The recently extended COVID-19 public health emergency (PHE) will not last forever. When it does expire, hospices need to be aware of potential legal risks.
The U.S. Department of Health & Human Services (HHS) once again extended the COVID-19 PHE until Oct. 6. While the agency has the option to keep extending the emergency, hospices may start seeing additional scrutiny, particularly in regards to telehealth utilization and the Provider Relief Fund (PRF).
Hospices need to prepare for a world in which they can no longer use telehealth for services like face-to-face recertification encounters, among other flexibilities. But careful documentation of the ways they’ve used both telehealth and any federal relief they received can help providers hold their ground against any legal probes on the horizon, according to Bryan Nowicki and Andrew Brenton, hospice attorneys at law firm Husch Blackwell.
“As we’re perhaps nearing the end of the public health emergency, it’s a good time for hospices to start thinking about adjustments to their practices if they’re no longer able to do things via telehealth,” Brenton told Hospice News. “Since the beginning when hospice providers got their first round of relief fund payments, we’ve known audits of these would be coming. Now we’re starting to see the fruits of that.”
Telehealth flexibilities may expire
The temporary telehealth flexibilities instituted by the U.S. Centers for Medicare & Medicaid Services (CMS) allowed hospices to remain connected to patients in a time of social distancing. These flexibilities permitted the use of telehealth to fulfill requirements typically done in person, such as recertifications by physicians.
While HHS has indicated that these waivers would remain in place for at least five months after the PHE expires, they have given no word on whether any of those flexibilities would become permanent.
Hospices need to look at their care delivery practices to gauge their current reliance on telehealth, according to Brenton. Evaluating utilization now could help them to start thinking about the kinds of adjustments they may need to make if telehealth is no longer an option, Brenton said.
Additionally, hospices need to document why and how they used telehealth in order to support their decision to use that modality, according to Harper. Hospices should ensure their “operational policies are sound” when it comes to patient eligibility and recertification over telehealth, especially as regulators continue to crack down on these issues, Harper stated.
“Hospices need to ensure that they are accurately assessing eligibility for care on telehealth visits and documenting that accurately as well,” Harper said. “The biggest issue there is that whatever technology is used by hospice, it needs to make sure that they’re meeting the appropriate assessment requirements of their patients.”
CMS has recently indicated that it is paying close attention to how these services have been delivered, according to Dara Corrigan, director of the CMS Center for Program Integrity (CPI).
The agency seeks to combat Medicare and Medicaid fraud related to telehealth, telemedicine and COVID-related fraud, Corrigan said during a national conference call with hospice operators and stakeholders. She indicated that some “bad actors” have used the flexibilities as an opportunity to take advantage of federal health programs and exploit patients.
That expiration may be approaching sooner rather than later, bringing legal ramifications tied to both the PRF and telehealth — likely starting in 2023, according to Jacob Harper, associate at law firm Morgan Lewis.
“There’s going to be a lot going on with these measures, and the clock is ticking on [PRF] fund auditing,” Harper told Hospice News. “The government is under the gun to report to Congress about when and how these funds have ultimately been used. Hospices also need to be thinking about what their future might look like in the realm of possibility without telehealth, or changes to it. The hardest part for providers is that we’re not seeing any bills in Congress right now that would make a permanent extension of the hospice flexibilities. There’s no legislative vehicle driving that forward.”
Next year could be a “doozy” for hospices in terms of fallout from government audits and process improvements, Harper told Hospice News.
Without the waivers, regulators will interpret telehealth rules more strictly. They will also examine and audit PRF funds closely, according to Nowicki.
To date, HHS has distributed four phases of PRF funding during the emergency in an effort to help providers cope with COVID-related financial headwinds. Many have seen revenue dips stemming from falling patient census and lengths of stay, higher labor and supply costs, and inflation, among other factors.
Documentation key in PRF audits
Hospices will need to have ample documentation of how they used those funds if auditors darken their doorstep. This should also exemplify any financial hardships they incurred, Brenton indicated
“You’ve got to really maintain documentation supporting increased expenses and lost revenue attributable to COVID,” Brenton told Hospice News. “You’re going to really need to have documentation substantiating that — it’s critical.”
Congress created the PRF in 2021via the CARES Act. In addition to allocating the funds, the law requires the HHS Office of the Inspector General (OIG) to audit the program and report their findings to congressional appropriations committees.
Husch Blackwell has already seen a rise in hospice clients flagged for OIG audits, with some cases including questions around PRF funds, according to Brenton.
The OIG is in process of completing a PRF audit project that includes review of 30 hospices in a mix of geographic regions across the country, according to Nowicki. The results of that project will in part guide auditing activity to come following the PHE, he said.
Supporting documentation around these funds will help regulators gain a full financial picture of hospices’ hardship during the pandemic and appropriateness of fund spending, Nowicki added.
“That project is just a snapshot of what hospices did with those funds. I doubt this is going to be the end of audits in this area,” Nowicki told Hospice News. “I expect that either OIG, [Unified Program Integrity Contractors (UPICs)], or other entities are going to have to do even more audits of hospices to look at whether they used the funds appropriately. It’ll be a concerning issue if they can’t support their decisions with documentation.”
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