Regulation changes continue as the pandemic enters a sixth month: Your WellSky COVID-19 Briefing
In this edition
Use the links listed below to jump between sections.
NEWS
Current cases & maps
CMS COVID-19 data update
SNFs with more survey deficiencies had more COVID-19 cases
Hotspots and warnings to multigenerational families
Mortality variations by state among COVID-19 Medicare decedents
Stockpiling PPE
COMPLIANCE
District court rules on the definition of “healthcare provider”
CMS finalizes the hospice and SNF final rules
Home health: Face-to-face encounter changes
SNFs and point-of-care testing units
CLINICAL
ADMINISTRATIVE
Expansion of telehealth benefits
Provider Relief Funds: Application extension
RAPs: MLN Matters 11855
Current cases & maps
By the end of July, the United States was six months into a public health emergency that many thought would last a couple of months, at most. Until last week, April was the highest month on record for new cases of COVID-19. However, the U.S. recorded a million more new cases in July than it saw in April. Some have estimated that one in 70 people in the U. S. are actively infected. Deborah Birx, MD, coronavirus response coordinator for the White House Coronavirus Task Force, has described “a new phase” of extraordinarily widespread disease that is no longer sparing rural and sparsely populated areas of the country. After Dr. Scott Gottlieb, former director of the U.S. Food and Drug Administration (FDA), predicted last week that COVID-19 mortalities could hit 300,000 by year’s end, Dr. Birx responded by saying “anything is possible.” She added that Dr. Gottlieb’s stark projection would be less likely if people practiced social distancing and avoided large gatherings.
Last week, as some hotspots started to decline in terms of rolling averages and per capita case increases, deaths began to ramp up. We ended the week with six straight days of more than 1,000 COVID-19 deaths each day.
During the last week of July, total cases rose by another 400,000 for the third straight week to 4.7 million. Deaths increased an average of 1,000 per day from 148,000 at our last report, to 155,000 through August 3. July was a grim month. August may be worse.
The map published each day by the Centers for Disease Control and Prevention (CDC) gets a little bit bluer each week, and in the last seven days, three states — Utah, Oklahoma, and Arkansas — were added to the array of those with more than 40,000 COVID-19 cases. California passed the 500,000-case mark last week, becoming the state with the highest number of cases, followed by Florida at 482,000, Texas at 430,000, and New York at 417,000. Few would have predicted those facts just three months ago.
We continue to see steep and continuing 14-day growth in new cases in Mississippi, Oklahoma, Missouri, Alaska, Wyoming, and Hawaii with more moderate rebounds of new case reports in Maryland, Nebraska, Minnesota, Illinois, Rhode Island, South Dakota, Massachusetts, New Jersey, and New Hampshire. The rolling, two-week averages are dropping in Florida, Arizona, South Carolina, Texas, Idaho, and Utah.
The graph above from the New York Times database shows that, overall, the seven-day average for new cases of the virus is beginning to level off, which is encouraging, even though reported mortalities continue to rise in 29 states. In fact, the CDC has predicted that within the next three weeks, we will see another 19,000 mortalities from the virus, suggesting another three weeks of mortality rates approaching 1,000 per day.
The team at COVID Exit Strategy has updated its maps with data from the COVID Tracking Project. The map below shows the status of spread in each state. The change from last week to this depiction is almost stunning, with adverse trends in 14 states — Hawaii, Oregon, Wyoming, Colorado, Nebraska, South Dakota, Minnesota, Indiana, Kentucky, Virginia, Maryland, Delaware, Pennsylvania, and Rhode Island.
A new map shows how states are doing in terms of testing, based on the volume of tests conducted at a baseline of 500,000 tests per day and positivity rates. In this illustration of our progress to date, green is good and pink is bad.
