Federal News and Information

Guidance for the Expiration of the COVID-19 Public Health Emergency

The public health emergency (PHE) ended on May 11, 2023. Read the Quality, Safety, & Oversight Memorandum to learn about:

  • Expiration of emergency waivers related to minimum health and safety requirements for long-term care and acute and continuing care providers.
  • Timelines for certain regulatory requirements issued during the PHE.

Hospices, be sure to check and review the waivers!  Here is the hospice waiver information: https://www.cms.gov/files/document/hospice-cms-flexibilities-fight-covid-19.pdf. 

TNMHO thanks the National Hospice and Palliative Care Organization for the following reminders. 

  • CMS extended hospices’ ability to do recertifications via telehealth through December 31, 2024.
  • Hospices can use technology for follow-up communications with the patient, the family or their caregivers as long as the use of such technology does not replace the routine home care in-person visit.  Remember to document the technology visit in the medical record.  These types of visits are based on the patient’s needs.   Documentation: Follow-up contact should be documented in the hospice medical record similar to the way telephone calls would be documented and in accordance with the standards of practice and the hospice’s own policies and procedures.  No end date.
  • HHA/Hospice Training and Assessment of Aides – 42 CFR §418.76(h)(2) and 42 CFR §484.80(h)(1)(iii) – ARegistered nurse makes an annual onsite supervisory visit (direct observation) for each aide that provides services on behalf of the agency. 60 Days after the conclusion of the PHE on July 11, 2023.
  • HHS Office of Civil Rights (OCR) – 90 calendar day transition period to be in compliance with HIPAA rules for telehealth using non-public facing remote communications. Enforcement discretion expires onAugust 9, 2023.   Choose a telehealth technology vendor that will enter into a business associate agreement and comply with applicable requirements of the HIPAA Rules.  FAQs for Telehealth and HIPAA:   https://www.hhs.gov/sites/default/files/telehealth-faqs-508.pdf.
  • Hospice Annual Training – 42 CFR §418.100(g)(3) – CMS waived the requirement for hospices to annually assess the skills and competence of all individuals furnishing care and provide in-service training and education programs where required. Selected hospice staff must complete training and have their competency evaluated by the end of the first full quarter after the declaration of the PHE concludes.   First full quarter after the conclusion of the PHE on September 30, 2023.
  • Hospice 12-hour annual in-service training requirement for hospice aides – 42 CFR 418.76(d).CMS waived the requirement that home health agencies and hospices must assure that each aide receives 12 hours of in-service training in a 12-month period.   Begins at the end of the calendar year that the PHE ends which is December 31, 2023.
  • Waived requirement for hospices to use volunteers – 42 CFR §418.78(e) -CMS waived the requirement that hospices must use volunteers (at least 5% of total patient care hours of all paid hospice employees). It is anticipated that hospice volunteer availability and use may still be reduced.   Begins at the end of the calendar year that the PHE ends which is December 31, 2023.

More Information:

National Hospice and Palliative Care Organization (NHPCO)

NHPCO shared the following information:

Clarification on technology for hospices after the end of the PHE

CMS has answered the use of technology for hospices after the end of the public health emergency.  This answer was also shared in the National Stakeholder Office Hours on Ending the PHE on April 25, 2023.  Here is the transcript for that call, which shares the same information:  TranscriptOfficeHoursEndingPHE04252023 (cms.gov)

The regulatory flexibility at 42 CFR 418.204 is explicitly for the provision of routine home care services during the COVID-19 PHE. After the end of the COVID-19 PHE, the expectation is that routine home care hospice services will be provided in-person.  There is nothing precluding hospices from using technology to have follow-up communication with the patient and the family as long as the use of such technology does not replace an in-person visit. Additionally, such follow-up contact should be documented in the hospice medical record similar to the way telephone calls would be documented and in accordance with the standards of practice and the hospice’s own policies and procedures. We cannot enumerate all of the scenarios in which there could be such contact via technology because each patient, family, and situation is different. Decisions about when such follow-up contact using technology is made need to be based on the needs of the patient and family and the hospice’s own policies and procedures. 

Drug Enforcement Administration (DEA)

DEA, SAMHSA Extend COVID-19 Telemedicine Flexibilities for Prescribing Controlled Medications for Six Months While Considering Comments from the Public

WASHINGTON – Today, ahead of the expiration of the COVID-19 Public Health Emergency (PHE), the Drug Enforcement Administration (DEA) and the Substance Abuse and Mental Health Services Administration (SAMHSA) issued the “Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications” – a temporary rule that extends telemedicine flexibilities adopted during the COVID-19 public health emergency (PHE).

The temporary rule took effect on May 11, 2023, and extends the full set of telemedicine flexibilities adopted during the COVID-19 public health emergency for six months – through November 11, 2023. For any practitioner-patient telemedicine relationships that have been or will be established up to November 11, 2023, the full set of telemedicine flexibilities regarding prescription of controlled medications established during the COVID-19 PHE will be extended for one year – through November 11, 2024.

