Important note: when examining the resource links below, please be mindful of dates wherever labelled to ensure the most recent guidance or update.

New: PPE Suppliers

The Nassau County Department of Health Office of Emergency Management has shared a list of vendors that may have personal protective equipment (PPE) available for purchase during the pandemic. “Please note that while we hope to assist your agency in locating reliable sources for PPE during this difficult time, currently the supply chain for these products is strained beyond capacity, and this list is provided as a courtesy and for informational purposes only and not a guarantee that the products are available,” Nassau County notes. “In addition, this list does not constitute or imply Nassau County’s recommendation or endorsement of these vendors. Nassau County is not responsible if a vendor defaults, fails to perform, or if you are not satisfied with their services in any way.”

Current Regulatory Waivers, Changes (Updated 05/11/20)

Below is a summary of current regulatory waivers. Please note that while some may be issued at the federal level, this does not mean that the state has necessarily also recognized the same changes in parallel fashion. Please also note that waivers may have differing end dates and others involve the postponement of requirements until certain defined dates in relation to the emergency declaration period. Providers should not rely strictly on the summaries below and should always read the source documents linked accordingly for further details, contingencies and context.

Federal

Medicare Home Health Telehealth Services: On March 30, CMS issued a very incremental allowance for home telehealth. Congress, in the recently enacted CARES Act for coronavirus relief, called upon federal officials to “encourage” telehealth. CMS has responded in a limited fashion, determining that the law does not permit CMS to pay home health agencies for telehealth. (The state Medicaid program, meanwhile, has already provided much more flexibility in this regard for Medicaid services, as reported below.) CMS is ostensibly allowing expanded telehealth as a means to reduce costs, but not as a service billable under Medicare.

Medicare “Homebound” Requirement: On March 30, CMS determined that an individual meets the requirement for “homebound” status if needing skilled services and if deemed by a physician at high risk of contracting COVID-19 due to a compromised health condition.

Medicare Home Health Conditions of Participation (CoPs) and NPP Certifications: CMS reported on March 30 that CoPs related to onsite home health aide supervision and in-person initial patient assessments can now be done remotely. CMS has also implemented language from the CARES Act permitting non-physician practitioners (nurse practitioners, physician assistants, and certified nurse specialists) to order and refer for Medicare home health services. This is understood to now be a permanent allowance (not just for the emergency period) and it is retroactive to March 1, 2020. (See a summary document from the National Association for Home Care and Hospice here.) HCA stresses that we are still awaiting confirmation from state officials whether the state is also recognizing NPP certifications for the same disciplines as defined by CMS.

Medicare OASIS/RAPs: The federal disaster declaration provides relief to home health agencies on the timeframes related to OASIS Transmission. It allows Medicare Administrative Contractors to extend the auto-cancellation date of Requests for Anticipated Payment (RAPs) during emergencies (see the CMS fact sheet here).

Hospice Telehealth: CMS reported on March 30 that it is allowing use of telehealth for the physician face-to-face encounter requirement in hospice and is permitting telehealth billing by hospice physicians.

Hospice Volunteers, Assessments, Non-Core Services, Supervision: Per the CARES Act, CMS announced on March 30 that it is waiving: the requirement for hospices to use volunteers; timeframes for updating comprehensive patient assessments; non-core services requirements; and the 14-day home health aide in-person supervisory requirements, consistent with home health waivers. It has also suspended all medical review audits other than in cases of fraud investigation.

Federal Quality Reporting Requirements: On March 22, CMS announced some additional quality reporting program relief for providers. Home health data from January 1, 2020 through June 30, 2020 does not need to be submitted to CMS for purposes of complying with quality reporting program requirements. In addition, Home Health and Hospice Consumer Assessment of Healthcare Providers and Systems (CAHPS) survey data from January 1, 2020 through September 30, 2020 does not need to be submitted to CMS.