Other important milestones and trends from the week:
- The U.S. is trending toward a series of regional outbreaks, according to Scott Gottlieb, MD, former director of the FDA. As southern and western states begin to get their outbreaks under better control, new outbreaks are moving north. On Sunday, August 2, Dr. Gottlieb also said that in areas where outbreaks appear to have been better mitigated, success seems to be more the result of personal choice than government intervention.
- Most public health experts are now suggesting that this year’s flu season will be less of an issue than in past years. Even the smallest glimmer of good news helps.
- The Center for Public Integrity, a nonprofit investigative journalism organization, acquired the White House’s updated COVID-19 reporting and made the report public. According to the report, 21 states are in the “red zone,” with Missouri, Maryland, and Wisconsin being the newest additions to the list. In each of these states, the report’s authors recommend more stringent mitigation methods including continued closure of bars, significant limitations on restaurant capacity, closure of gyms, and mask mandates among others. A total of 28 states were in the cautionary yellow zone, with only Vermont in the green zone.
- According to Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, more than 250,000 people have volunteered to participate in vaccine trials. He is “cautiously optimistic” that a vaccine will be available either late in 2020 or in 2021. But he also warned that there will be a “priority list” of people who will be eligible for the first doses. Healthcare workers and those most vulnerable due to age and/or chronic conditions are likely to receive vaccine priority.
- In a new survey of Medicare beneficiaries by e-Health, 55% of people surveyed reported low or no confidence in how the pandemic is being handled. This represents a significant uptick from a 34% response to the same question in April. Similarly, many indicated that they would likely have permanent changes in lifestyle as a result of the pandemic, with nearly half of survey respondents indicating that they will be less likely to fly on an airplane in the future. If coronavirus is still a threat in the fall, 65% of Medicare beneficiaries would prefer to vote by mail in November while the remaining 35% would still vote in person.
- In state news, even though Florida has passed 7,000 deaths, the governor is considering lifting nursing home visitation restrictions — but not without pushback from skilled nursing facility (SNF) operators, who believe that reopening is not yet safe. In California, tip lines devoted to reporting of infection control and safety violations are generating upwards of 2,000 tips a week. These tips have resulted in a significant uptick in fines for noncompliance with state safety mandates. Also in California, a new report by the San Francisco Chronicle suggests that COVID-19 cases in the Bay Area could be 10 times higher than what has been reported. Note that California does not report asymptomatic positive cases, and the state’s health departments have experienced decades of underfunding, leaving many without the resources necessary to respond to the pandemic and report accurately.
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News
CMS COVID-19 data update
The Centers for Medicare & Medicaid Services (CMS) has issued updated claims data and a snapshot of Medicare hospitalizations and spending for COVID-19 cases. According to the snapshot:
- Beneficiaries with dual eligibility for both Medicare and Medicaid are 4.5 times more likely to be hospitalized than other Medicare beneficiaries.
- Black Americans continue to have the highest hospitalization rates, followed by American Indian/Alaskan Natives. In both groups, the predominant causes are higher incidences of chronic illness combined with socioeconomic factors and social determinants.
- Beneficiaries with end-stage renal disease (ESRD) are hospitalized more often than other beneficiaries.
- CMS paid $2.8 billion in Medicare fee-for-service claims for COVID-19 and related hospitalizations through June 20, averaging about $25,000 per beneficiary.
You can read the snapshot here.
SNFs with more survey deficiencies had more COVID-19 cases
Another new study published last week in JAMA Network Open involved more than 8,900 nursing homes in 23 states. The study reported that nursing homes with more COVID-19 cases were also more likely to have higher numbers of reported incidents, substantiated complaints, and survey deficiencies related to emergency preparedness than facilities with no reported cases. Just over 3,000 of the facilities in the study reported having COVID-19 cases by the end of April. The SNFs with higher numbers of reported cases were also more likely to have higher numbers of Medicaid-insured residents.
