharp increases in use between March 2020 and February 2021.

These findings, along with the consideration that Medicaid had not evaluated the quality of care provided to its beneficiaries, led the GAO to make two recommendations: Medicaid should collect information on telehealth quality and take the necessary steps based on this data.

Research from April described the steps that Boston University and Boston Medical Center researchers took to review how telehealth widened the digital divide as well as how to eliminate digital health inequities.

The main inequities related to digital fluency, which is the ability to use tools, and the capacity for health advocacy, which is a patient’s ability to advocate for their medical needs. Based on this, researchers created a three-pronged strategy that involved creating federal and state policies to operationalize telehealth infrastructure, providing more clarity regarding standards for access portals, and supporting families with limited virtual care experience.

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The Centers for Medicare & Medicaid Services should evaluate how the use of telehealth affected the quality of home healthcare during the COVID-19 pandemic, according to the Office of Inspector General (OIG). The government watchdog issued the recommendation in a report to the Department of Health and Human Services on Tuesday, Oct. 18.

The OIG surveyed 400 home health agencies in the fall of 2021 about their pandemic experiences, because it said HHAs “play an important role in caring for Medicare beneficiaries.” Due to staffing and infection control issues over the past 30 months, home health agencies were granted flexibilities to help mitigate pandemic-related difficulties. Staffing problems and the use of telehealth persist, the OIG found, raising questions about how the latter should be utilized in the future. 

Telehealth challenges

Among the challenges HHAs faced with telehealth during the pandemic were access to phone service, internet and equipment; assessing patients with the remote technology; and lack of reimbursement. Rural agencies had an even harder time with telehealth, with most pointing to insufficient internet as an obstacle, the OIG said. Among all the agencies that used telehealth during the pandemic, 43% anticipated they will not use it afterwards; 57%, however, said they would.

CMS lacks insight into HHAs’ use of telehealth due to limited reporting requirements, the report noted. The OIG also said emergency preparedness plans required by CMS guided HHAs’ responses to the pandemic but “fell short of fully addressing a global emergency such as COVID-19.” As a result, the agency is recommending CMS collaborate with the Administration for Strategic Preparedness Response Technical Resources Assistance Center to apply what it learned during the PHE to update or develop emergency preparedness training for HHAs on future infectious disease outbreaks. CMS has agreed with the recommendations. 

Waivers and flexibilities

At the beginning of the pandemic, HHS issued a number of waivers and new rules to help home health agencies during the PHE. In addition to granting flexibility through the use of telemedicine, the department also gave HHAs additional time to submit patient assessments. Earlier this month, the Biden administration extended the COVID-19 PHE through Jan. 11, 2023. 

Last summer, the House passed legislation that would extend telehealth benefits and reimbursements through 2024. The bill is now before the Senate.

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S. 1309

To provide payments for home health services furnished via visual or audio telecommunication systems during an emergency period.

IN THE SENATE OF THE UNITED STATESApril 22, 2021

Ms. Collins (for herself, Mr. Cardin, Mr. Marshall, and Mrs. Shaheen) introduced the following bill; which was read twice and referred to the Committee on Finance

A BILL

To provide payments for home health services furnished via visual or audio telecommunication systems during an emergency period.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Home Health Emergency Access to Telehealth Act” or the “HEAT Act”.

SEC. 2. AUTHORIZATION OF PAYMENTS FOR HOME HEALTH SERVICES FURNISHED VIA VISUAL OR AUDIO TELECOMMUNICATION SYSTEMS DURING AN EMERGENCY PERIOD.

(a) Waiver Authority.—

(1) IN GENERAL.—The first sentence of section 1135(b) of the Social Security Act (42 U.S.C. 1320b–5(b)) is amended—

(A) in paragraph (8), by striking “and” at the end;

(B) in paragraph (9), by striking the period at the end and inserting “; and”; and

(C) by adding the following new paragraph:

“(10) in the case of home health services furnished in an emergency area (or portion of such an area) during any portion of any emergency period (as those terms are defined in subsection (g)(1)(C)), the provisions of subparagraphs (A) and (B) of section 1895(e)(1), as determined appropriate by the Secretary.”.

