Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

Meg Pekarske Hello, welcome to Hospice Insights, The Law and Beyond, where we connect you to what matters in the ever-changing world of hospice and palliative care. COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare Appeals. In today’s episode, your hospice team shares insights on operationalizing recent government guidance for hospices facing Coronavirus obstacles. We discuss how to begin using virtual visits, telehealth and the practical impacts of the Medicare appeal waiver.

Hospice team, hello. Thank you for joining the podcast today. I wanted to sort of kick it off by first, I think, you know, all of our listeners and, and us as well, this is a constant changing and evolving area, and so ah in preparing for this podcast and I, I think our overall team goal in all of our resources is to not just give you the latest news, but really try to operationalize that. Because we understand the hospice business and so really using the hospice lens to read everything that’s going on and then doing, taking the next step and thinking about how do you implement in this your business, which is why we ah kicked off this series by being how-to because we’re gonna challenge ourselves to really think through how you can use these daily changes ah to hopefully ease the burden on your staff and sort of keep, keep the business running. And so that is our charge to ourselves and I think how we can be of service to you and the industry. Bryan what--

Bryan Nowicki Yeah. Well, thanks, thanks Meg for all this and I do agree with you, this is very important to keep in touch with our clients and the hospices as things are going on and we got such a great ah, ah response to the first part

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare Appeals

March 27, 2020

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

of this how-to series. People are really hungry for information, as our we, and, and yeah, we wanta turn that information into stuff you can use, not just the ah daily update of here’s, here’s the latest news report, but let’s ah, like you’d mentioned initially, Meg, let’s operationalize this and find some solutions for what you’re facing.

Meg Pekarske And I think, we don’t have all of the answers, right? And even if we did have answers, they could change tomorrow. But I think that, that is our challenge to ourselves, because that is where, I think, we can be of service ah to the industry and so, so um, and by now, probably most listeners have heard about ah the use of virtual visits and when we use the term virtual visits, and there’s a distinction played out throughout this podcast between virtual visits and telehealth and there’s a legal distinction there, because telehealth is ah legally defined as something ah that, that Andrew is gonna walk us through. But when we say virtual visits, this is ah much more relaxed than ah what we consider telehealth to be. This could be you’re just calling someone on the phone, or it could also be using ah some type of video, whether it be Zoom for Healthcare or Skype or something like that, where there’s a video component to us, to ah what it is you’re doing. So um I think that, that what CMS has indicated ah to NHPCO and I think it’s available to, to ah, the world publicly is that CMS said there’s nothing explicit in the conditions of participation that indicate how many or what visits ah, or how visits need to be done. Ah, so they said that there is flexibility in the regulations as it’s written now for hospices to um, do visits in any number of different ways. And so um, so Bryan--

Bryan Nowicki Yeah, and I think ah, I think CMS got it right when it was describing those regulations about the conditions of par--, participation and visits. There’s a lot of um, undefined terms in there that you can play around with a bit. So it is correct to say that those CAHPS don’t say how or how often direct physical visits are made and they said that in, in identifying the flexibility that hospices have.

So that’s pretty encouraging that they’re saying there is flexibility built into that. It does play around with language like what is an assessment. Ah, what is a direct clinical visit. Um, I don’t think the word, the regulations use the term in person which is probably where CMS saw the flexibility. So it looks like CMS is going to make good direction in allowing the flexibility. There’s still a bit of vagueness in there but it might be vagueness that hospices can work with when they’re saying yeah we did do an assessment and we can do an assessment via phone because this is what an assessment required and then you can document how you’re still performing that assessment even though it’s ah, a virtual visit. So I, I think ah, they’re kinda opening the door but it’s not ah, but, but a door still exists, or a passageway still exists. You still gotta fit within this broader realm of what is required in the CAHPS. So it’s not a free-for-all but, but you can document that.

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

Meg Pekarske Well and I think that, that again in the spirit of operationalizing this, you know, if I were a hospice I wouldn’t say okay now everything for eternity is now done virtually. Um, I think what is important to emphasize and is sort of the funnel down. Ah, I don’t know why I always go back to the funnel reference here but funneling down is you per the care plan meeting, you can be meeting the patient needs and that’s what we need to be able to demonstrate. And so um, we can meet patient needs in any number of ways and so I think that that’s the lens by which we have to sort of look at everything so how are we being, insuring that we are meeting patient needs. And so um, I think there is going to be flexibility for ah, you know, in how we comply with this during this period.

I think for us as lawyers and as advocates for the industry, we’re thinking four years from now where we’re dealing with an audit and there’s a look back and someone’s saying hey, you know, you didn’t see this patient in person for fourteen days that’s not okay. We want to be able to explain, we met the patient’s needs, we um, by doing X, Y and Z. The care plan reflected what we were doing. We met the care plan and by the way here is what CMS said at the time about how they interrupted the regulations and so, so I think we still need to be looking at things, how do we best meet the patient needs given the constraints we have. Right now as we’re early into this pandemic, right now there’s the biggest challenge for hospices have that access to patients whether that’s in facilities or elsewhere.