Hotspots and warnings to multigenerational families
A recent Washington Post article seems to confirm what many feared as states began to open up: Younger people living with or in frequent contact with older family members are infecting them after being out with friends and associates in large gatherings. Healthcare workers in Houston and South Florida report patterns of hospitalizations and deaths that confirm the trend. This finding has caused some public health officials, including Dr. Birx, to urge people in multigenerational living arrangements to even wear masks at home.
Even if older people and those with underlying health conditions attempt to socially distance themselves from risk, many of them eventually mix with younger people — especially when they live together in multigenerational families. As Texas and other southern states began opening up in early May, young people gathering in groups and going to bars and restaurants later engaged with other more vulnerable family members, sometimes with disastrous results. And in parts of the South where caseloads have climbed, there is a higher number of multigenerational households, adding to the concern. Notably, about 20% of the U.S. population lived in a home with at least two adult generations or grandparents and grandchildren under 25 in 2016. As home health and hospice providers encounter patients and families in these types of living arrangements, education and infection control to mitigate potential spread will be critical.
Mortality variations by state among COVID-19 Medicare decedents
Last week, the Kaiser Health Foundation (KHF) published a new study on adults 65 and older who died from COVID-19. KHF noted that this segment of the U.S. population accounts for 16% of the census and 80% of COVID-19 mortalities. Across the country, states have implemented varying policies that have contributed to different case trajectories and deaths among older individuals. Using data from the CDC, KHF analyzed the differences.
On average, throughout the U.S., 80% of all deaths were among those aged 65 and older. The table below shows the states where the mortality rates were higher.
In most states, the share of COVID-19-related deaths among the elderly is higher than their share of deaths from all other causes. For example, in Idaho, 94% of COVID-19 deaths were among the elderly whereas deaths from all causes was only 76%. This comparison held true for most of the states for which data was reviewed. Some exceptions were Arizona, Arkansas, Kansas, New Mexico, New York, and Texas, where the percentages were the same, and Nebraska, where COVID-19 deaths among the elderly were lower than for all other causes.
The study also notes that states that have reported more adults over the age of 65 who have died from COVID-19 are also among those with a disproportionate number of deaths that occurred in long–term care facilities. This includes Idaho, New Hampshire, Massachusetts, Rhode Island, Minnesota, Connecticut, Pennsylvania, Ohio, Kentucky, and Delaware. Added to that, states with high percentages of deaths at long–term care facilities are also more likely to have a larger share of mortalities in the oldest age cohort — people 85 and older.
Finally, the study notes that the number of adults 65 and older who have died of COVID-19 is notably higher in just a few states. For example, 61% of all older adults who had died of COVID-19 as of July 15 resided in just seven states — New York, New Jersey, Massachusetts, Pennsylvania, Illinois, California, and Michigan.
Stockpiling PPE
In a recent news story, we learned that California lawmakers are moving forward with legislation designed to enable the state to stockpile personal protective equipment (PPE) and supplies for healthcare workers, as well as staff in schools and childcare centers. The bill provides for the following:
- Establishment of a process through which the state will stockpile, for use during an emergency, enough PPE to provide a 90-day supply for all healthcare workers, as well as other essential employees — including school staff, those working in detention facilities, childcare workers, and in-home support providers.
- Creation of a requirement for healthcare providers to have their own three-month supply stockpile.
- A requirement that 25% of the PPE acquired for the stockpiles must be produced in the state of California.
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Compliance highlights
District court rules on the definition of “healthcare provider”
In March, early in the public health emergency, Congress passed its first piece of legislation aimed at coronavirus relief: the Families First Coronavirus Response Act (FFCRA). The FFCRA entitles employees to a broad array of federally subsidized leave options, including paid sick time and expanded family medical leave if they become unable to work because of the pandemic. The FFCRA went into effect on April 1, 2020. In conjunction with the FFCRA, the U.S. Department of Labor (DOL) defined the term “healthcare provider” quite broadly and exempted those individuals from the provisions of the rule. Under the DOL’s definition, employees of virtually all post-acute healthcare providers qualified as healthcare providers and were therefore exempt from the leave requirements imposed by FFCRA. Soon after the regulations that included that definition were issued, the State of New York sued the DOL, claiming the federal government had exceeded its statutory authority in establishing the FFCRA rules.