(2) DEFINITIONS OF EMERGENCY AREA; EMERGENCY PERIOD.—Section 1135(g)(1) of the Social Security Act (42 U.S.C. 1320b–5(g)(1)) is amended—

(A) in subparagraph (A), by striking “subparagraph (B)” and inserting “subparagraphs (B) and (C)”; and

(B) by adding at the end the following new subparagraph:

“(C) ADDITIONAL EXCEPTION.—For purposes of subsection (b)(10), an ‘emergency area’ is a geographical area in which, and an ‘emergency period’ is the period during which, there exists a public health emergency declared by the Secretary pursuant to section 319 of the Public Health Service Act.”.

(b) Authorization.—Section 1895(e) of the Social Security Act (42 U.S.C. 1395fff(e)) is amended—

(1) in paragraph (1), by striking “Nothing” and inserting “Subject to paragraph (2), nothing”;

(2) by redesignating paragraph (2) as paragraph (3); and

(3) by inserting after paragraph (1) the following new paragraph:

“(2) EXCEPTION FOR PUBLIC HEALTH EMERGENCIES.—Nothing in this section shall be construed as preventing a home health agency furnishing a home health unit of service for which payment is made under the prospective payment system established by this section for such units of service from furnishing services via a video or audio telecommunication system if such services—

“(A) are furnished pursuant to a waiver under section 1135(b)(10);

“(B) constitute no more than 50 percent of the number of billable visits, consistent with the in-person visit equivalency determination, billed under the 30-day period of care established under section 484.215(f) of title 42, Code of Federal Regulations;

“(C) are furnished to a beneficiary under a plan of care established by a physician or practitioner with whom the beneficiary has an existing care relationship prior to the receipt of home health services that includes home health services to be furnished via a video or audio telecommunication system; and

“(D) such beneficiary consents to receiving home health services via a video or audio telecommunication system.”.

(c) Implementation.—

(1) IN GENERAL.—The Secretary shall prescribe regulations to apply to home health services furnished pursuant to the amendments made by this Act, which shall become effective no later than 60 days after the date of enactment of this Act. The Secretary shall issue an interim final rule, if necessary, to comply with the required effective date.

(2) CONSIDERATIONS.—In prescribing such regulations, the Secretary may consider including—

(A) standards for the content of orders and patient consent for such services;

(B) documentation of such services provided and billing units of such services;

(C) the nature and level of resources utilized for such services provided via video or audio telecommunication systems for purposes of determining equivalency with in-person visits in establishing the payment for such services; and

(D) standards to ensure program integrity and prevent the incidence of fraud, waste, and abuse with respect to such services.

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The Choose Home Care Act of 2021 was introduced in the U.S. House of Representatives early Friday morning.

The legislation was previously introduced in the Senate at the end of July.

If enacted, the landmark Choose Home legislation would create an add-on payment to the traditional Medicare Home Health Benefit, allowing providers to mix in telehealth, transportation, personal care and other services. The goal of the concept is to give nursing home-eligible Medicare beneficiaries more options as to how and where they recover following a trip to the hospital.

The House version of Choose Home was sponsored by U.S. Reps. Henry Cuellar (D-Texas) and James Comer (R-Ky.).

Since being introduced in the Senate, Choose Home has received “an outpouring of support from America’s home health community as well as consumer and patient advocates,” National Association for Home Care & Hospice (NAHC) President William A. Dombi said in a statement released shortly after the bill’s introduction.

“[We believe that] demonstrates how important it is to increase access to safe, cost-effective care at home for Medicare beneficiaries after hospitalization,” Dombi continued. “We commend Reps. Cuellar and Comer for their leadership on issues impacting the delivery of home care and are excited to see this bill introduced in the U.S. House.”

