Monday, January 4, 2021

WASHINGTON, D.C. (January 4, 2021)—President Donald J. Trump signed legislation in late December to fund U.S. federal government operations through the 2021 Fiscal Year and provide $900 billion of stimulus supports to address the impacts of the COVID-19 pandemic. NAHC has provided the following summary of the over 5600-page legislation. Generally, this summary is confined to those provisions that can be expected to have a direct impact on homecare and hospice. Note also that some provisions require regulatory action to implement.

While the outcome of the new federal spending is positive, there is much to do next year to ensure that homecare and hospice can fully operate during the pandemic and beyond. The most notable successes in the legislation are the extension of the moratorium on the 2% Medicare sequestration cut and the hospice survey provisions that reduced mandatory surveys from every two years to every three years, while authorizing more frequent surveys targeted to non-compliant hospices. The additional support available through the SBA Paycheck Protection Program will also help many homecare and hospice companies.

Beyond the provisions with clear impact on homecare or hospice, the legislation essentially will affect virtually all sectors in health care and the economy at large. This is the second-largest expenditure package in the history of the U.S., surpassed only by the $3 trillion in action in March 2020 as the pandemic grew. President-elect Biden has indicated that this legislation is only a down payment on the relief that is needed. As such, it is expected that Congress will begin work on further relief in early January. Its fate is uncertain, particularly given the many months that it took to break the partisan impasse that had developed on this legislation.

Small Business Administration Paycheck Protection Program
Nearly $284 billion of funding has been added to this successful program where SBA loans can become grants under a series of standards designed to encourage small businesses to maintain employment. Many homecare and hospice companies qualify as “small business” under SBA standards and have taken advantage of the Paycheck Protection Program that began through the CARES Act that was passed in March.

The legislation expands the type of corporations eligible for a loan, simplifies the application process, permits a second loan draw, and expands the eligible expenses. The SBA is required to implement the changes through regulations within 10 days. The program requirements can be quite complex. NAHC recommends that interested companies consider the assistance of a competent consultant.

Vaccine Distribution
The bipartisan COVID-19 relief package provides funds to accelerate the free and equitable distribution of safe vaccines to as many Americans as possible as soon as possible, to implement a strong national testing and tracing strategy with billions reserved specifically for combating the disparities facing communities of color, and to support health care workers and providers. The legislation includes:

  • $22.4 billion in testing, contact tracing, surveillance, containment, and mitigation, with a targeted investment of no less than $2.5 billion for expanding access to testing and contact tracing in high-risk and underserved populations, including for communities of color and rural areas, and $790 million for the Indian Health Service to support tribes.
  • Provides over $19 billion in the nation’s supply of COVID-19 vaccines and therapeutics, including the manufacture, production and purchase of vaccines, therapeutics and ancillary supplies.
  • Supplies $8.75 billion for vaccine distribution, administration, planning, preparation, promotion, monitoring, and tracking, with a targeted investment of $300 million for high-risk and underserved populations, including for communities of color and rural areas, and $210 million for the Indian Health Service to distribute vaccines directly to tribes.

Medicare Sequestration Moratorium
The legislation provides for a three-month delay of the Medicare sequester payment reductions through March 31, 2021. The suspension of the ongoing 2% sequestration of Medicare payments will bring an estimated $100 million in relief to hospices and $90 million in relief to home health agencies through the first three months of 2021. NAHC worked hard with AHA, AMA and AHCA to secure this relief. A further advocacy effort is already underway to extend the sequestration moratorium through the length of the Public Health Emergency.