On Monday, August 3, the U.S. District Court for the Southern District of New York vacated several of the FFCRA’s provisions, including the definition of “healthcare provider.” This decision could have far–reaching ramifications for post-acute providers. I reached out to attorney Robert Markette of Hall, Render, Killian, Heath & Lyman for a better understanding of what this means and the steps that providers should take. Here is what he had to say:
Robert Markette: The FFCRA’s provisions regarding Public Health Emergency Leave (PHEL) and Emergency Paid Sick Leave (EPSL) relied, in part, upon definitions already contained within the Family and Medical Leave Act (FMLA). One of those statutory definitions was the term “healthcare provider.” Healthcare provider was defined extremely narrowly under the FMLA. Although the statutory definition was narrow, it contained a provision that allowed the DOL to add to that definition by regulation — “any other person determined by the Secretary to be capable of providing health care services.” The DOL used that authority to promulgate an interim final rule that contained a broader definition of “healthcare provider” for the purposes of defining those employees who were exempt from PHEL and EPSL. The DOL’s regulation confirmed earlier guidance that the DOL had issued, which stated that a healthcare provider is anyone employed by a home health agency, healthcare center, nursing facility, nursing home, or any “similar employer or entity,” which would reasonably include hospices, among others. Thus, employees of post-acute provider organizations were not eligible for PHEL and/or EPSL. New York challenged the broad definition as exceeding the DOL’s authority and the U.S. District Court for the Southern District of New York agreed. The court’s decision vacates the DOL’s regulatory definition of a healthcare provider and several other aspects of the rule. The court questioned the breadth of the definition because — as conceded by the DOL — “an English professor, librarian or cafeteria manager at a university with a medical school would all be healthcare providers under the rule.” DOL argued that a broad definition is necessary to “maintaining a functioning healthcare system during the pandemic.” Although the court agreed that the DOL did not need to require an employee by employee assessment, the court stated that the statutory text requires at least a “minimally role-specific determination.” However, the regulation did not include such specificity, but rather, in the Court’s assessment, “hinges entirely on the identity of the employer.” As such, this resulted in a definition that was so “vastly overbroad” that it “includes employees whose roles bear no nexus whatsoever to the provision of healthcare services, except the identity of their employers.” For this reason, the court ruled the definition was overly broad and struck it down.
The DOL will certainly appeal this decision, and it would not surprise me to see this decision upheld. This raises several important, practical issues:
The first issue is whether administrative and other support employees who are not directly engaged in providing healthcare services are, in fact, necessary to enable continuous delivery of healthcare services to patients. It is my opinion that those employees are integral to the effective functioning of any healthcare organization. For example, how would a nursing facility be able to provide effective patient care without the efforts of essential janitorial staff or food service employees? The DOL argued that providing healthcare services requires more than simply hands-on healthcare workers and that a broad definition of healthcare provider served to operationalize the goal of keeping the healthcare provider working. The court noted that such an approach exceeded the statutory terms, an opinion with which I disagree, but then stated that even if they accepted that approach, the definition was still overly broad. This may mean that a definition with a more specific nexus between an employee’s job duties (on a position–by–position basis) and the provision of healthcare would survive scrutiny. It will be important to see how the court of appeals views the DOL’s effort to operationalize this benefit during the pandemic.
A second issue is — if the DOL’s authority to define the exemption is truly this narrow — this decision creates two classes of employees within any post-acute or other healthcare provider organization: those who are engaged in the direct provision of healthcare services and those who support service delivery (for example, administrators, clinical managers, revenue cycle staff, schedulers, admission coordinators, maintenance staff, housekeepers, and food service employees, etc.). This begs the question of why there should be two classes of employees with divergent statutorily defined benefits.