So far, the House version of Choose Home is also co-sponsored by Reps. Sanford Bishop, Jr. (D-Ga.), Brendan Boyle (D-Pa.), Buddy Carter (R-Ga.), Dwight Evans (D-Pa.) and Vicente Gonzalez (D-Texas). Lawmakers Brian Higgins (D-N.Y.), Clay Higgins (R-La.), Eleanor Holmes Norton (D-D.C.), Mike Johnson (R-La.), Tom O’Halleran (D-Ariz.), Tom Suozzi (D-N.Y.) and Paul Tonko (D-N.Y.) also have backed the legislation.

U.S. Sens. Debbie Stabenow (D-Mich.) and Todd Young (R-Ind.) are the lead sponsors of the Senate version, which also has drawn plenty of co-sponsors and bipartisan support.

In addition to NAHC, Choose Home is supported by AARP, LeadingAge, Allies for Independence, the National Council on Aging, Moving Health Home, the Council of State Home Care & Hospice Associations and the Forum of State Associations.

The Partnership for Quality Home Healthcare (PQHH) is likewise a major advocate for Choose Home.

“We applaud Reps. Cuellar and Comer, and all the original co-sponsors, for recognizing the value of home health and the importance of advancing legislation to increase seniors’ care options after hospitalization,” PQHH Executive Director Joanne Cunningham said in a statement. “With their support, we are hopeful we will see the Choose Home Care Act enacted this year in order to help us better protect our nation’s vulnerable aging and sick populations while also modernizing the Medicare Home Health Benefit.”

‘It’s the right move’

If it makes it out of Congress, Choose Home would generate an estimated $247 million in annual savings to the Medicare system, with the majority of that coming from reduced skilled nursing facility (SNF) utilization, a Dobson DaVanzo & Associates analysis found.

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CMS released the 2021 home health final rule on Thursday, October 29, 2020. 

There were minimal changes compared to the home health proposed rule that was released in July 2020. Probably the best news in the rule was the 1.9% aggregate increase (or $390 million) in reimbursement that agencies will realize in 2021. Although the increase was less than the original 2.6% increase that was in the proposed rule.

Other highlights from the final rule are as follows:

• Patient-Driven Groupings Model (PDGM) remains in play with no changes to how HHRG (Home Health Resource Group) rates are determined.
• There were no changes to case-mix rates and LUPA thresholds from 2020 to 2021.
• Behavioral adjustments that were realized in 2020 due to the implementation of PDGM remain intact. This was a controversial component of the final rule given that the preliminary PDGM data does not support that agencies have actually changed behaviors to support the negative adjustment.
• The delivery of infusion services under the Home Health benefit is drastically changing and now requires a rather costly home infusion therapy supplier enrollment as well as a decrease in reimbursement for these services.
• There are no changes to the quality reporting program for home health agencies.
• Some relief has been realized for Value-Based Purchasing states through the public health emergency period where no aggregate increases or decreases in reimbursement will be realized.
• The provision of telehealth services remains the same as what has been realized through the public health emergency period. Telehealth services can be provided by home health agencies with appropriate physician collaboration and care planning, but no direct reimbursement can be realized by agencies providing these services.
• The split-percentage payment will now be 0% (was 20% in 2020) when home health agencies submit RAPs (Request for Anticipated Payment).
• The requirements for RAP submission have been updated to include the following which mirrors the Notice of Admission process that goes into effect 1/1/2022:
  • The appropriate physician’s order (written or verbal) that is inclusive of services required for the initial visit. This order must be received and documented per the Home Health Conditions of Participation.
  • The initial visit within the 60-day certification period has to be made and the individual admitted to Home Health care.
• A non-timely submission payment reduction will occur when a home health agency does not submit a RAP within 5 calendar days from the start of care or any subsequent 30 day payment period.
  • The reduction in payment will be equal to 1/30^th of the 30-day payment period amount for each day that the RAP is delayed not to exceed the total payment of the claim.   Essentially any RAP that is delayed by 30 days or greater will receive $0 in reimbursement for that payment period.
  • Home Health agencies can submit RAPs for multiple 30-day payment periods at the same time to reduce administrative burden.
  • For payment periods resulting in a LUPA (Low Utilization Payment Adjustment), no per visit reimbursement will be provided for any visits that occur on days that fall within the period before the submission of the RAP.

