On October 29, 2020, CMS issued the Home Health Prospective Payment System final rule [CMS-1730-F, CMS-1744-IFC, and CMS-5531-IFC], which permanently authorizes use of telecommunications technology as part of patient care under the Medicare home health benefit.[1]

The final rule is another regulatory step toward CMS recognizing the critical role of virtual care in the home health and other care settings, beyond the COVID-19 pandemic.[2]

Use of Telecommunications Technology in Home Health Services

In April 2020, CMS had initiated regulatory changes proposing to expand the use of telecommunication in the provision of home health services covered by Medicare.  CMS stated that its goal in expanding this permitted use of telecommunications technology in furnishing home health care is to “improve efficiencies, expand the reach of healthcare providers, allow more specialized care in the home, and allow home health agencies to see more patients or to communicate with patients more often.”

In the final rule, effective January 1, 2021, home health agencies (HHAs) will be able to use telecommunications – and receive reimbursement for home health services – under the following conditions:

  • The telecommunication services are not a substitute for a home visit ordered as part of the plan of care;
  • The telecommunication services are not intended to establish patient eligibility or payment;
  • The telecommunications modality is included in the plan of care;
  • The telecommunications modality may be any of the following:
    • remote patient monitoring, defined as the collection of physiologic data (for example, ECG, blood pressure, glucose monitoring) digitally stored and/or transmitted by the patient or caregiver or both to the home health agency;
    • teletypewriter (TTY); and
    • 2-way audio-video telecommunications technology that allows for real-time interaction between the patient and clinician.
  • The telecommunication services, including remote patient monitoring, are deployed to address patient-specific needs as identified in the comprehensive assessment; and
  • The medical record describes how the telecommunication services will help facilitate treatment outcomes/goals identified in the plan of care.

HHAs are to report permitted telecommunications as allowable administrative costs on line 5 of the home health agency cost report, except for audio-only technology that will be reported as a “general” expense. Visits to a beneficiary’s home for the sole purpose of supplying, connecting, or training the patient on the technology, without the provision of a skilled service, will not be separately billable under this final rule.

It is important to note that these permanent changes allow reimbursement of home health services using telecommunications; however, the telecommunications technologies themselves are not reimbursable telehealth as defined under Medicare. As stated in this final rule, and as advocated in a Senate letter dated August 21, 2020 to HHS Secretary Alex Azar and CMS Administrator Seema Verma, the Medicare home health benefit is likely to remain an in-person service at its core, and certain services will remain “delivered in-person, such as wound care or surgical site care, catheter care, and start-of-care admissions.”

Accordingly, the final rule does not adopt the full scope of telehealth authorized pursuant to waivers during the COVID-19 pandemic.  For the duration of the COVID-19 public health emergency, CMS had issued Blanket Waivers for providers that include waiving the requirement for an in-person home visit to establish patient eligibility. Instead, as appropriate, providers may conduct the initial in-person home visit through video and audio technology or by record review. Once the HHS declaration of COVID-19 public health emergency expires on January 5, 2021 (unless renewed), however, so will these Blanket Waivers.

CMS’s fact sheet on this final rule is available here.

[1] In addition, CMS finalized routine updates to home health payment rates for Calendar Year (CY) 2021, updates to the home infusion therapy benefit and reporting under the Home Health Value Based Purchasing (HHVBP) Model.

[2] In response to the COVID-19 pandemic, CMS had temporarily relaxed or eliminated regulatory barriers to utilizing telemedicine in providing home health and other Medicare covered services.

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Photo of Brian McGovern Brian McGovern

Brian McGovern is a partner at Crowell & Moring’s New York office.

Brian provides legal counsel and representation to health care and nonprofit clients. His experience spans the breadth of legal issues that confront the provider community, including counseling health care providers and…

Brian McGovern is a partner at Crowell & Moring’s New York office.

Brian provides legal counsel and representation to health care and nonprofit clients. His experience spans the breadth of legal issues that confront the provider community, including counseling health care providers and managed care plans on regulatory compliance; responding to government audits and investigations, including Medicare contractor audits and New York State Office of Medicaid Inspector General (OMIG) and Attorney General Medicaid Fraud Control Unit (MFCU) inquiries; overseeing or performing internal compliance investigations; advising on and negotiating managed care, vendor, and other contracts; providing counsel and advocacy on reimbursement issues; assisting providers on administrative applications and matters before regulatory agencies, including rate appeals, certificate of need applications, and property tax exemption applications and appeals; responding to patient-care survey deficiency citations; and representing providers in administrative proceedings and litigation in state and federal courts. The providers he has represented include nursing homes, home care agencies, hospices, hospitals, continuing care retirement communities, pediatric facilities, and managed care plans.

Photo of Lidia Niecko-Najjum Lidia Niecko-Najjum

Lidia Niecko-Najjum is a counsel in Crowell & Moring’s Health Care Group and is part of the firm’s Digital Health Practice. With over 15 years of clinical, policy, and legal experience, Lidia provides strategic advice on health care regulatory and policy matters, with…

Lidia Niecko-Najjum is a counsel in Crowell & Moring’s Health Care Group and is part of the firm’s Digital Health Practice. With over 15 years of clinical, policy, and legal experience, Lidia provides strategic advice on health care regulatory and policy matters, with particular focus on artificial intelligence, machine learning, digital therapeutics, telehealth, interoperability, and privacy and security. Representative clients include health plans, health systems, academic medical centers, digital health companies, and long-term care facilities.

Lidia’s experience includes serving as a senior research and policy analyst at the Association of American Medical Colleges on the Policy, Strategy & Outreach team. Lidia also practiced as a nurse at Georgetown University Hospital in the general medicine with telemetry unit and the GI endoscopy suite, where she assisted with endoscopic procedures and administered conscious sedation.