Top Home Health, Home Care Legal Concerns for 2021

Wage-and-hour litigation, confusing state-level regulations and an increase in federal audits were among the biggest legal trends of 2020. While many of these issues will remain in the year ahead, 2021 will also bring several more legal hurdles for home-based care providers.

The decision of whether to mandate COVID-19 vaccinations for home health and home care workers is toward the top of that list. Other emerging legal battles that will shape 2021 include telehealth dos and don’ts.

To keep in-home care operators in the legal loop, Home Health Care News reached out to four attorneys who specialize in the field. The group of legal experts offered their take on the biggest focus areas of 2021.

Their responses are below, edited for length and clarity.

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An enormous challenge home care and home health providers face is remaining compliant with the myriad of federal, state, and local laws and regulations that continue to change at a record pace. It is critically important that providers have a comprehensive legislative tracking process and adopt proactive compliance strategies to both identify changes and modify their policies and procedures to conform appropriately. Providers that operate in multiple jurisdictions or states are especially confronted with this challenge.

One of the most straightforward examples is ensuring compliance with the payment of varying minimum-wage rates. The federal minimum wage is currently $7.25 per hour. However, the Biden administration will likely seek a $15 federal minimum wage. Many states already require a higher minimum wage, such as Colorado’s $12.32 requirement. Some states — such as California — have local jurisdictions, each with its own unique minimum wage requirements that often depend on the number of employees within a given business.

Another major trend to watch out for is the enactment of Domestic Workers Bills of Rights (DWBRs) across the nation. These laws provide specific requirements that employers within a given jurisdiction must adhere to with regard to minimum wages, overtime wages, discrimination and harassment complaints, training requirements and much more. Last year, Philadelphia became the 10th jurisdiction to enact employment legislation to protect domestic workers — and some may recall the federal DWBR legislation sponsored by Kamala Harris in 2019.

We can anticipate a revival of that effort under the Biden administration.

Angelo Spinola, co-chair of the home health and home care industry group at Littler Mendelson

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If I had to pick one legal issue to watch in 2021, it would be health care payment and coverage reform. While the Affordable Care Act was enacted over a decade ago, its wake continues to make waves in the health care sector. Legal challenges remain unresolved in the courts. Twelve states have not expanded Medicaid. Over 10% of Americans remain uninsured. Federal agencies continue to use their broad regulatory authority to push providers toward value-based reimbursement.

With the inauguration of Joe Biden, I anticipate seeing significant efforts to build on the ACA and, potentially, legislative attempts to expand coverage. While Democrats will control the White House and both chambers of Congress, their razor-thin margin in the Senate makes “Medicare for All” proposals unlikely.

Although the regulatory proposals have been overshadowed by recent events, the Trump administration has proposed or finalized rules that could have a significant impact on provider payment and oversight. A significant theme in 2021 will be the extent to which the Biden administration alters or replaces those rulemaking efforts

As we emerge from the pandemic — hopefully soon — federal and state governments and private payers will examine the many regulatory waivers and flexibilities granted during the public health emergency. Which ones will stay? Which will go? Only time will tell.

— Matt Wolfe, partner at Parker Poe

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2020 shined a spotlight on the importance of home health care, as in-person doctor visits were no longer accessible to seniors and facility-based providers dealt with depleted resources and fewer available beds. As access to services dwindled and remote care began to flourish, a massive inequity affecting home health care was revealed.

Remote care services are frequently not reimbursable in a home health setting — and any home health visits delivered via telehealth do not count toward LUPA thresholds during an episode of care. That policy essentially punishes these home health providers that use telehealth to supplement in-person care. In an environment swiftly moving toward value-based outcomes and technology-driven efficiencies, this disparity became evident to policymakers, who are now working toward a remedy.

For those companies who rely on fee-for-service income, the motivation to transform businesses using new technologies will continue to lag unless we figure out a way to increase financial incentives to enable such transformation. We should expect to see innovative home health companies form or participate in value-based enterprises under the newly published Anti-Kickback Statute safe harbors as a way to compensate for the current lack of reimbursement for virtual services.