Aide In-Service, On-site Supervisory Visits, QAPI and Furnishing Medical Records to Patients: On April 30, CMS announced several blanket waivers including postponement of the 12-hour annual in-service training requirement for home health aides; waivers of certain discharge planning information requirements that include the coordination of information about post-acute care receiving organizations; extended deadlines for agencies to provide patients with copies of their medical records; waiving the home health and hospice requirements related to annual onsite supervisory visits; a narrower scope of Quality Assurance and Performance Improvement (QAPI) program requirements in home care and hospice; as well as postponing the requirement that hospices annually assess the skills and competence of all individuals furnishing care and provide in-service training and education programs.

State

Medicaid Telehealth Use, Billing: A special edition of the state’s Medicaid Update on March 21 and updated on March 23 (see here) includes a guidance broadly expanding the use of telehealth, telephonic services, and other communications methods by Medicaid providers during the COVID-19 state of emergency. This guidance was followed up with an extensive frequently asked questions document issued on March 31 (see here). Effective for dates of service after March 1, and for the duration of the state of emergency, “New York State Medicaid will reimburse telephonic assessment, monitoring, and evaluation and management services provided to members in cases where face-to-face visits may not be recommended and it is appropriate for the member to be evaluated and managed by telephone.” HCA has confirmed with DOH officials that the guidance applies to Article 36 home care providers and the March 23 version of the guidance provides more specific home care service and billing codes. It adds: “All telephonic encounters documented as appropriate by the provider would be considered medically necessary for payment purposes in Medicaid fee for service or Medicaid Managed Care.”

RN Supervision Visits Under Medicaid Personal Care: Governor’s Executive Order No. 202 “permit(s) nursing supervision visits for personal care services provided to individuals affected by the disaster emergency be made as soon as practicable” (emphasis added) in place of requirements for such visits to be made “at least every 90 days.”

Employee Health Assessments, Performance Evaluations, Aide Training: In an April 10 Dear Administrator Letter (see here) to CHHAs, LHCSAs, LTHHCPs, and Hospice programs, the state Department of Health has suspended or changed the following regulations.

The annual health assessment has been temporarily suspended for all employees.

Annual performance evaluations of current employees by home care agencies and programs are temporarily suspended.

The time in which a home care aide training program must be completed is extended to 90 days (HCA asked for 120 days).

The Alternate Competency Demonstration look-back period is expanded to 3 years, from 2 years, and the prospective employee must have 3 months of experience, rather than 6 months.

The time period is extended by which home health aide training programs must submit an intent to submit a class schedule to regional offices (April 1, 2020 to July 1, 2020).

New employees may have health assessments completed by telehealth or by an RN. New employees must follow guidelines in place for all staff, including daily symptom screenings and at least daily temperature checks.

All CHHAs, LTHHCPs, AIDS home care programs and LHCSAs serving individuals affected by the COVID-19 public health emergency may conduct in-home and in-person supervision through indirect means, including by telephone or video communication, as soon as is practicable after the initial visit.

Supervised Practical Training: In an April 10 health advisory (see here), the state Department of Health waives the requirement that 8 hours of the 16 hours of supervised practical training must be provided in a patient care setting.

Opening Cases: All CHHA, LTHHCP, AIDS home care and LHCSA home care cases may be opened using remote technology (see the April 10 Dear Administrator Letter from the state Department of Health).

Medicaid Program Initial Service Visit, Home Care Registry, Supervision Visits, Fair Hearings: Governor’s Executive Order No. 202.5:

To the extent necessary to permit certified home health agencies, long term home health care programs, AIDS home care programs, and licensed home care services agencies serving individuals affected by the disaster emergency to conduct in-home supervision of home health aides and personal care aides as soon as practicable after the initial service visit, or to permit in-person and in-home supervision to be conducted through indirect means, including by telephone or video communication.

