State’s COVID-19 1135 Waiver Request Embraces HCA Recommendations for Home Care, Hospice

New York State officials have officially submitted an 1135 waiver request to the federal government that, if granted, would allow for waivers or modification of certain federal health laws in response to the COVI9-19 outbreak, including many waivers sought by HCA for home care and hospice. 

“These waivers will give New York the flexibility to implement changes, as needed, to address any urgent health care needs of our residents,” writes New York State Health Commissioner Dr. Howard Zucker in the request to officials at the U.S. Centers for Medicare and Medicaid Services (CMS). See the request here.

Anticipating and urging this waiver request, HCA recently offered state health officials a detailed table charting out recommendations for waivers that would help support the viability and functioning of home and community-based programs amid this crisis. DOH has embraced many of these recommendations. We greatly appreciate DOH’s responsiveness to these needs and requests.

Importantly, Dr. Zucker is urging CMS to make available financing that states can draw upon “to stabilize and retain providers,” specifically mentioning financing for stabilizing and retaining the home care workforce. The letter also outlines a range of modifications or waivers to: supervision requirements, face-to-face encounters, certain procedures that can be done remotely, OASIS deadlines, and more.

HCA is also separately seeking allowance for providers to complete an abbreviated OASIS. This has been granted in the past. In a national call this afternoon, National Association for Home Care and Hospice (NAHC) President Bill Dombi advised HCA and individual providers to communicate this request directly through the 1135 waiver portal at HCA urges all home care agencies to send your request to this portal accordingly.

See the end of this alert for the specific waivers that New York has requested in its 1135 waiver. We stress that these bullets points are pending requests and, therefore, require action by CMS. What immediately follows are some other important updates since HCA’s last member communication.

Telehealth and Hospice

Since our last update to the membership, HCA has confirmed that the telehealth/telephonic permissions provided in the state’s newest Medicaid Update do, in fact, also extend to hospice, though it is not explicitly stated as such in the Update. HCA seeks to include this explicit addition of hospice in the next iteration of Medicaid Update or future guidance document.

Record-Keeping Relief Does Apply to Home Care

Earlier today, we also told you about a recent Executive Order relaxing health care record-keeping requirements. State Department of Health officials indicate 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.

Some Surveys Suspended

Also, a new CMS memo on survey activities (see here) says that standard surveys for home health, hospice and other settings will not be conducted. Only the following surveys will be prioritized: complaint/facility-reported incident surveys; targeted infection control surveys; and self-assessments.

More Details on New York State’s Proposed 1135 Waiver Requests for Home Care

  • Temporarily suspending all face-to-face person-centered planning requirements, team meetings and plan of care signature requirements for provision of community-based long term services and supports that are otherwise required to initiate or continue services every 12 weeks.
  • Temporarily suspending the two-week aide supervision requirement by a registered nurse for home health agencies.
  • Permitting certified home health agencies to conduct a face-to-face encounter … by telephone or through telehealth modalities and relaxing the timeframes for compliance.
  • Allowing Medicare Administrative Contractors to extend the auto-cancellation date of Requests for Anticipated Payment (“RAPs”) during emergencies.
  • Permitting home health agencies to perform certifications, initial assessments and determine patients’ homebound status remotely via telephone or through telehealth modalities.
  • Permitting “in-service” and “in-person” trainings to be conducted remotely or otherwise suspending this requirement.
  • Suspending the requirement that home health aides be assigned to a specific patient by a registered nurse or other appropriate skilled professional.
  • Suspending annual in-home visits by a registered nurse or other appropriate skilled professional.
  • Extending deadlines for the submission of OASIS until the end of the public health emergency.
  • Waiving the face-to-face requirements for Health Homes serving adults and children.
  • Allowing certified nurse aides, home health aides, and personal care assistants to work across all long term care settings, including home care, nursing homes and assisted living programs.

More Details on New York State’s Proposed 1135 Waiver Requests for Managed Care

  • Revising current managed care contracts to add a reconciliation to reimburse managed care organizations for expenses related to COVID-19 and the emergency declaration.
  • Suspending the requirement for actuarially sound Medicaid managed care rates applicable to calendar years 2020 and 2021, such that the state may work with plans and their actuaries to best determine how COVID-19 and its associated requirements regarding cost-sharing, telehealth, and other access requirements will impact plan financial performance.
  • Temporarily suspending the requirements for full on-site biannual operational, targeted, focused managed care surveys and readiness reviews and allowing partial completion of essential survey and readiness activities remotely.

More Details on New York State’s Proposed 1135 Waiver Requests for PACE programs

  • Allowing a place or residence to include services provided at a temporary alternative site, such as a family member’s home.
  • Extending time periods for conducting the initial assessment and reassessments and permitting the substitution of telephone and telehealth modalities.
  • Allowing interdisciplinary team assessments and reassessments, and, in response to a request for service, relaxing scope of disciplines required.

More Details on New York State’s Proposed 1135 Waiver Requests for Hospice

  • Extending deadlines for the collection and submission of the Hospice Item Set until the conclusion of the nationwide public health emergency.
  • Suspending all face-to-face visit requirements by hospice physicians and nurse practitioners in favor of permitted telephone and telehealth modalities.
  • Extending the five-day timeframe for hospice providers to submit Notices of Election and Notices of Termination/Revocation.
  • Encouraging all included hospice services to be provided by telephone and telehealth modalities, including bereavement counseling, social work, spiritual services, dietary services, and other counseling.
  • Temporarily suspending the requirement of supervision of hospice aides by a registered nurse every 14 days for hospice agencies.
  • Suspending the requirement for certified hospices to have a contract with a nursing home if a patient has moved.
  • Suspending the requirement that hospices conduct background checks on employees with direct patient contact or access to records before hiring them, such that employees can be on-boarded while the background check is processed.
  • Suspending the volunteer requirements to reflect that many hospice volunteers, who tend to be elderly themselves, are not visiting patients and respecting limitations on social interaction.
  • Limiting the provision of rehabilitative services, including physical therapy, occupational therapy, and speech therapy as these services tend to be limited in hospice care.
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