— Rebecca Gwilt, partner at Nixon Gwilt Law

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The first half of 2021 will keep providers occupied with getting their employees and patients vaccinated. The pandemic has caused, in many respects, the reduction of home care hours as patients are concerned about aides bringing COVID-19 into the home.

The vaccine offers providers the opportunity to reassure their patients that the aides are not bringing the virus into the home. In turn, it’s a way to increase hours. Therefore, we anticipate that providers will launch wide-scale efforts to get their workers vaccinated. This will involve helping the caregivers understand the importance of being vaccinated and, in some cases, conditioning future and continued employment on the employees’ agreement to become vaccinated.

— Emina Poricanin, managing attorney of Poricanin Law

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House Bill Looks to Keep Medicare Sequestration ‘Holiday’ in Place for Home Health Agencies, Others

U.S. Representatives Brad Schneider (D-Ill.) and David McKinley (R-W.Va.) introduced the Medicare Sequester COVID Moratorium Act last week.

If passed, the bill would extend the temporary suspension of Medicare sequestration payment reductions, giving home health agencies and other providers more financial flexibility headed into an uncertain 2021.

Since 2014, the U.S. Centers for Medicare & Medicaid Services (CMS) has been cutting Medicare reimbursements to home health providers by 2%, as directly by Congress. Under the law, payments that exceed Medicare’s cap must be returned to CMS.

As part of a larger COVID-19 relief effort, home health providers received a reprieve from sequestration when the CARES Act passed in March. CMS suspended the 2% Medicare sequestration, effectively boosting reimbursement rates during a period some health care experts referred to as a “holiday.”

The provision is soon set to expire at the end of December, but the newly introduced legislation would extend the temporary suspension of Medicare sequestration to an undetermined date.

The aim of the bill is to help providers focus on responding to the COVID-19 emergency instead of financial challenges that may arise during this time.

“At a time when health care workers are on the front lines battling the COVID-19 pandemic, Congress should be doing everything within their power to ease their burden,” Rep. McKinley said in a statement. “America’s health care providers continue to be stretched thin and face serious financial challenges as a result of the economic and public health crisis.”

For many home health agencies, CMS pressing pause on Medicare sequestration payment reductions has ensured that they have the resources to provide care during the public health emergency while staying afloat financially.

If the legislation doesn’t pass, this could mean trouble for providers, Matt Wolfe, a partner at law firm Parker Poe, told Home Health Care News.

“The CARES Act’s temporary suspension of Medicare sequestration payment reductions has allowed home health providers to purchase PPE, train staff, and otherwise invest in keeping patients and staff safe during the pandemic,” Wolfe said. “If this bill does not become law and the sequestration is reinstated, it will be a devastating blow for home health providers at a terrible time.”

With this in mind, the bill has also drawn support from organizations such as the Partnership for Quality Home Healthcare (PQHH).

“The Partnership, alongside the broader home health community and every other provider sector, is supportive of extending the suspension of the 2% sequestration cut for Medicare providers,” Joanne Cunningham, executive director of PQHH, told HHCN. “With COVID cases on the rise, the entire health care system continues to be challenged.”

Suspending the 2% reduction beyond 2020 is “a prudent step” that will provide much-needed support to the entire Medicare provider community and patients, she added.

PQHH is a home health care advocacy organization based in Washington, D.C.

Additionally, the bill has garnered support from organizations including the American Association for Homecare, LeadingAge, the Visiting Nurse Associations of America and the National Association for Home Care & Hospice (NAHC).

“We see an extension of the sequestration moratorium as a high priority for all Medicare providers in order to preserve our very fragile health care system,” NAHC President William A. Dombi told HHCN. “Reducing payments to health care providers, already stressed to a breaking point during the height of the pandemic, will add unnecessary risks to care.”

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CMS’s Stark Law Changes Could Mean More Value-Based Business for Home Health Operators

In an effort to boost value-based care, the U.S. Centers for Medicare & Medicaid Services (CMS) recently announced that it has finalized changes to the Physician Self-Referral Law — often referred to as the Stark Law.

For home health providers, the changes could mean more opportunities for value-based care arrangements moving forward, experts believe.