A third issue is the question of how this decision could potentially impact an employer’s liability for retroactive damages in cases brought later by affected employees based on the reversal of the rule.
This decision is so new that we don’t know how far-reaching it might be. There will surely be challenges from trade associations and others. Upcoming legislation could clarify congressional intent. The DOL could attempt to rewrite the regulation. Or we could see other states jumping on the bandwagon to pursue the issue further. In my view, many providers simply made the decision to provide some form of paid sick leave for employees who tested positive for, were exposed to, or had symptoms of COVID-19, because it seemed like the right thing to do. Consequently, we have no true idea of what the ultimate impact will be on post-acute providers across the nation. At present, no one can fully predict how this issue will evolve. The best action may be to consult qualified counsel for a definitive idea of how this ruling affects your organization’s specific policies and procedures concerning when, how, and to whom leave is granted. Notably, the FFCRA rules expire on December 31, 2020 unless extended. We will be keeping a watch on related developments until then.
CMS finalizes the hospice and SNF final rules
On Friday, July 31, we learned that CMS had issued the 2021 final rulemaking for SNFs and hospices. The home health proposed rule is still under consideration, with comments due at the end of August. Here are highlights from the SNF and hospice final rules for next year:
Hospice
You can read the full-text version of the hospice final rule here. Here are the main takeaways:
- The overall payment increase is estimated to be $540 million. The hospice payment update is set at 2.4% which will yield standard payments by level of care and before application of wage index adjustments as shown in the following table. Remember that hospice providers that do not submit quality information will suffer a 2% payment adjustment.
- The rule adopts the 2021 wage index and recent Office of Management and Budget (OMB) statistical areas. There will be a 5% cap on wage index decreases as a result of the change for a one-year transitional period. The cap will only be applicable in 2021. The index uses the pre-floor, pre-classified hospital wage index as the base. The labor calculations by level of care are as follows:
- The hourly rate for continuous care is used to arrive at the service intensity add-on (SIA) which are provided for up to four hours per day in the last seven days of the patient’s life by a registered nurse (RN) or social worker. The elimination of the budget neutrality factor, which was proposed, was not finalized.
- The hospice aggregate cap for 2021 is finalized at $30,683.93 which is the 2020 rate multiplied by 2.4%.
- The election statement modifications and election statement addendum were finalized as proposed last year. Hospices will be obligated to use the new election of benefits and processes for producing requested addendums no later than October 1. This will be a condition of payment. CMS has provided models for the election statement and addendum that can be found here.
CMS provided responses to comments on the modified statement and addendum.
- Hospices can develop their election statement and election statement addendum in any format that best suits their needs if the content requirements at § 418.24(b) and (c) are met. The examples were intended to assist hospices in understanding how they could format their election statement and addendum to meet the content requirements.
- Beneficiaries or their representatives must sign the addendum, as signature is the only acknowledgement of receipt and not a tacit agreement to the content of the addendum. The expectation is that the addendum would be signed when presented by the hospice staff.
- Hospices are free to develop processes to guide updates to addendums and to distinguish between updates as to additions, deletions, or other modifications.
- If the addendum is requested on the date of the patient’s election, the hospice has five days to provide the addendum for signature.
Skilled nursing facilities
You can read the full-text version of the SNF final rule here. As finalized, the rule provides for a 2.2% payment increase which would amount to $750 million. That is a little bit less than the $784 million that was first proposed. Other highlights include:
- Changes to the Patient Driven Payment Model (PDPM) structure consist of diagnosis mapping changes for case-mix groupings. CMS has added specific surgical clinical category options related to some ICD-10 codes.