“The DEA received a record 38,000 comments on its proposed telemedicine rules. We take those comments seriously and are considering them carefully,” said Administrator Milgram. “We recognize the importance of telemedicine in providing Americans with access to needed medications, and we have decided to extend the current flexibilities for six months while we work to find a way forward to give Americans that access with appropriate safeguards.”

“Access to evidence-based treatment is a pillar of the HHS Overdose Prevention Strategy,” said Miriam E. Delphin-Rittmon, the HHS Assistant Secretary for Mental Health and Substance Use and the leader of SAMHSA. “We strongly support policies that promote access to effective and safe treatment for opioid use disorder, including through telemedicine platforms, and ensuring continued access to necessary controlled medications past the COVID-PHE.”

The full text of the temporary rule may be found here.

Background:

On March 1, 2023, DEA, in concert with HHS, issued notices of proposed rulemakings (NPRM) to allow for prescribing of certain controlled medications via telemedicine without an in-person medical evaluation of the patient under circumstances that are consistent with public health, safety, and effective controls against diversion. The NPRMs received over 38,000 comments from the public and DEA, in collaboration with SAMHSA, is actively reviewing input in order to develop a permanent rule.  To review the proposed rule, go to:  https://public-inspection.federalregister.gov/2023-04248.pdf.

Palmetto

Misrouted Additional Documentation Request Submissions May Result in Processing Delays

Palmetto GBA has recently seen an influx of misrouted Additional Documentation Request (ADRs) and other documentation from providers. Providers are sending documents without coversheets, ADR letters, and/or sending them to the incorrect department. Sending your documentation this way will delay processing.

Before responding to ADRs, please carefully review your letter. Information on how and where to return the requested documentation is contained in your ADR letter.

Return your documents using one of the methods below. Use the coversheet provided. Do not submit by more than one method as a duplicate response will delay the review process.

  • Submit your ADR response via esMD (Electronic Submission of Medical Documentation)
  • Upload your ADR response via eServices, our free, self-service portal located on the Palmetto GBA website. eServices allows you to upload your ADR response electronically, eliminating the need to fax or mail documents. This is the preferred method.
  • To participate, you must have an EDI agreement on file with Medicare. When you upload a document, you will receive a confirmation message when the form is submitted and an additional message containing a Document Control Number (DCN). You can use the DCN to look up form processing status and view your submitted forms.
  • Return your documents to the Palmetto GBA medical review mailing address or fax number located in the body of the ADR letter.

Cost Reports for Period Ending December 31, 2022, Due May 31, 2023

Palmetto GBA reminds you that cost reports for the period ending December 31, 2022, are due May 31, 2023.Please file timely or early to prevent being placed on payment hold.  Note: When a cost report is filed late, the provider will be placed on payment hold. The payment hold will be release after the cost report has been received, reviewed and accepted, which can take up to 30 days.  A cost report may be filed electronically through the Medicare Cost Report E-Filing (MCREF) system.

Texas News and Information

Health and Human Services Commission (HHSC)

CMS Issues Guidance for the Expiration of the COVID-19 Public Health Emergency

The Centers for Medicare and Medicaid Services published its memorandum, QSO-23-13-ALL (PDF), providing guidance on the termination of the Social Security Act Section 1135 emergency waivers. Those waivers allowed certain requirements to be waived during the Public Health Emergency (PHE), including:

  • Requirements that each home health and hospice aide receive 12 hours of in-service training in a 12-month period.
  • The requirement that home health agencies perform Medicare-covered initial assessments and determine patients’ homebound status in person.
  • The requirement for home health agencies that a nurse conduct an onsite visit every two weeks
  • The requirement that comprehensive assessments be done within specified timeframes for hospice patients.
  • The requirement that hospice agencies provide certain non-core hospice services for physical therapy, occupational therapy and speech language pathology.
  • The requirement that home health and hospice providers perform annual full-scale emergency preparedness exercises.

These and other Social Security Act Section 1135 emergency waivers for health care providers will terminate with the end of the COVID-19 PHE on May 11, 2023.

Save the Date: 2023 Quality in Long-Term Care Conference

Texas Health and Human Services Commission, along with The University of Texas Steve Hicks School of Social Work, will host the 2023 Quality in Long-Term Care Conference in person at the Renaissance Hotel in Austin on Aug. 22–23.

This year’s theme is, “Making a Commitment to Person-Centered Long-Term Care.”

The conference offers presentations from nationally and internationally recognized experts. Topics include:

  • Caring for people with dementia
  • Infection prevention and control
  • Long COVID considerations in long-term care
  • Current health care trends
  • Cutting-edge advances in long-term care, aging and disability services.

The conference is free to attend, and continuing education credit will be available for various health care disciplines. Online registration opens on Wednesday, June 7.  Email UT Steve Hicks School of Social Work for more information about this event.

Disclaimer:  The Texas and New Mexico Hospice Organization publishes the Regulatory Update as an information only item.  TNMHO has no attorneys nor does it represent the state and federal governments.  All legal questions or concerns should be directed to your attorney or the governments involved.