On May 1, 2020, the Centers for Medicare and Medicaid Services (CMS) issued an Interim Final Rule with comment period (IFC), to be published on May 8, 2020. The IFC permanently revises certain regulations regarding the scope and provision of home health services under the Medicare and state Medicaid programs, and delays certain reporting requirements for Home Health Agencies (HHAs) during the ongoing COVID-19 Public Health Emergency (PHE).
Care Planning – Medicare Home Health Services: CMS has implemented certain provisions of the CARES Act with respect to home health services for Medicare beneficiaries. These provisions, which will go into effect May 8, 2020 (the scheduled date of publication of the IFC) and will apply retroactively to services rendered on or after March 1, 2020, include the following:
- In addition to physicians, nurse practitioners (NPs), clinical nurse specialists (CNS) and physician assistants (PAs) will be considered “allowed practitioners.” This means they may certify eligibility for home health services under the Medicare home health benefit, establish and periodically review the plan of care, and supervise the provision of items and services for Medicare beneficiaries.
- These allowed practitioners may also perform the face-to-face encounter for the patient for whom they are certifying eligibility (however, if a face-to face encounter is performed by an allowed non-physician practitioner (NPP) in an acute or post-acute facility, from which the patient was directly admitted to home health, the certifying practitioner may be different from the provider performing the face-to-face-encounter).
- These changes are permanent and are not time limited to the COVID-19 PHE.
- Importantly, however, NPs, CNSs and PAs are still required to practice in accordance with state law in the state in which they perform such services.
Care Planning – Medicaid Home Health Services: The IFC also permanently amends Medicaid home health regulations to allow other licensed practitioners (in addition to physicians) to order medical equipment, supplies and appliances, when practicing in accordance with state law. In addition, an NP, CNS or PA may order part-time or intermittent nursing services, home health aide services, and, if included in the state’s home health benefit, therapy services. The IFC also removes the requirement that NPPs have to communicate the clinical findings of a face-to-face encounter to the ordering physician. NPPs are able to independently perform the face-to-face encounter for the patient for whom they are the ordering practitioner in accordance with state law (and if state law does not allow such flexibility, the NPP must work in collaboration with a physician).
Delay in Compliance Date for Certain Reporting Requirements: CMS is delaying the release of the new HHA Outcome and Assessment Information Set (OASIS) Instrument (OASIS-E) in order to reduce the burden HHAs would otherwise incur as a result of having to incorporate the updated OASIS into their operation before January 1, 2021. HHAs can continue to use the current version of their assessment instruments (OASIS-D). HHAs will be required to use the new instrument (OASIS-E) to begin collecting data on the two Transfer Of Health Information Quality Measures beginning with discharges and transfers on January 1st of the year that is at least one full calendar year after the end of the PHE. Likewise, CMS will require HHAs to begin collecting data on the SPADEs (i.e., certain Standardized Patient Assessment Data Elements) beginning with start of care, resumption of care and discharges (except for the hearing, vision, race and ethnicity SPADEs, which would be collected at the start of care only), on January 1st of the first year that is at least one full calendar year after the end of the PHE.
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If you have questions about your state’s laws regarding NPPs scope of practice, or on any other home health-related matter, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at firstname.lastname@example.org.
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