- Geographic delineations provided by the Office of Management and Budget (OMB) will be adopted to classify each facility as either rural or urban and to calculate the applicable wage index. As with hospice (and consistent with the proposal for home health), CMS will provide a 5% cap on decreases brought on by wage index changes for the duration of 2021. There is no applicable cap for increases.
- Adjustments will be made to bring text of the regulations into conformity with other program policies related to the value-based purchasing (VBP) program; however, the language changes apply to the 30-day Phase One Review and Correction deadline for the baseline period quality measure quarterly report and set performance periods for future program years. There were no changes to the VBP measures, payment policies, or scoring.
Like the hospice and home health rules, this final rule is one of the most abbreviated encountered in recent years.
Home health: Face-to-face encounter changes
When the Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law, some nurse practitioners (NPs), clinical nurse specialists (CNSs), and physician assistants (PAs) were enabled to provide plans of care and home health orders. Congress gave the Department of Health and Human Services (HHS) and CMS six months to finalize regulations setting forth the changes. CMS has updated the Code of Federal Regulations twice since then on April 6, 2020 and May 8, 2020. With the May changes come some — not entirely unexpected — updates to the face-to-face (F2F) encounter rules. So far, we have no MLN Matters that set forth the changes and there have also been no changes published for Chapter 7 of the Medicare Policy Manual.
Under the May 8, 2020 language changes, the F2F encounter must be performed by one of the following:
- The certifying physician, or a physician with privileges who cared for the patient in an acute or post-acute facility from which the patient is directly admitted to home health.
- The certifying NP or CNS, or an NP or CNS working in collaboration with a physician with privileges who cared for the patient in an acute or post-acute care facility from which the patient is directly admitted to home health.
- A certified nurse midwife, working under the supervision of a physician or a physician with privileges who cared for the patient in an acute or post-acute care facility from which the patient was directly admitted to home health.
- A certifying PA or PA working under the supervision of a physician with privileges who cared for the patient in an acute or post-acute care facility from which the patient was directly admitted to home health.
None of these scenarios are new. However, the change comes with new language that specifies that the F2F encounter must be performed by the certifying physician or allowed practitioner unless the encounter is performed by a certified nurse midwife (in which case the nurse midwife cannot certify) or a physician or allowed practitioner with privileges who cared for the patient in an acute or post-acute facility from which the patient is directly admitted to home health and who is different from the certifying practitioner.
In practical terms, this means that for each community admission without a prior inpatient stay, if an allowed practitioner such as an NP, CNS, or PA performs the F2F encounter, they must also certify the patient’s eligibility and provide orders for care. Thus, there is no longer any “mixing and matching” available whereby an NP could perform the encounter and the supervising physician could provide the certification or, now with the provision enabling NPs to provide the plan of care, vice versa. I am on the lookout for changes to Chapter 7 and will report on them as they come out. Usually, there is a lag between when the regulations are written and when they are enforced, but agencies should take heed of these changes and get the staff ready to deal with them.
SNFs and point-of-care testing units
The American Health Care Association (AHCA) and the National Center for Assisted Living (NCAL) released an alert about the HHS initiative to distribute point-of-care antigen COVID-19 testing devices to nursing homes across the country. I have already reported that, in order to use these devices, the facility must have a Clinical Laboratory Improvement Amendments (CLIA) waiver. In addition, it seems that not all states allow them.
According to the alert, SNFs should take six critical steps before using the testing devices:
- Check with the state public health department or state epidemiologist to verify the existence of requirements, guidelines, or limitations that are in place for use of point-of-care antigen testing.
- Review reporting requirements contained in the CARES Act and establish a process to report all testing results.
- Develop a plan that is aligned with state and local guidelines for performance of polymerase chain reaction (PCR) follow-up tests for those who test negative using the point-of-care testing device.
- Make sure the facility has trained staff to collect specimens and use the tests properly as a CLIA compliance measure.
- Make sure the facility has a process to record test results and notify tested individuals of their results.