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As the COVID-19 pandemic continues across the United States, states, payers, and providers are looking for ways to expand access to telehealth services. Telehealth is an essential tool in ensuring patients are able to access the healthcare services they need in as safe a manner as possible. In order to provide our clients with quick and actionable guidance on the evolving telehealth landscape, Manatt Health has developed a federal and comprehensive 50-state tracker for policy, regulatory and legal changes related to telehealth during the COVID-19 pandemic. This summary of findings is current as of noon ET, Thursday, October 15.

Federal Actions and Legislation:

Select introduced federal legislation:

Federal Flexibilities and Reports:

Flexibilities

On Friday, October 2, the U.S. Department of Health & Human Services (HHS) announced that the Public Health Emergency (PHE) declaration for COVID‑19 will be renewed for another 90 days, beginning on October 23 (the date the PHE was previously scheduled to expire) and extending through January 20, 2021. For more information the renewed PHE, please see our Manatt Newsletter.

Reports:

On October 14, CMS released a Preliminary Medicaid and CHIP Data Snapshot to provide information on telehealth utilization during the PHE. This data shows more than 34.5 million services were delivered to Medicaid and CHIP beneficiaries via telehealth between March and June of this year—an increase of 2,600% when compared to the same period in 2019. Additionally, CMS updated its State Medicaid & CHIP Telehealth Toolkit: Policy Considerations for States Expanding Use of Telehealth, COVID-19 Version to help providers and other stakeholders understand which policies are temporary or permanent, and to communicate telehealth access and utilization strategies to providers.

On July 28, HHS released the issue brief Medicare Beneficiary Use of Telehealth Visits: Early Data from the Start of the COVID-19 Pandemic. On July 15, CMS director Seema Verma released Early Impact of CMS Expansion of Medicare Telehealth During COVID-19, a blog on Health Affairs. This article highlights CMS’s efforts to expand telehealth during COVID-19 through the addition of 135 allowable telehealth services and the expanded list of types of health care providers who can offer telehealth, and explores how various mechanisms that have allowed for the increase in telehealth utilization during the PHE may continue.

State Laws, Policy, and Guidance

In Medicaid, states have broad authority to permit coverage for telehealth services. Prior to the COVID-19 emergency, many states had implemented broad coverage for telehealth, and in recent months, all 50 states and Washington D.C. have issued guidance expanding telehealth for their Medicaid populations. Medicaid programs have the broad ability to cover telehealth services and the flexibility to rapidly scale up benefits and adjust normal cost-sharing rules, making Medicaid well positioned to quickly address the needs of its beneficiaries during states of emergency.

Select State Legislation and Executive Orders

Since the COVID-19 public health emergency was declared, states have been moving to pass legislation that would permanently expand access to telehealth. The below chart lists telehealth legislation that has been enacted since March 13, the beginning of the PHE, and executive orders that have made the temporarily waived restrictions around telemedicine permanent.

State Trends

Coordination on Telehealth: Colorado, Nevada, Oregon, and Washington announced they will work together to identify best practices around access, confidentiality, equity, standard of care, stewardship, patient choice, and payment/reimbursement. The overarching goal of this partnership is to “ensure that the nation benefits from our knowledge as changes to federal regulations are contemplated, to support continued application and availability of telehealth in our states, and to ensure that we address the inequities faced in particular by tribal communities and communities of color”.

Commercial Payment Parity: In light of the COVID-19 pandemic, states that previously did not require payment parity for telehealth services in commercial plans have begun to issue temporary guidance requiring payment parity for specific telehealth cases. Prior to COVID-19, 9 states (Arkansas, Delaware, Georgia, Hawaii, Kentucky, Minnesota, Missouri, New Mexico, and Utah) had payment parity laws for commercial payers in 2020. California, Arizona and Washington had also recently passed telehealth payment parity legislation in 2019 and early 2020 that would come into effect in January 2021, bringing the total to 12 states. The Governor of Washington recently issued an Executive Order in March which required immediate implementation of its payment parity law.