Broadly, the Stark Law was originally intended to prevent physicians from self-dealing and making compromised medical decisions based on financial incentives.

Under previous rules and regulations, physicians were prohibited from making referrals for “certain designated health services payable by Medicare to an entity with which he or she has a financial relationship.” In some instances, this meant home health providers.

In CMS’s statement announcing the recent change, the agency called the law an “outdated” regulation that “burdened” health care providers during the U.S. health care system’s shift toward quality.

“These reforms under the Stark Law and Anti-Kickback Statutes are historic reforms and come as part of the regulatory sprint to coordinated care that I led over the past few years,” said U.S. Department of Health and Human Services (HHS) Deputy Secretary Eric Hargan. “Too often, ‘sorry, Stark’ or ‘can’t do it, AKS’ have been watchwords in American health care.”

In value-based care arrangements, physicians and other care providers typically form interdisciplinary teams to manage patients as their needs change, sometimes sharing upside and downside risk. Discouraging a physician from referring within that internal team makes little sense.

There has long been an effort to make changes to the law, Matt Wolfe, a partner at law firm Parker Poe, told Home Health Care News.

“Since the enactment of the statute, there have been a whole host of different regulatory efforts to better define and narrow the scope of the law, recognizing that there are a number of times where it would be appropriate for a physician to refer a patient to designated health care services,” Poe said.

Other legal experts echoed those sentiments.

The update to the Stark Law now creates exceptions that make room for innovation and value-based compensation structures, according to Danielle Sloane, a health care attorney at Bass, Berry & Sims.

“For home health agencies that want to participate in value-based arrangements, I think it provides more avenues to work together with hospitals and physician groups — and to share in the savings from any efficiencies,” Sloane said. “[It provides more avenues] to share in the bonuses from a quality perspective.”

Additionally, CMS provided guidance on requirements of the exceptions to the Stark Law and technical compliance requirements.

Still, Sloane warned that despite the flexibility the changes provide, it’s important for home health providers to continue to devote time and energy to compliance. First and foremost, providers must ensure they have appropriate arrangements with physicians.

“There are certainly some flexibilities here for those ‘oops’ scenarios, but I don’t think it changes best practices of making sure you have a contract in place,” she said.

The overall impact of the update will depend on things ranging from existing arrangements with physician practices, health systems and payers, but most providers will be impacted in some way, according to Wolfe.

Similar to Sloane, Wolfe stressed that providers should take inventory of their existing contractual arrangements.

“Even though one of the goals of this regulatory action is to reduce regulatory burdens, I think, in the short run, providers are going to have to put some resources into making sure that their current arrangements comply with the new iteration of the laws and regulations,” he said.

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HHS Loosens Provider Relief Fund Restrictions, Allows Agencies to Cover Lost Revenue

In response to ongoing opposition from both lawmakers and providers, the Department of Health and Human Services (HHS) recently announced it has made changes to its rules surrounding COVID-19 relief funding.

The department’s amended rules now allow providers to use Provider Relief Fund (PRF) money toward lost revenue that’s potentially unrelated to COVID-19.

“After reimbursing health care-related expenses attributable to coronavirus that were unreimbursed by other sources, providers may use remaining PRF funds to cover any lost revenue, measured as a negative change in year-over-year actual revenue from patient care related sources,” HHS said in a recent statement.

Before the recent update, HHS placed a stricter stipulation on what would eventually amount to $175 billion of funds provided through the CARES Act stimulus package. This was to prevent providers from becoming more profitable in 2020 than 2019 by improperly using federal funds for financial gain instead of an operational lifeline.

While the PRF program was “well-intentioned,” it has been mired with challenges associated with conflicting and unclear guidance along the way, Matt Wolfe, a partner at law firm Parker Poe, told Home Health Care News.

“In September, when HHS put out guidance that seemed to limit or restrict these provider relief funds, there was understandably a significant amount of pushback by providers and members of Congress,” Wolfe said. “When [HHS] created this program under the CARES Act, they were really trying to make sure that health care providers of all stripes were able to respond to the public health emergency and keep their doors open.”

