What Does the End of the PHE Mean for Occupational Therapy?

The Consolidated Appropriations Act of 2023 (CAA) extends the authority for OT practitioners to provide telehealth services to Medicare beneficiaries and continues waivers of geographic and originating site restrictions through December 31, 2024.

However, AOTA recently became aware of a concerning Medicare telehealth policy question in facility settings. In several national calls, CMS questioned the ability of occupational therapy, physical therapy, and speech-language pathology practitioners to provide telehealth services in outpatient hospital and SNF settings (under Medicare Part B) after the PHE. AOTA, APTA, and ASHA believe this is an incorrect interpretation of existing law and policy and sent a joint letter advocating for the continuation of telehealth in these settings after May 11.

In addition, during the PHE, the Department of Health and Human Services relaxed enforcement of HIPAA requirements for Medicare services to allow clinicians to choose telehealth platforms that may not comply with HIPPA privacy and security requirements. However, HIPAA enforcement will resume at the end of the federal PHE.

Remember, for Medicare Part A home health agency (HH) care, telehealth visits do not count for purposes of eligibility or payment, but CMS is using G codes to collect data on the use of telecommunications technology during a 30-day home health period of care on home health claims. This data collection is voluntary beginning January 1, 2023, and mandatory beginning on July 1, 2023. CMS has indicated that they do not want home health agencies to submit a claim if the only services provided were via telecommunications technology. See CMS Change Request 12805, which updates the Medicare Claims Processing Manual and provides instructions to the Medicare Administrative Contractors (MACs) on reporting the new G codes for telehealth services on home health claims, and Change Request 13110, which provides clarifications.

3-Day Prior Hospitalization

During the PHE, CMS waived the Medicare Part A SNF coverage requirement that a Medicare beneficiary must have a 3-day qualifying hospital stay to qualify for a covered Part A SNF stay. Additionally, CMS granted certain beneficiaries who exhausted their SNF benefits a one-time renewal of SNF Part A coverage, beginning a new benefit period, without first having the typical 60-day wellness period that is normally required before a beneficiary can obtain a new benefit period. These waivers terminate immediately with the expiration of the COVID-19 PHE.

This means that all new Medicare Part A SNF stays beginning on or after May 12th will require a qualifying 3-day hospital stay before Medicare coverage. Additionally, for any new benefit period that begins on or after May 12th, the beneficiary will need to have completed a 60-day wellness period before being able to access a new benefit period.

Requirements for COVID-19 Testing and Vaccination

On August 25, 2020, CMS issued an interim final rule with comment period (IFC) (CMS-3401-IFC) requiring LTC facilities to perform routine testing of residents and staff for COVID-19 infection. As noted in the IFC, this testing regulation will expire with the end of the PHE. In addition, CMS will end the requirement that all staff be fully vaccinated for COVID-19. CMS will provide more information about this on or after May 11. CMS continues to urge staff to remain up to date on COVID-19 vaccinations.

OT Status on Start of Care

At the start of the PHE, CMS temporarily suspended the rule that prevented OTs from opening Medicare home health cases, allowing occupational therapists to perform initial and comprehensive assessments for all home health patients receiving therapy as part of the plan of care, even when only nursing and OT are on the order. Starting May 12^th, if nursing is on the order, then nursing must start the home health case.

On November 2, 2021, CMS issued its final CY 2022 home health prospective payment system (HH PPS) rule allowing occupational therapists to perform the initial and comprehensive assessments required to open Medicare home health therapy cases beginning on January 1, 2022. CMS updated Section 484.55 of the home health conditions of participation to allow an occupational therapist to conduct the initial assessment visit and complete the comprehensive assessment under the Medicare program:

1. When occupational therapy is on the home health plan of care, with either physical therapy or speech therapy, and
2. When skilled nursing services are not initially on the plan of care.

Through May 11, OT may perform the initial & comprehensive assessments for all home health patients receiving therapy (as long as nursing, PT, or SLP is on the order in order to establish eligibility). After May 11, OT may perform the initial & comprehensive assessments for home health therapy-only patients. The key is whether nursing is on the order.

OASIS Reporting

CMS has been providing relief to HHAs on the timeframes related to OASIS transmission through the following 1) extending the 5-day completion requirement for the comprehensive assessment to 30 days, and 2) waiving the 30-day OASIS submission requirement. The waiver of this requirement ends with the conclusion of the PHE.