Appendix K Telehealth Flexibilities: As of October 15, CMS has approved Section 1915(c) Waiver Appendix K (Appendix K) from 47 states and Washington, D.C. Appendix K is a long-standing federal authority that helps states streamline and expedite changes to their 1915(c) home and community-based services (HCBS) waivers to prepare for and respond to emergencies. As of October 15, at least 44 of the approved Appendix K waivers included telehealth flexibilities for states. Some of these flexibilities include adding electronic methods of delivery for case management; permitting personal care services that require only verbal cueing, in-home habilitation, or monthly monitoring; temporarily modifying provider qualifications; temporarily modifying processes for level of care evaluations and re-evaluations; and temporarily modifying medication management.

Audio-Only Telehealth Services: Many state Medicaid agencies are following Medicare’s lead to expand telehealth coverage to audio-only. This includes states that are either adding coverage for telephonic evaluation and management codes or allowing providers to bill the usual service codes when the services are delivered via telephone. As of October 15, all 50 state Medicaid agencies and Washington D.C. have issued guidance to allow for a form of audio-only telehealth services.

Child Well-care and Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) Visits: EPSDT is a mandated benefit that provides comprehensive and preventive healthcare services for children under age 21 who are enrolled in Medicaid. Each state is responsible to provide EPSDT services to children and adolescents enrolled in its Medicaid program. The American Academy of Pediatrics has issued guidance recommending all children still receive EPSDT visits. As of October 15, only 19 states and Washington D.C. have issued telehealth guidance for Child Well-care and EPSDT visits.

Early Intervention Services: As of October 15, 16 states have issued guidance to providers to allow for telehealth or remote care delivery for early childhood intervention services. On April 5, Illinois’ Chief Bureau of Early Intervention cleared all previous Illinois Department of Healthcare and Family Services requisites in order to implement and practice Illinois’ first-ever Early Intervention Teletherapy. On April 6, the Illinois Early Intervention Program (IEIP) instituted use of Live Video Visits as a temporary measure until the Illinois state of emergency is lifted. The IEIP is now working on tip sheets for families in English and Spanish and developing resources to help families with internet fees and costs for a computer, camera, and microphone. On April 7, North Carolina (NC) Medicaid released new telehealth guidance expanding the services and provider types eligible to deliver telehealth during the COVID-19 pandemic. Special Bulletin COVID-19 #34 expands telehealth codes and guidance to services delivered through local education and children’s developmental service agencies, and services pertaining to dietary evaluation and counseling, medical lactation, research-based behavioral health treatment for autism spectrum disorder, and diabetes self-management education. NC Medicaid also published an accompanying billing code summary to equip providers with the new codes pertaining to telehealth.

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Washington, D.C. — U.S. Senators Susan Collins (R-ME) and Ben Cardin (D-MD) introduced the Home Health Emergency Access to Telehealth (HEAT) Act, a bipartisan bill to provide Medicare reimbursement for audio and video telehealth services furnished by home health agencies during the COVID-19 emergency and future public health emergencies.  U.S. Representatives Roger Marshall (R-KS), Terri Sewell (D-AL), Jodey Arrington (R-TX), and Mike Thompson (D-CA) introduced companion legislation in the House of Representatives.

“Home health serves a vital role in helping our nation’s seniors avoid more costly hospital visits and nursing home stays.  The COVID-19 emergency has further underscored the critical importance of home health services and highlighted how these agencies are able to use telehealth to provide skilled care to their patients,” said Senator Collins, the Chairman of the Aging Committee.  “This bipartisan bill would ensure that seniors in Maine and across the country retain access to remote home health services during the COVID-19 emergency and future public health emergencies.”