Since its formation, the PRF has accomplished its goal of keeping home health agencies and other afloat, Wolfe believes. Still, over the past couple of months, there had been growing concern that HHS was becoming more restrictive than what Congress originally intended.

“You’re putting providers in this difficult situation of saying, ‘Well, I needed this money because it’s what allowed me to make it through this unprecedented challenge,’” he said. “At the same time, they’re wondering, ‘If I retain the funds and don’t pay them back, am I going to have some potentially large obligation down the road?’”

HHS’s amendment to the reporting requirements is key because it clarifies whether providers should hang on to the funds.

While certainly an improvement for home health agencies, and “a step in the right direction,” there’s still work that needs to be done to accomplish the Congressional intent of the program, according to Wolfe.

“For example, it allows a provider to be able to show lost revenue attributable to the coronavirus, essentially by looking at 2019 patient-related revenue compared to 2020 patient-related revenue,” he said. “Depending on your operations in 2019, you may have had an acquisition or some other type of growth at the beginning part of 2020. You may have actually still lost revenue that isn’t dissipated revenue in 2020, but that simplistic comparison of 2019 to 2020 may not actually show that.”

As more providers retain funds, the industry will likely also see an increase in federal oversight.

Since providers are dealing with federal dollars, there’s the possibility of False Claims Act liability, according to Wolfe.

Moving forward, it will be critical for providers to receive clarity in order to continue to make informed business decisions.

“There’s a lot still to be determined in terms of how you’re going to comply with these reporting requirements,” Wolfe said. “Some of the decisions about how to report are going to influence how you spend the money. It’s really critical that HHS provides that clarity so that providers can make decisions about how to utilize these funds if they haven’t already.”

The HHS to loosen the Provider Relief Fund rules marks the second significant relaxation of rules around federal support for health care providers in recent weeks.

The Centers for Medicare & Medicaid Services (CMS) also extended repayment terms for its Medicare Accelerated and Advance Payment Program earlier this month.

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CMS Announces New ‘Phased-In Approach’ to the Review Choice Demonstration

The U.S. Centers for Medicare & Medicaid Services (CMS) announced Friday it will not resume a full-blown resumption of the Review Choice Demonstration (RCD) for home health agencies in participating states later this month.

Instead, CMS is “phasing in” RCD for agencies in North Carolina and Florida. Agencies in Illinois, Ohio and Texas will be granted flexibilities as well, according to CMS, which cited the current public health emergency as the reason for the newly announced RCD relief.

Despite ongoing operational challenges associated with the COVID-19 virus, CMS officials originally said in early July that the home health industry would once again be subject to RCD demands beginning Aug. 3. Broadly, RCD is a regulatory initiative meant to reduce improper billing by providers by requiring them to undergo pre-claim review, pre-payment review or post-payment review, among other options.

“Given the importance of review activities to CMS’s program integrity efforts, CMS will discontinue exercising enforcement discretion for [RCD] … regardless of the status of the public health emergency,” officials wrote in their July update.

Home health providers and advocates immediately pushed back on that announcement, arguing that CMS’s timing was “heartless” and “hypocritical.”

But over the past few weeks, industry stakeholders were able to meet with several key officials from the agency’s Office of the Administrator and Center for Program Integrity, Tim Rogers, president and CEO of the Association for Home & Hospice Care of North Carolina, told Home Health Care News in an email.

Ultimately, those stakeholders — a combination of providers, state associations, the National Association for Home Care & Hospice (NAHC) and the Partnership for Quality Home Healthcare (PQHH) — were able to get their point across, Rogers noted.

“We detailed every scenario we we could regarding hardships and RCD,” Rogers said. “[This is] a great example of when state associations and their members push hard on advocacy, with strong support from our national associations like NAHC and PQHH.”

Specifically, for North Carolina and Florida, agencies may submit pre-claim review requests for billing periods beginning Aug. 31.

Claims that go through pre-claim review and are submitted with a valid UTN will be excluded from further medical review. Claims submitted without going through the pre-claim review process will process as normal and will not be subject to a 25% payment reduction.

Moving forward, claims may be subject to post-payment review in the future through the normal medical review process, according to CMS.