Intensity of Therapy Requirement (“3-Hour Rule”)

The Coronavirus Aid, Relief, and Economic Security (CARES) Act required the Secretary to waive the criterion that patients treated in inpatient rehabilitation facilities generally receive at least 15 hours of therapy per week. IRFs must comply with the 3-hour rule on/after May 12^th.

Flexibility for the 60% Rule

CMS has been allowing IRFs to exclude patients from the IRF freestanding hospitals or excluded distinct part unit’s inpatient population for purposes of calculating the applicable thresholds associated with the requirements to receive payment as an IRF (commonly referred to as the “60% rule”) if an IRF admits a patient solely to respond to the emergency and the patient’s medical record properly identifies the patient as such. IRFs must comply with the 60% rule on/after May 12^th.

CMS waived requirements to provide detailed information regarding discharge planning, including for post-acute care services. These waivers end with the conclusion of the PHE.

Staff Vaccination Requirements

On November 5, 2021, CMS issued an IFC (CMS-3415-IFC) requiring Medicare and Medicaid-certified providers and suppliers to ensure that their staff was fully vaccinated for COVID-19 (i.e., obtain the primary vaccination series) as a critical step to protect patients. On April 10, 2023, the President signed legislation that ended the COVID-19 national emergency. CMS will soon end the requirement that covered providers and suppliers establish policies and procedures for staff vaccination. CMS will share more details regarding ending this requirement at the anticipated end of the PHE. CMS continues to urge everyone to stay up to date with the COVID-19 vaccine.

Quality Assessment and Performance Improvement (QAPI)

CMS provided flexibilities to allow healthcare providers to use their QAPI resources to focus on challenges and opportunities for improvement related to the PHE by waiving certain QAPI requirements in several settings (e.g., community mental health centers, home health, hospice, and hospitals). QAPI flexibilities for SNFs ended in May 2022. The waiver of all other QAPI requirements ends on May 11.

Aides

During the PHE, CMS allowed flexibilities for aide training, assessment, certification, and onsite visit requirements in several settings. These flexibilities end on May 11.

Virtual Supervision

To allow more people to receive care during the PHE, CMS temporarily changed the definition of “direct supervision” to allow the supervising health care professional to be immediately available through virtual presence using real-time audio/video technology instead of requiring their physical presence. CMS also clarified that the temporary exception to allow immediate availability for direct supervision through virtual presence also facilitates the provision of telehealth services by clinical staff “incident to” the professional services of physicians and other practitioners. This flexibility will expire on December 31, 2023.

Acute Hospital Care at Home initiative

The Acute Hospital Care at Home initiative allows hospitals to expand their capacity by providing inpatient care in an individual’s home. The program was extended through December 31, 2024.

Audits are already happening and are expected to increase. The Office of Inspector General (OIG) Active Work Plan Items reflect OIG audits, evaluations, and inspections that are underway or planned. Audit topics include telehealth services and claims, use of remote patient monitoring services, state survey agency oversight of nursing home emergency preparedness, use of antipsychotic drugs in nursing homes, enforcement of nursing home staffing standards, IRF nationwide audit, the accuracy of falls reporting in home health OASIS assessments, nationwide review of hospice beneficiary eligibility, availability of behavioral health services, and more.

In addition, CMS announced a SNF 5-Claim Probe and Educate Review requiring Medicare Administrative Contractors to perform a 5-claim probe and educate medical review on every SNF in their jurisdiction in an effort to ensure correct billing practices under the Patient Driven Payment Model (PDPM) by all SNF providers that bill Medicare and prevent future improper payments.

Guidance for the Expiration of the COVID-19 Public Health Emergency (PHE) (cms.gov)

CMS Fact Sheet: Waivers, Flexibilities, and the Transition Forward from the COVID-19 PHE

CMS FAQs re. End of COVID-19 PHE

CMS Waivers, Flexibilities, and the Transition Forward from the COVID-19 Public Health Emergency | CMS

Fact Sheet: COVID-19 Public Health Emergency Transition Roadmap | HHS.gov

Letter to U.S. Governors from HHS Secretary Xavier Becerra on renewing COVID-19 Public Health Emergency (PHE) | HHS.gov

CDC: Stay Up to Date with COVID-19 Vaccinations

HHS Renews Public Health Emergency Through May 11 (AOTA)

Millions Could Lose Medicaid Coverage When the PHE Ends (AOTA)

CMS Adds New Codes to Telehealth List for Remainder of PHE (AOTA)