Other Public Health Measures
The legislation invests in public health systems to expand access to vaccines, testing, personal protective equipment (PPE), and mental health services. Specifically, it provides:

  • $3.25 billion for the Strategic National Stockpile.
  • $4.25 billion for additional mental health and substance use disorder services and support through the Substance Abuse and Mental Health Services Administration.
  • Long-term extensions of critical public health programs, including: Community Health Centers, the National Health Service Corps, Teaching Health Centers and Special Diabetes Programs.
  • A national campaign to increase awareness and knowledge of the safety and effectiveness of vaccines, expands programs to collect vaccination coverage data, and authorizes grants to address vaccine-preventable diseases.
  • A grant program to expand the use of technology-enabled collaborative learning and capacity-building models to increase access to specialized health care services in medically underserved areas and for medically underserved populations.
  • For expansion and improvement of public health data systems at the Centers for Disease Control and Prevention (CDC) and authorizes grants to state, local, Tribal, or territorial public health departments for the modernization of public health data systems. These investments will improve disease and health condition detection, improve secure public health data collection, enhance interoperability, and support and train personnel.
  • Reauthorization of the School Based Health Center Program.

Provider Support Relief Fund Payments
The legislation provides additional relief to health care providers, including making additional investments in the Provider Relief Fund and clarifying policies related to certain aspects of the program. Specifically, it provides:

  • $3billion in new resources for the Provider Relief Fund bringing the total to $178 billion
  • 85% of the monies currently unobligated in the Provider Relief Fund are allocated equitably via applications that consider financial losses and changes in operating expenses. Non-government financed home care may be able to get some of this funding as it has been essentially left out so far
  • Additional certainty to providers by clarifying that payments made prior to Sept. 19, 2020, must be calculated using the Frequently Asked Question guidance released by HHS on June 19, 2020.
  • Additional flexibility for providers by clarifying that eligible health care providers may transfer all or any portion of such payments among the subsidiary eligible health care providers of the parent organization.

Medicaid

The legislation extends a number of expiring Medicaid programs.

  • Requires state Medicaid programs to cover non-emergency medical transportation (NEMT) to ensure that beneficiaries who lack access to regular transportation are able to travel to their medical appointments.
  • Enhances protections for beneficiaries receiving home-and community-based services (HCBS) by authorizing Medicaid Fraud Control Units (MFCUs) to investigate fraud and abuse in non-institutional settings
  • Extends protections against spousal impoverishment for partners of recipients of HCBS for three years.
  • Extends funding for the Money Follows the Person rebalancing demonstration for an additional three years while making important program improvements.

Hospice-Specific Provision
Hospice provisions include several items that NAHC has been working intensely on over recent years, including hospice survey reforms and the Rural Access to Hospice Act, which will allow RHC and FQHC physicians and practitioners to serve as the hospice attending physician to patients served by such centers. While NAHC has some continuing concerns about some of the survey reforms that have been included in the final package, we are deeply gratified that the package has been modified to keep routine hospice survey frequency at once every 36 months and instead focuses increased scrutiny on problem providers. We are also pleased that the final language includes provisions advocated by NAHC that require states and the federal government to work toward greater consistency of survey findings and requires uniform training and testing of surveyors. NAHC plans to work closely with CMS to ensure appropriate implementation of the survey reforms.

  • Medicare payment for certain Federally Qualified Health Center and Rural Health Clinic services furnished to hospice patients (HR 2594).

This allows Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs) to furnish and bill for hospice attending physician services when RHC and FQHC patients become terminally ill and elect the hospice benefit beginning Jan. 1, 2022. As a result, Medicare beneficiaries will continue to receive hospice-related care from their known provider.

  • Adjusting calculation of hospice cap amount under Medicare.

This extends the change to the annual updates to the hospice aggregate cap made in the Improving Medicare Post-Acute Care Transformation Act (IMPACT Act) of 2014 and applies the hospice payment update percentage rather than the Consumer Price Index for Urban Consumers (CPI–U) to the hospice aggregate cap for fiscal years 2026 through 2030.

  • Establishing hospice program survey and enforcement procedures under the Medicare program

This makes changes to the Medicare hospice survey and certification process to improve consistency and oversight, allowing the secretary to use intermediate remedies to enforce compliance with hospice requirements and extending the requirement that hospices be surveyed no less frequently than once every 36 months. It also creates a new Special Focus Facility Program for poor-performing hospice providers, who will be surveyed not less frequently than once every six months. It increases the penalty for hospices not reporting quality data to the Secretary from two to four percentage points, beginning in fiscal year 2024.