On their end, providers who have already made a choice selection do not need to take any further action if they choose not to participate in RCD at this time.

CMS will reassess the “phased-in approach” in 60 days.

“Providers may choose to send in a handful of claims through the RCD platform to get their feet wet,” said Rogers, who also serves as chair for The Council of State Home Care & Hospice Associations and has a leadership role at the South Carolina Home Care & Hospice Association. “This will enable them to be confident and comfortable when RCD is required.”

Matt Wolfe, a partner at law firm Parker Poe, described CMS’s announcement as “an important” and “helpful” recognition of the need for home health providers to focus on quality clinical care and serving their communities during the COVID-19 spikes sweeping parts of the nation.

“The voluntary option also allows home health agencies to trial the pre-claim review process without putting their cash flow and operations fully at risk,” Wolfe told HHCN in an email. “I am hopeful that CMS will use this approach as a model moving forward for overseeing providers in a thoughtful and measured manner.”

While agencies in Illinois, Ohio and Texas aren’t afforded as many RCD flexibilities, they will likewise see some regulatory relief.

Cycle 2 in Illinois and Cycle 1 in Texas will end on Sept. 30. Affirmation and claim approval rates will be calculated based on review decisions made between Feb. 1 and Sept. 30 for Illinois providers, and between March 2 and Sept. 30 for Texas providers.

Cycle 2 in Ohio will begin on Aug. 31, as CMS previously noted.

Claims submitted under Choice 1 without going through the pre-claim review process will not be subject to a 25% payment reduction until further notice, but will be subject to pre-payment review.

“We consider this to be a victory,” Rogers said. “A very flexible situation for our providers, in fact, and a recognition of the serious nature of … this pandemic and the role home health caregivers are playing in the care continuum in North Carolina and Florida now, which was one of my stresses to CMS.”

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August to Usher in Onslaught of Home Health Audits

For months now, home health providers have had to worry about an onslaught of new issues, from volume disruptions and personal protective equipment (PPE) shortages, to cash flow problems and lack of telehealth reimbursement.

One long-time stressor they haven’t had to fret about, though, is being audited by the Centers for Medicare & Medicaid Services (CMS). But that’s about to change.

While CMS temporarily paused audit activity back in March as a result of the COVID-19 emergency, it has announced plans to resume enforcement Aug. 3. That means, on top of everything else, home health agencies could also have to worry about proving they haven’t been overpaid by Medicare.

As if that wasn’t enough, at the same time, they could be hit with new, additional types of audits on financial relief received as a result of the CARES Act.

Combined, the various forms of increased oversight could create a huge paperwork burden for already overworked home health providers in the months to come.

PPP audits

While normal fee-for-service Medicare audits are expected to begin in just a few days, audits of Paycheck Protection Program (PPP) loan recipients could start soon thereafter.

Specifically, such audits are expected to begin later this year, according to Matt Wolfe, a partner at the law firm Parker Poe.

That applies to both home health and home care provider PPP loans recipients, none of whom should get too comfortable — even if their PPP loans are relatively small and have been forgiven.

Although the Treasury Department and the Small Business Administration (SBA) have said borrowers who got less than $2 million in PPP loans are considered to have made their requests in good faith, that doesn’t guarantee such loan recipients won’t be audited.

“I think a lot of folks may have breathed a false sigh of relief when they saw that,” Wolfe told Home Health Care News. “But then when [the SBA] issued the interim final rule, they made clear that they retain discretion to audit a borrower regardless of the amount. So if I am a provider, and I received a PPP loan less than $2 million, … it is still critical [to] keep good records to be able to justify retention of loans and the forgivability of the loans.”

According to an HHCN analysis of SBA data, more than 15,000 home-based care providers nationwide received PPP loans of less than $150,000. Approximately 7,400 home-based care providers got loans above $150,000.

All of those entities run the risk of being audited by SBA.

That risk exists for up to six years after the loan is issued. The audit lookback period is on the longer side, but it’s not unheard of, Wolfe said. 

“It’s twice as long as the lookback period typically for IRS audits,” he said. “It is similar to some state Medicaid agencies’ lookback periods. It’s longer than most types of Medicare audits. And it is theoretically shorter than the lookback period that the Department of Justice or U.S. Attorney’s Office would have in a False Claims Act.”

