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Member News Bulletin September 18, 2024

Biden Administration announces end to federal PHE; How this impacts LTC

On Monday, Jan. 30, 2023, the Biden Administration announced its plan to end the federal public health emergency (PHE). This administration guidance meets the Administration’s promise of 60 days’ notice of the end of the PHE. Based on the guidance, the PHE will end on May 11, 2023. The end of the PHE also marks the end of Section 1135 National Blanket Waiver.

Important points to consider in skilled nursing facilities (SNFs)

  • The two substantive SNF waiver provisions left in Section 1135 are the Medicare fee-for-service (FFS) Three-Day Stay and Spell of Illness waivers. These waivers technically fall under Section 1812(f) but are tied to the Section 1135 waiver. As of May 11, SNFs may no longer use the Three-Day Stay Waiver or the Spell of Illness waiver. Note that in the CMS COVID-19 Billing FAQs, clarification is provided regarding a Medicare A beneficiary’s stay, which began under waiver conditions prior to the wavier ending, would be eligible to continue their stay as long as continued coverage criteria are met. In terms of Medicare Advantage plans, PHE waiver provisions were rolled back in 2022.
  • The end of the PHE also ends Medicaid flexibilities provided to states, including expedited State Plan Amendment review, and will impact any Medicaid rate add-ons attached to the national PHE. Of note, the Medicaid Federal Medical Assistance Percentage (FMAP) increase of 6.2% is no longer attached to the PHE and is unaffected by the May 11 date. The Consolidated Appropriations Act of 2023 delinked the enhanced FMAP from the PHE and set a year-long phase down schedule for the FMAP noted in the table below.

  • Regarding the waiver for telehealth, the Consolidated Appropriations Act of 2023 (CAA 2023), enacted in late December 2022, extended telehealth flexibilities for practitioners, including therapists, through the end of 2024. Additionally, the CAA 2023 made mental health telehealth services a permanent benefit. Providers should be aware that physician visits required under F712 in Appendix PP (page 456) are required to be in-person.

Important points to consider in home health (HH) agencies

The following waived items will end on May 11:

  • Requests for Anticipated Payment (RAPs). CMS is allowing Medicare Administrative Contractors (MACs) to extend the auto-cancellation date of RAPs during emergencies.
  • Reporting. CMS is providing relief to HHAs on the timeframes related to OASIS transmission through the following actions below:
    • Extending the five-day completion requirement for the comprehensive assessment to 30 days.
    • Waiving the 30-day OASIS submission requirement. Delayed submission is permitted during the PHE.
  • Initial assessments. CMS is waiving the requirements at 42 CFR §484.55(a) to allow HH agencies to perform Medicare-covered initial assessments and determine patients’ homebound status remotely or by record review. This will allow patients to be cared for in the best environment for them while supporting infection control and reducing impact on acute care and long-term care facilities. This will allow for maximizing coverage by already scarce physician, and advanced practice clinicians, and allow those clinicians to focus on caring for patients with the greatest acuity.
  • On-site visits for HH agency aide supervision. CMS is waiving the requirements at 42 CFR §484.80(h), which require a nurse to conduct an on-site visit every two weeks. This would include waiving the requirements for a nurse or other professional to conduct an on-site visit every two weeks to evaluate if aides are providing care consistent with the care plan, as this may not be physically possible for a period of time. This waiver is also temporarily suspending the two-week aide supervision by a registered nurse for HH agencies requirement at §484.80(h)(1), but virtual supervision is encouraged during the period of the waiver.
  • Detailed information sharing for discharge planning for HH agencies. CMS is waiving the requirements of 42 CFR §484.58(a) to provide detailed information regarding discharge planning, to patients and their caregivers, or the patient’s representative in selecting a post-acute care provider by using and sharing data that includes, but is not limited to, another HH agency, SNF, inpatient rehabilitation facility (IRF) and long-term care hospital (LTCH) quality measures and resource use measures.
    • This temporary waiver provides facilities the ability to expedite discharge and movement of residents among care settings. CMS is maintaining all other discharge planning requirements.
  • Clinical records: In accordance with section 1135(b)(5) of the Act, CMS extended the deadline for completion of the requirement at 42 CFR §484.110(e), which requires HHAs to provide a patient a copy of their medical record at no cost during the next visit or within four business days (when requested by the patient). Specifically, CMS has allowed HHAs ten business days to provide a patient’s clinical record, instead of four.

The following two items have some extension beyond May 11:

  • 12-hour annual in-service training requirement for HH aides. CMS is modifying the requirement at 42 CFR §484.80(d) that HH agencies must assure that each HH aide receives 12 hours of in-service training in a 12-month period. In accordance with section 1135(b)(5) of the Act, CMS is postponing the deadline for completing this requirement throughout the COVID-19 PHE until the end of the first full quarter after the declaration of the PHE concludes. This will allow aides and the registered nurses (RNs) who teach in-service training to spend more time delivering direct patient care and additional time for staff to complete this requirement.
  • Training and assessment of aides: CMS has been waiving the requirement at 42 CFR §418.76(h)(2) for hospice and 42 CFR §484.80(h)(1)(iii) for HH agencies, which require a registered nurse, or in the case of a HH agency, a registered nurse or other appropriate skilled professional (physical therapist/occupational therapist, speech language pathologist) to make an annual on-site supervisory visit (direct observation) for each aide that provides services on behalf of the agency. In accordance with section 1135(b)(5) of the Act, CMS is postponing completion of these visits. All postponed on-site assessments must be completed by these professionals no later than 60 days after the expiration of the PHE (July 10). CMS will end this waiver at the conclusion of the PHE.

As a reminder, the final CY 2022 Home Health Prospective Payment System (HH PPS) rule HH conditions of participation in Section 484.55 now allows occupational therapists to conduct the initial visit and complete the comprehensive assessment under the Medicare Program:

  • When occupational therapy is on the HH plan of care, with either physical therapy or speech therapy, and;
  • When skilled nursing services are not initially on the plan of care.

Some PHE related matters remain unclear at this time, including the continuation of COVID-19 testing supply shipments, cost coverage for COVID-19 vaccination and treatments and some COVID-19 specific reporting requirements. As more information becomes available, IHCA will keep members informed of changes.

For questions regarding SNFs, contact Brenda Irlbeck, VP, Quality Improvement and Regulatory Affairs, at 515-978-2204. For questions regarding HH agencies, contact Julie Adair, VP, Digital Education and Credentialing, at 515-978-2204.­­

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