- Incorporate the use of the testing devices into the facility’s infection prevention and control program and facility assessment.
The full text of the alert can be found here.
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Clinical highlights
Oncology care evaluation for hospice
For the last several years, CMS has been working on an alternative payment model based on six-month periods of cancer care to determine whether performance incentives can raise quality and lower cost. The Oncology Care Model applies to patients who are undergoing chemotherapy treatment. Recently the National Association for Home Care & Hospice (NAHC) reported on CMS’s key findings from the third performance period.
- Total payments for episodes of care were not impacted even though per-episode payments were reduced for high-risk patients. Payments for low-risk patients were higher. Medicare Part A payments decreased as Part D drug payments increased such that, after including the model payments, there was a net loss for the Medicare program.
- The model is based on incentives to avoid high-cost, low-value treatments that may not benefit patients. However, there were no reductions in patients’ access to novel therapies or other treatments and no efficiency gains that produced Medicare savings. There was little evidence of value-oriented changes in therapeutic approach.
- Patients rated their care highly and clinicians thought that they had provided better patient care, but there was no impact on emergency department visits or hospitalizations overall. There were fewer hospitalizations at the end of life by using palliative care specialists with enhanced access to care, but the model does not impact the use of hospice care or the duration or timing of hospice services. There was no evidence that high–cost patients were avoided.
The full report can be found here.
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Administrative highlights
Expansion of telehealth benefits
On August 3, the CMS media relations department issued a release about the expansion of telehealth benefits and flexibilities first enabled at the start of the public health emergency. The executive order, entitled “Improving Rural and Telehealth Access,” advances CMS’s initiative to “reduce clinician burden under the Patients Over Paperwork initiative to ensure appropriate reimbursement for time spent with patients.”
During the public health emergency, CMS added 135 services that could be paid as telehealth services. The proposal is to permanently “allow some of those services” to be done by telehealth including “home visits for the evaluation and management of a patient in cases where the law allows telehealth services in the patient’s home and certain types of visits for patients with cognitive impairments.”
CMS is seeking public input on “other services” to permanently add to the telehealth list beyond the public health emergency. I have a few ideas and I’ll bet many of our readers do, as well. If you’d like to put those ideas on paper and send them to Congress and CMS, this is your opportunity.
Provider Relief Funds: Application extension
Last week, CMS released an update regarding the Provider Relief Fund that provides for an extension of the application deadline. CMS is also reopening applications for the remaining $20 billion general fund earmarked for providers that previously missed the opportunity to apply.
The application period for Phase 2 distribution to Medicaid, Medicaid managed care, and Children’s Health Insurance Program (CHIP) providers has been extended to August 28. Likewise, for those providers who were unable to secure funding under Phase 1, there will be a second opportunity to secure funding here as well, through August 28.
Under Phase 1, some providers who had a change in ownership missed out on the payments because the payments went to prior owners. Those payments should have been returned, rather than transferred to new owners, if the prior owners could not attest to caring for COVID-19 patients and meeting the other requirements for funding. HHS noted in its release that returned payments were not redirected to new owners and instead promised to give new owners a chance to apply for funding. In the words of HHS, “that opportunity is now here” starting August 10. Providers with changes in ownership will be able to submit revenue information and other documentation that proves the ownership change as a prelude to funding.