To protect themselves from audits, home-based care providers should keep a paper trail to demonstrate their thought process for each step of the PPP lifecycle. That includes documents to prove an agency’s economic need and justify the amount of the loan, as well as for documentation illustrating how the money was used.

Provider Relief Fund audits

Provider relief funding can also be audited.

If home health providers received more than $10,000 from the Provider Relief Fund, they’ll be expected to report how they used the money by Feb. 15, 2021, according to new U.S. Department of Health and Human Services (HHS) guidance.

“Anytime that HHS is going to be requiring that providers issue reports, they’re not just going to take the providers’ word for it,” Wolfe said. “They’re going to then analyze those reports, and those could lead to further audits in terms of how those funds were used.”

HHS plans to release more details on Provider Relief Fund reporting requirements by Aug. 17.

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HHS Delays Provider Relief Fund Spending Reports Until 2021

Home health providers that received more than $10,000 from the COVID-19-inspired Provider Relief Fund will need to account for all of the grant funds they spent by Feb. 15 at the latest, the U.S. Department of Health and Human Services (HHS) announced earlier this week.

When the Provider Relief Fund was established, health care providers were originally going to have to submit quarterly reports beginning in July. HHS delayed that deadline and then told providers to hold tight for further guidance.

Now, home health providers have until early 2021, but can begin reporting on how they used their relief funds as early as Oct. 1 of this year. Broadly, relief funds are designed to help cover monetary losses directly tied to the COVID-19 crisis and its economic impact.

Through the CARES Act, $175 billion was distributed to health care providers across the country from the Provider Relief Fund.

“I think there’s a growing recognition by HHS of the complexity of what providers are being asked to do in utilizing these provider relief funds, documenting usage of them and then reporting that out,” Matt Wolfe, a partner at law firm Parker Poe, told Home Health Care News. “I think HHS is trying to develop a little bit more consensus within its walls before they start demanding that providers report information.”

HHS will be releasing more detailed instructions on how to report by Aug. 17.

Without further clarification, reporting will likely be sloppier and inconsistent across the board, which could draw the process out even further, Wolfe said.

“I think this was a recognition of HHS needing additional time to be able to really refine the reporting requirements,” he added.

The $10,000 threshold takes into account the total amount of relief each provider received. So if a provider received two smaller amounts that added up to more than $10,000, it wouldd still be on the hook for reporting by February of next year.

“This announcement was really clarifying to providers when HHS intends to release additional information about the reporting requirements. It was also notifying providers when they’re going to release a reporting system that will allow recipients to be able to make these reports,” Wolfe said. “HHS was fielding a lot of questions from providers thinking that they had to make reports now. So that was the purpose of the announcement, [to clarify that].”

The next stimulus package, meanwhile, could make way for an expansion of that Provider Relief Fund, which would mean even more relief for providers in the future.

HHS began distributing provider relief payments to Medicare-certified home health agencies on April 10.

Initially, U.S. health care officials described the payments as having “no strings attached.” As time moved on, however, providers started to realize that wasn’t entirely the case, with some even declining the CARES Act money that had been allocated to them.

Encompass Health Corporation (NYSE: EHC) is one example.

“At the end of the day, we just felt, as a well-capitalized company, we had access to a variety of funding resources,” Encompass Health CEO Mark Tarr said during a May investor presentation. “We just thought it was the best decision for Encompass Health to return the funds.”

As for what further details could come out of the next announcement, that remains to be seen. While some speculated that the quarterly-report style could be done away with completely, Wolfe isn’t so sure.

“We’re still having to wait and see what the detailed instructions are going to be that they release later in August, but I don’t read this announcement to say that the quarterly requirements are necessarily going to go away,” Wolfe said.

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‘I’m Not Sure Their Timing Could Be Any Worse’: CMS to Resume Review Choice Demonstration

The U.S. Centers for Medicare & Medicare Services (CMS) announced Tuesday that the Review Choice Demonstration (RCD) would be renewed for participating states beginning in August.