Here is a detailed summary of hospice survey reforms:
Survey Frequency

  • Makes routine hospice surveys permanent
  • Routine survey frequency established at no less than once every 36 months

Transparency

  • Authorizes public release of surveys conducted by Accrediting Organizations (AOs)
  • States/AOs must submit timely survey/certification information in form specified by HHS
  • Information shall include any inspection reports, enforcement actions, and other information as determined by HHS; For AO surveys conducted on/after 10/2021, form 2567 must be part of information submitted
  • Beginning not later than 10/2022, HHS shall publish survey/certification information online in a manner that is “prominent, easily accessible, readily understandable, and searchable” ; info shall be updated in a timely manner

Survey Consistency: Each state and HHS shall implement programs to measure and reduce inconsistency in the application of survey results among surveyors

Survey Teams: For surveys conducted on/after 10/2021 by more than one person must be conducted by a multi-disciplinary team  (including RN)

Conflicts of Interest: State surveyors may not survey programs by which they have been employed/acted as consultant in previous 2 years (or in which surveyor has personal or familial financial interest), beginning 10/2021

Surveyor Training

  • No later than 10/2021, HHS shall provide for comprehensive training for state, Federal, and AO surveyors, including training related to review of written plans of care
  • No one may serve as a member of a survey team unless they have completed a training and testing program approved by HHS

Special Focus Program: HHS shall conduct a special focus program for enforcement of requirements for those hospices that have substantially failed to meet requirements; special focus surveys shall be conducted not less than once every six months

Enforcement:

  • Instances of IJ: HHS must take immediate action to remove the jeopardy and correct deficiencies using temporary management or terminate the program.  HHS may also provide for one or more of the other remedies (payment suspension, CMPs, temporary management)
  • Instances of Non-IJ: In such cases in lieu of termination, HHS may impose additional remedies for a period not to exceed 6 months; if program is still not in compliance, HHS shall terminate

Penalty for previous non-compliance:

If HHS determines a hospice is in compliance but had been out of compliance for a previous period, HHS may impose CMP for the days for which the program was not in compliance

Option to continue payments for an out of compliance hospice for a period of not longer than 6 months if:

  • Survey agency finds it more appropriate to take alternative action to termination
  • Hospice has submitted plan and timetable for corrective action that is approved by HHS
  • Program agrees to repay federal payments during such period if corrective action is not taken in accordance with the agreed-upon plan of correction
  • HHS shall establish guidelines for approval of corrective action

Remedies:

  • Not later than 10/2022, HHS shall develop and implement a range of remedies to address circumstances of concern identified for enforcement (see above) along with procedures for appealing determinations relating to imposition of such remedies
  • Not later than 10/2022, HHS shall develop and implement specific procedures and conditions for applying new remedies (including amounts of fines and severity of each remedy). Procedures must reflect incrementally more severe fines for repeated or uncorrected deficiencies.
  • Specific remedies (these are in addition to State/Federal sanctions and shall not limit other available remedies):
    • CMPs not to exceed $10,000 per day
      • Any portion of CMPs collected may be used to support activities that benefit individuals receiving hospice care, including education and training programs for hospices to ensure compliance
    • Prospective payment suspension
      • Suspension of payment shall terminate upon findings of substantial compliance with all requirements
    • Temporary management
      • Shall not be terminated until HHS determines program has management capability to ensure continued compliance

Funds for Hospice Program Improvements: HHS may provide for use collected CMPs to support activities that benefit hospice patients, including education and training to ensure hospice compliance

Funding: Transfers $10 million annually (beginning 10/2022) from Trust Fund to conduct hospice surveys (and continues IMPACT Act funding)

Quality Reporting: Increase penalty for failure to meet HQRP requirements beginning with FY2024 payment year (from 2% to 4%)

GAO Report: Not later than 36 months following enactment, GAO shall submit to key congressional committees an analysis of the effects of the new remedies, including the frequency of application of such remedies and the impact on access to, and quality of, hospice care