“The COVID-19 pandemic has challenged home health providers’ ability to provide care to patients in their homes. Home health providers have been able to overcome these challenges by utilizing telehealth to deliver some services to Medicare beneficiaries,” said Senator Cardin, a member of the Senate Finance Health Care Subcommittee. “This legislation allows home health services to be provided via telehealth during a public health emergency in order to ensure patients receive needed care.”

The Home Health Emergency Access to Telehealth (HEAT) Act would authorize Medicare reimbursement for home health services provided through telehealth during a public health emergency where telehealth can be used appropriately.  The services would not be reimbursed unless the beneficiary consents to receiving the services via telehealth.  To ensure that the Medicare home health benefit does not become a telehealth-only benefit, Medicare reimbursement would only be provided if the telehealth services constitute no more than half of the billable visits made during the 30-day payment period.  

The bipartisan bill has been endorsed by several home health organizations and agencies, including Northern Light Health, MaineHealth Care at Home, LeadingAge, the Visiting Nurse Associations of America, the National Association for Home Care & Hospice (NAHC), and the Partnership for Quality Home Healthcare.

“On behalf of Northern Light Home Care clinicians and patients in our care, I want to thank Senator Susan Collins for her outstanding leadership in sponsoring legislation to require Medicare to cover home care services provided by visual or audio telehealth communication during an emergency period.  During the COVID-19 pandemic our nurses and therapists cared for patients throughout the State of Maine providing telehealth care allowing the patient to stay at home and receive essential clinical services. Access to telehealth care in the home avoided hospital or emergency room care for thousands of patients including children, older adults and individuals living in shelters,” said Lisa Harvey-McPherson RN, Northern Light Health Vice President Government Relations.

“We are grateful to Senator Collins for sponsoring this important legislation that will provide critical support for telehealth services during times of public health emergency.  Though telehealth has proven to be a highly efficient and effective means of providing needed care, particularly for our seniors, Medicare reimbursement continues to present a barrier to realizing its full potential. This bill takes an important step to expand access to needed telehealth services that have proven to improve health outcomes while reducing total costs for patients with chronic health care conditions,” said Donna Deblois, President of MaineHealth Care at Home.

“Many of our home health members have been providing critical services without reimbursement during the pandemic. The HEAT Act would resolve this inequity and put our home health members on par with all other providers with regards to flexibility during this and future public health emergencies. LeadingAge and our partners VNAA/ElevatingHOME thank the sponsors, Senators Collins and Cardin and Representatives Sewell, Marshall, Arrington, and Thompson, for all of their work on this important legislation,” said Katie Smith Sloan, President/CEO of LeadingAge and Acting President/CEO of the Visiting Nurse Associations of America/ElevatingHOME.

“From the early onset of the COVID-19 pandemic it has been well known that limiting person-to-person contact is key in reducing transmission and infection rates,” said Bill Dombi, President of NAHC.  “Enabling home health agencies to incorporate telehealth visits into the plan of care, with reimbursement, will unlock new means of safe care delivery bringing peace of mind to Medicare beneficiaries. This bill, the Home Health Emergency Access to Telehealth (HEAT) Act, will ensure that home health providers are able to utilize the full array of tools at their fingertips to reduce the risk of virus transmission, protecting patients in their homes, and health care professionals on the frontlines. NAHC thanks Senators Collins and Cardin, and Representatives Marshall, Sewell, Arrington and Thompson for their continued leadership in enabling patients to safely receive care in the home.”

“The Partnership applauds Senators Collins and Cardin for their introduction of this important legislation, which supports the provision of telehealth to Medicare home health patients. We thank the Senators for their ongoing and steadfast support for home health. It’s especially important during the COVID19 pandemic, as home health is an even more important lifeline for America’s disabled and elderly community,” said Joanne Cunningham, Executive Director, Partnership for Quality Home Healthcare.