To the extent necessary to permit initial patient visits for certified home health agencies, long term home health care programs and AIDS home care programs serving individuals affected by the disaster emergency to be made within 48 hours of receipt and acceptance of a community referral or return home from institutional placement.

To extend the time in which home care services entities must submit information to the Home Care Worker Registry. This extension was discontinued in a later Executive Order, effective May 8.

To the extent necessary to allow or require appearance by any parties to a fair hearing by written, telephonic, video or other electronic means.

Record-keeping: Executive Order No. 202.10 provides relief from record-keeping requirements. It mentions “relief to the extent necessary for health care providers” … “including, but not limited to, requirements to maintain medical records that accurately reflect the evaluation and treatment of patients, or requirements to assign diagnostic codes or to create or maintain other records for billing purposes,” granting “absolute immunity from liability for any failure to comply with any recordkeeping requirement” if done so in good faith except in certain circumstances. This extension was discontinued in a later Executive Order, effective May 8.

HCA has confirmed the applicability of this provision with state Department of Health officials who state that the reference does cover home care providers; however, the licensed home care professional is only protected from liability if they are not maintaining accurate patient records due to their COVID-19 response (e.g., having a patient surge due to a COVID-19 outbreak). Licensed home care professionals could not use this waiver provision generally to avoid keeping accurate patient medical records, regardless of the COVID-19 connection.

RN Orders for COVID-19 Specimen Samples: Executive Order No. 202.10 “permits registered nurses to order the collection of throat or nasopharyngeal swab specimens from individuals suspected of being infected by COVID-19, for purposes of testing.”

EISEP: Governor’s Executive Order No. 202.1 suspends regulations related to assessments, reassessments and duration of care plan for home delivered meals and/or Expanded In-Home Services for the Elderly Program (EISEP). Governor’s Executive Order No. 202.18 expands eligibility for home delivered nutrition programs to anyone over the age of 60, waives certain dietary requirements and the need for menus to be approved by a registered dietician, and relaxes the minimum number of meals per week that are required to be served; Removes the requirement for an in-home visit within five days of first services provided; allows for new clients to receive services without paying any cost sharing, until an assessment can be conducted and a cost sharing amount determined; and allows contact to be conducted by phone or otherwise remotely.

Out-of-State Practitioners: Governor’s Executive Order No. 202.18 allows physicians, nurses, physician assistants, radiologic techs, and clinical nurse specialists, licensed social workers, licensed and in good standing in any other state or province in Canada, to practice in New York.

Medicaid Transportation Services: According to a March 21 letter, transportation managers shall: waive the 72-hour rule for enrollees requesting urgent trips for COVID-19 related symptoms; prohibit multi-loading vehicles, including group rides. Multi-loading shall only be approved in situations where no single loading alternative exists and must be specially approved by the manager/broker.

State/Federal/Other

Medicare and Medicaid Face-to-Face Requirements: For clarification, below are the Medicare and Medicaid face-to-face (F2F) requirements including the extent to which telehealth or telephony are permissible or not.

Medicare: The physician F2F encounter can be performed via telehealth. Under the expansion of the telehealth waiver, beneficiaries can use telehealth modalities with their doctors and practitioners from home for the face-to-face encounter to qualify for Medicare hospice and home health care services. As of April 7, 2020,, the telehealth mechanism must be two-way live video. The federal government has relaxed HIPAA enforcement so that commonly available platforms like Skype, Facetime and Zoom may be used for telehealth purposes.

Medicaid: The physician F2F encounter can be performed via telehealth including telephonic means. Medicaid Update, Volume 36 (on March 23, 2020) indicated that provider must be enrolled in the New York State Medicaid program. Physicians, nurse practitioners can complete the necessary F2F documentation

Home Care, Hospice and Managed Care Guidance or Resources

COVID-19 Specimen Collection and Testing

Guidance on Face Masks

State and City Departments of Health

Other Government Agencies

Centers for Disease Control And Prevention (CDC)

World Health Organization

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