RAPs: MLN Matters 11855
Home health (HH) teams are well aware that, for the 2021 calendar year, Requests for Anticipated Payments (RAPs) will be required within five days but will not be paid. Even so, if submitted after the expiration of the five-day window, penalties in the form of payment reductions will apply. On July 31, CMS released MLN Matters 11855 to address the change with an implementation date of January 4, 2021. Here is the most important information from MLN Matters 11855 that home health agencies (HHAs) need to know:
Starting in CY 2021, the split-percentage payment would be lowered to 0% for all HHAs (newly enrolled and existing). However, all HHAs would still be required to submit a RAP at the beginning of each 30-day period of care (84 FR 60548). Since no payment will be associated with the submission of the RAP in CY 2021, HHAs are to submit the RAP when:
- The appropriate physician’s written or verbal order that sets out the services required for the initial visit has been received and documented as required at 42 Code of Federal Regulations (CFR) Sections 484.60(b) and 409.43(d); and
- The initial visit within the 60-day certification period has been made and the individual is admitted to HH care (84 FR 60548)
The information needed for submission of the RAP in CY 2021 will mirror the one-time Notice of Admission (NOA) process, also finalized in the CY 2020 HH PPS final rule with comment period, starting in CY 2022 (84 FR 60549).
In instances where the plan of care dictates multiple 30-day periods of care will be required to effectively treat the beneficiary, HHAs will be allowed to submit RAPs for both the first and second 30-day periods of care (for a 60-day certification) at the same time to help further reduce provider administrative burden (84 FR 60549).
Also for CY 2021, there will be a non-timely submission payment reduction when the HHA does not submit the RAP within 5 calendar days from the start of care date (“admission date” and “from date” on the claim will match the start of care date) for the first 30-day period of care in a 60-day certification period and within 5 calendar days of the “from date” for the second 30-day period of care in the 60-day certification period.
This reduction in payment will be equal to a 1/30th reduction to the wage and case-mix adjusted 30-day period payment amount for each day from the HH start of care date/admission date, or “from date” for subsequent 30-day periods, until the date the HHA submits the RAP. The 1/30th reduction would be to the 30-day period payment amount, including any outlier payment, that the HHA otherwise would have received absent any reduction.
For Low Utilization Payment Adjustment (LUPA) 30-day periods of care in which an HHA fails to submit a timely RAP, no LUPA per-visit payments would be made for visits that occurred on days that fall within the period of care prior to the submission of the RAP. The payment reduction cannot exceed the total payment of the claim. The payment reduction for the late submission of a RAP can be waived for exceptional circumstances as outlined in regulations at 42 CFR 484.205(i)(3).
MACs will accept the KX modifier when reported with the Health Insurance Prospective Payment System (HIPPS) code on the revenue code 0023 line of Type of Bill (TOB) 032x (other than 0322 and 0320) as an indicator that an HHA requests an exception to the late RAP penalty. The HHA should provide sufficient information in the Remarks section of its claim to allow the MAC to research the exception request. If the remarks are not sufficient, the MAC will request documentation from the HHA.
The four circumstances that may qualify the HHA for an exception to the consequences of filing the RAP more than 5 calendar days after the HH period of care From date are as follows:
- Fires, floods, earthquakes, or other unusual events that inflict extensive damage to theHHA’s ability to operate
- An event that produces a data filing problem due to a CMS or MAC systems issue that is beyond the control of the HHA
- A newly Medicare-certified HHA that is notified of that certification after the Medicare certification date, or which is awaiting its user ID from its MAC
- Other circumstances determined by the MAC or CMS to be beyond the control of the HHA. Other items of note for HHAs are:
Value codes 61 and 85 are optional for RAPs with “From” dates on and after January 1, 2021 and other Diagnosis Codes are optional for RAPs with “From” dates on and after January 1, 2021.
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In closing
Many years ago (and for many years since), my kids have often started discussions with “which do you want first — the good news or the bad news?” Lately, it seems like I should be asking readers that same question. Hopefully, we will have some good news in a not-too-distant future briefing. Still, there is plenty of good — even now — if we just look, and I am committed to sharing the good news along with the not-so-good. With that thought in mind, I offer this week’s video: a college–age superhero who is clearly taking our advice and staying home, while also having some safe fun in the meantime. Watch the video, complete with costume changes and DIY special effects, here. I liked it, and I hope you do, too.
Be safe out there and be well. Care for those you love and make new friends wherever you can. As always, I salute each and every one of you! More next week.