CARES Act Provides Flexibility to Home Health Agencies and Hospice Providers

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act.  While much focus has been given to the economic stimulus provisions of the CARES Act, the Act also provides certain flexibility to home health agencies and hospice providers. 

Permanent Expansion of Certifying Professionals. Under current law, only physicians are permitted to certify the need for home health services. The Act expands the categories of professionals who can certify a patient’s need for home health services to include nurse practitioners, clinical nurse specialists, and physician's assistants. This change—which applies to patients of both Medicare and Medicaid—will provide home health agencies and their patients with significant additional flexibility.  This flexibility will be particularly important to address physician shortages in rural areas.  The Act directs the Secretary of Health and Human Services to enact regulations to implement the change no later than six months following enactment of the Act. It is important to note that this is a permanent change to the law—it will not expire at the conclusion of the public health emergency resulting from the 2019 Novel Coronavirus. 

Temporary Flexibility. The CARES Act also includes several temporary provisions to make it easier for patients to receive home health and hospice services during the current public health emergency, including the following:

• The Act directs the Secretary of Health and Human Services to “consider ways to encourage the use of telecommunications systems” by providers of home health services during the public health emergency. Telecommunication systems could include remote patient monitoring and other systems that are consistent with a patient’s plan of care.  The Act directs the Secretary to issue clarifying guidance and to conduct outreach to implement this requirement.
• Under current law, a hospice physician or nurse practitioner must conduct a face-to-face encounter with a hospice patient to determine the patient’s continued eligibility for hospice care. The CARES Act will allow these face-to-face encounters to be performed through telehealth throughout the duration of the current public health emergency.
• Under current law, an individual receiving home dialysis must receive a face-to-face clinical assessment. Current law specifically prohibits the use of telehealth for purposes of performing the face-to-face clinical assessment.  The CARES Act authorizes the Secretary of Health and Human Services to waive this prohibition, which would permit the use of telehealth for the face-to-face clinical assessment.  

Finally, it is important to note that CMS and the Iowa Department of Inspections and Appeals have flexibility to waive certain requirements under their rules during a public health emergency, when doing so would help providers meet the ongoing needs of their patients. While not all provisions of law can be waived, the law does provide significant flexibility. If you have any questions regarding whether a specific provision can be waived during the current public health emergency, please contact any member of the BrownWinick Health Law Practice Group.