The RCD was suspended in late March due to the COVID-19 crisis, but now CMS is planning on moving forward with the demonstration “regardless of the status of the public health emergency” beginning on Aug. 3.

RCD states include Illinois, Ohio, Texas, North Carolina and Florida.

“I’m not sure their timing could be any worse,” Linda Murphy, the founder and COO of Concierge Home Care in Florida, told Home Health Care News.  “This just heightens that challenge from a process perspective and adds additional administrative costs to all of the other unforeseen costs we’ve [taken on] to provide care.”

Concierge Home Care is a home health provider with six locations in northern Florida, which is now the world’s COVID-19 epicenter.

COVID-19 cases are sharply rising in Florida, with numbers increasing by over 400% from three weeks ago, according to NPR’s coronavirus tracker.

Originally, CMS suggested that the RCD would be suspended as long as a public health emergency was declared. And even if a declaration is no longer technically active in August, providers will still be on the front lines of a very active COVID-19 virus.

“It was a gut punch for providers,” Matt Wolfe, a partner at law firm Parker Poe, told HHCN. “[In many of these states], there’s significant increase in the number of COVID-19 cases and COVID-19-related hospitalizations, and our home health agencies are actively working with their hospital partners to help to relieve some of those challenges that those hospitals are facing.”

Now, those agencies are going to have to deal with increased and sudden administrative burden.

Through its continued relief efforts, Congress would appear to be at odds with this sort of “tone deaf” decision from CMS, Wolfe said.

“To be clear, it’s not just RCD — they’re now resuming all auditing activities,” Wolfe said. “They’re going in the opposite direction that Congress appears to have been instructing CMS to go. … We need to be utilizing government resources and provider resources on providing quality care to our Medicare beneficiaries, not on this paperwork exercise.”

According to CMS, the choice selection periods will begin in North Carolina, Florida and Ohio on Aug. 3.

Then, home health claims in all demonstration states with billing periods beginning on or after Aug. 31, 2020 will be subject to review, which includes pre-claim review, pre-payment review and post-payment review, among other options depending on compliance levels.

One of the only ways this sort of measure could be stopped would be through congressional intervention. Congress withholds the right to halt CMS from moving forward with RCD re-implementation.

Lawmakers successfully thwarted the expansion of the Pre-Claim Review Demonstration — the precursor to RCD — in 2017. As of now, it’s unclear how likely congressional action is this time around, however.

National Association for Home Care & Hospice (NAHC) President William A. Dombi also found the resumption of RCD misguided at this point in time. Dombi said NAHC — a Washington, D.C.-based industry association — has urged CMS to reconsider.

“The restart of the RCD program fails to take into account that we are at the height of the pandemic with no early end in sight,” Dombi said in a statement to HHCN. “Clinical staff need to be providing clinical services, not shuffling paperwork for a demonstration project. We have asked CMS to step back from this action immediately.”

It is clear that CMS is aiming to send a clear message to providers: public health emergency or not, it’s time to get your ducks in a row. CMS’s goal in RCD is to reduce improper billing under Medicare’s home health benefit.

But forcing providers to pay attention to the RCD may be drawing meaningful focus from elsewhere.

“It’s going to create some really challenging decisions for home health agencies that are already struggling to keep their doors open,” Wolfe said. “The experience in Illinois, [for instance], is that in order to be successful, you have to really deploy significant resources to ensure that all of your documentation is not just correct, but also submitted properly — it’s really time consuming and it drains resources.”

It could also be the case that CMS is going to be instructing Palmetto — the Medicare Administrative Contractor (MAC) that oversees Medicare benefits and claims under RCD — to perform post-payment reviews on all claims that were submitted during the delay period in Illinois, according to Wolfe.

It’s not clear whether that would be for Illinois or in all five states, though.

“I think CMS’s timeline is aggressive considering the state of emergency,” Murphy said. “We are seeing a spike in quarantined team members due to outside exposures. We are now mandated to test our team members every two weeks … We are [already] asking so much of our clinical teams to meet the challenges and demands.”

Total Medicare improper payments were estimated at $28.9 billion in 2019, according to CMS. Home health improper payments have steadily decreased dating back to 2015.

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