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Today, the Centers for Medicare & Medicaid Services (CMS) issued a final rule [CMS-1730-F] that finalizes routine updates to the home health payment rates for calendar year (CY) 2021, in accordance with existing statutory and regulatory requirements. This rule also finalizes the regulatory changes related to the use of telecommunications technology in providing care under the Medicare home health benefit.

This rule adopts the revised Office of Management and Budget (OMB) statistical area delineations as described in OMB Bulletin 18-04, and finalizes a 5 percent cap on wage index decreases in CY 2021. This rule also finalizes Medicare enrollment policies for qualified home infusion therapy suppliers, updates the home infusion therapy services payment rates for CY 2021, finalizes a policy excluding home infusion therapy services from home health services as required by law, and finalizes policies under the Home Health Value Based Purchasing Model published in the May 8, 2020 interim final rule with comment period, as required by law.

The final rule can be downloaded from the Federal Register at: https://www.federalregister.gov/public- inspection/.

Strengthening Medicare – Further Promoting Telecommunications Technology in Medicare

In an effort to promote efficiencies, this rule finalizes, beginning January 1, 2021, permanent changes to the home health regulations, as originally outlined in the March 2020 “Policy and Regulatory Revisions in Response to the COVID–19 Public Health Emergency” Interim Final Rule with Comment (85 FR 19230). Home health agencies (HHAs) can utilize telecommunications technologies in providing care to beneficiaries under the Medicare home health benefit, as long as any provision of remote patient monitoring or other services furnished via a telecommunications system or audio-only technology are included on the plan of care.  The use of such telecommunications technology or audio-only technology must be tied to the patient-specific needs as identified in the comprehensive assessment.   CMS will not require a description of how such technology will help to achieve the goals outlined on the plan of care; rather, documentation in the medical record should explain how such services will help facilitate treatment outcomes.

The use of technology may not substitute for an in-person home visit that is ordered on the plan of care and cannot be considered a visit for the purpose of patient eligibility or payment. However, the use of technology may result in efficiencies in the furnishing of home health care, which may result in changes to the frequencies and types of in-person visits as ordered on the plan of care. This rule also expands the definition of telecommunications technology, in addition to remote patient monitoring, that HHAs are allowed to report as allowable administrative costs on the HHA cost report. These finalized policies will ensure patient access to the latest technology and give HHAs predictability that they can continue to use telecommunications technology as part of patient care.

Updates to the Home Health Prospective Payment System rates for CY 2021

This rule finalizes routine, statutorily required updates to the home health payment rates for CY 2021. CMS estimates that Medicare payments to HHAs in CY 2021 will increase in the aggregate by 1.9 percent, or $390 million, based on the finalized policies. This increase reflects the effects of the 2.0 percent home health payment update percentage ($410 million increase) and a 0.1 percent decrease in payments due to reductions in the rural add-on percentages mandated by the Bipartisan Budget Act of 2018 for CY 2021 ($20 million decrease). This rule also updates the home health wage index including the adoption of revised OMB statistical area delineations and limiting any decreases in a geographic area’s wage index value to no more than 5 percent in CY 2021.

Updates to the Home Infusion Therapy Benefit for CY 2021

This rule implements Medicare enrollment policies for qualified home infusion therapy suppliers, updates the CY 2021 home infusion therapy services payment rates using the CY 2021 Physician Fee Schedule amounts, and excludes home infusion therapy services from home health services as required by law.

Home Health Value Based Purchasing Model

This rule finalizes, without modification, policies that appeared in the May 8, 2020 Federal Register (85 FR 27553), as required by law

For additional information about the Home Health Prospective Payment System, visit https://www.cms.gov/Medicare/Medicare-Fee-for-Service- Payment/HomeHealthPPS/index.html and https://www.cms.gov/center/provider-Type/home- Health-Agency-HHA-Center.html.

For additional information about the Home Health Patient-Driven Groupings Model, visit https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HomeHealthPPS/HH-PDGM.html.

For additional information about the Home Infusion Therapy Services benefit, visit – https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Home-Infusion- Therapy/Overview.html.

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