Post-PHE Hospice Regulation: How Telehealth Rules Will Change

The future of telehealth in hospice care delivery is among the questions swirling around the expiration of the COVID-19 public health emergency (PHE) on May 11.

Certain telehealth flexibilities temporarily implemented during the PHE are sticking around until the end of 2024, while others are rolling away as it expires. Though initially the telehealth waivers weren’t intended to be permanent, they will likely have long-term impacts in hospice.

The telehealth-focused waivers allowed hospices to perform routine home care visits virtually, as well as conduct face-to-face recertification visits.

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These are the most important telehealth issues to watch in a post-pandemic landscape, according to Judi Lund Person, vice president of regulatory and compliance at the National Hospice and Palliative Care Organization (NHPCO).

“These are two different requirements and they have two different trajectories. That’s an interesting point on its own,” Lund Person told Hospice News. “The face-to-face telehealth provision is now part of the larger discussion around telehealth that may get extended past the end of December. The other requirement around hospice routine home care telehealth flexibilities is much more dicey. Patients and providers have been anxious about what that could mean, with a wide variety of questions about it.”


This is the third piece of a four-part series by Hospice News that examines what hospices need to know about the changing regulatory conditions.

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Hospice telehealth a ‘new normal’

While not yet considered permanent, Congress has extended hospices’ ability to do recertifications via telehealth through December 31, 2024. Though many hope to see a further extension, this could mean a return to in-person recertification visits starting the following year.

Telehealth utilization in routine hospice home care, however, will revert back to the pre-pandemic standards.

This means that as of May 11 telehealth encounters will no longer count as routine home care, including care and services provided via remote patient monitoring systems, telephone calls and audiovisual technologies, according to recent guidance from the U.S. Centers for Medicare & Medicaid Services (CMS). Providers can use telehealth as a follow-up tool.

But this doesn’t mean that hospices necessarily have to stop providing telehealth services to patients on that level of care. They still have the option to use telehealth between in-person visits, based on patients’ needs and the hospice organization’s own policies and procedures, according to Katie Wehri, director of home care and hospice regulatory affairs at the National Association for Home Care & Hospice (NAHC).

Many hospices are wondering how telehealth utilization will shape up going forward, she said.

“Some of these regulations are actually more confusing than clarifying for providers in addressing hospice telehealth,” Wehri said. “With the regulation that applies only to patients who are receiving the routine home care level, hospices may think they won’t be able to do these visits virtually anymore, and that’s where it gets very confusing.”

A point of clarity is that hospices should document any follow-up using telehealth communications in patients’ medical records, according to Wehri.

“The expectation after the COVID PHE ends is that routine hospice services will be provided in person,” Wehri said. “However, there is nothing precluding hospices from using technology to have follow-up communications with the patient, the family or their caregivers – as long as the use of such technology does not replace an in-person visit.”

Telehealth’s future remains murky

Providers also need to understand billing and related codes for telehealth reimbursement, particularly for those that also offer palliative and senior care services, says Mollie Gurian, vice president of home based and HCBS policy at LeadingAge.

Palliative care organizations were allowed to file claims related to telehealth service delivery prior to the pandemic, but many limited utilization to telephone calls versus video tools, she added.

“Hospices that provide palliative care should continue to monitor CMS’ list of codes that can be billed when the service is conducted via telehealth, either audiovisual or audio only,” Gurian told Hospice News in an email. “For [instance], with Part B billing, CMS will continue to authorize which codes are telehealth allowable. Other aging services organizations should also monitor these developments.”

Also on the immediate horizon are hospice compliance concerns related to the privacy and security of patient data as well asHIPAA rules. Forthcoming regulatory enforcement around privacy laws is an area that should be on hospices’ radars, according to Lund Person.

The U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) issued a Notification of Enforcement Discretion that permitted the use of various communications during the PHE. These included expanded use of those that were considered non-compliant HIPAA telehealth platforms.

These flexibilities were set to end with the PHE in May, but were recently extended until August 9, 2023, to allow hospice and other health care providers more time to get their electronic systems up to speed.

This means protecting private patient health information will be even more crucial to telehealth compliance, Lund Person said.

“If you’re using non-HIPAA compliant telehealth technology, then you’ll basically have an extra couple of months so that you can get your hospice practices and platforms into compliance,” she stated. “It might have been okay during the public health emergency, but some platforms do not protect private health information.”

Patient data collection is a telehealth regulatory area that could have long-haul impacts in the hospice industry in coming years, according to Wehri. These data would be helpful in giving regulators a wider window into what telehealth hospice care looks like and how patients utilize it, she explained.

“We’re hopeful CMS will collect information on telehealth visits being provided to hospice patients,” she said. “This would allow CMS to have a more accurate picture of the care provided by hospices. It would also help CMS to identify the circumstances under which telehealth visits may be helpful. This would require codes to identify telehealth visits, similar to what is being implemented in home health claims.”

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