I think, so there could be a role for virtual visits there and but I think the second wave may be if ah, our staff is getting sick and then we have staffing needs and that’s another reason why we might need to rely on virtual visits but I still think we wanta make sure that our, our nursing team is identifying whether you think it is essential, should your visit in person and I think as we talk about preparing for telehealth, if there is ah, um, video method by connecting with your patients instead of just via phone, I think especially with nurses that can be a very helpful to be able to see the patients and not just rely on, you know, what it is they may be saying or for patients with dementia and what not that can’t necessarily verbalize, I think thinking about what virtual visits can mean, ’cause it can mean telephone, but it can be video as well. And so Bryan I know you wanted to add something.

Bryan Nowicki Yeah I, I think we can look at CMS’ use of the term flexibilities to invite some creativity into this area. But Meg, you’re right and CMS is very explicit about this. They are holding fast as they should to their description of the requirement that hospices provide services that meet the needs of the patient. So I think exercising that creativity but in your documentation you show how this creative solution through a virtual visit of some sort or through using a, a caregiver to interface with a patient while you’re outside of the room, how that was able to meet the patient’s needs and that could be different for different patients. But as long as you tie that thread through

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

the creative solution to meeting the patient’s needs, you’re gonna have that documentation in place. So as you mention Meg in, in three, four years or whenever you may get audited and we’re saving this CMS email, we could say we did exactly what CMS suggested providers do and we documented it the right way.

Meg Pekarske Yeah, so who’s the artist Bryan. I’m supposed to be the one that’s using the word creativity all the time.

Bryan Nowicki: Yeah.

Meg Pekarske But you’re, you’re bringing in creative in, in ah, um, the, the healthcare setting. I love it.

Bryan Nowicki: It’s trying times. It kinda brings out ah, the artistic side of people I think.

Meg Pekarske: Yes. Okay, that’s, I, I think virtual visits, you know, you gotta be able to show you’re meeting the medical needs of the patient and ah, I think if we can use a video means of communicating with patients, I think that’s always preferable, again if at all possible thinking about um, when an in person visit may be essential. Ah, and then as Bryan said really documenting what it is that you um, are doing and, and when I say document both the visit itself but have the care plan reflect what you’re doing because you need to show you provided services in accordance with the care plan. So um, I think those things are, are very important but um helpful ah, that that was clarified ’cause I think a lotta folks were moving in that direction but is helpful that CMS has recognized this um, this flexibility that exists in the regulation.

So ah next um Andrew let’s talk about telehealth um and there’s two, two things we wanta cover in telehealth and my guess is this is not gonna be the first time we talk about this or the last on the, it is the first time but not the last time that we talk about telehealth on this um, COVID hospice how-to series. So one, is using telehealth ah, for face-to-face visits and the second is using telehealth for ah, physician or any key available services that are medically necessary that our, our staff may provide.

And so let’s start with the face-to-face. So this Andrew is not finalized because as of the recording of this, the bill has passed the Senate but it hasn’t passed the House yet. So um tell us what this language as it currently says in the regulation, what does it say? Oh I mean in the statute I should say.

Andrew Brenton Thank you Meg. Yeah so the bill that we’re talking about here is the Coronavirus Aid Relief and Economic Security Act otherwise known as the CARES Act. And as you mentioned there is a provision in this federal bill that would explicitly allow hospice physicians and hospice nurse practitioners to conduct the face-to-face encounter for research um, “via

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

telehealth as determined appropriate by the Secretary” and this applies to the duration of the public health emergency.

Um, a couple things to note here. So the term telehealth that’s being used in this, in this um, statutory text it’s, it’s ah, modified by as determined appropriate by the Secretary. So it’s not explicitly tied to what people normally consider or think about as telehealth which is a part, a Medicare Part B concept. So telehealth is very heavily regulated through Medicare Part B and there are all sorts of payment restrictions attached to that. As this text reads ah, that would not necessarily be the case for telehealth ah, visits used to do the face-to-face encounter. Rather, the restrictions on that to the extent there are any would be “determined appropriate by the Secretary.” So, you know, there’s, there’s a lot kinda to be determined here and as you mentioned the Senate has passed this Bill. The last I read was that the House was expected to take it up tomorrow and then hopefully it will get over to the President for his signature, you know, later this week, sometime this weekend. Um, so that’s kinda the timeframe we’re looking at here.

Meg Pekarske Let me sort of paraphrase what you said is that it does indeed look like we are going to be given ah, the ability to do the face-to-face visits via some form of telehealth. What form of telehealth and what requirements apply to that has not been defined and I think that the text is written very specifically to potentially allow the Secretary to have something that is more flexible than perhaps the, the Part B requirements which we’re gonna talk about next.

Andrew Brenton Exactly.

Meg Pekarske And so I think it, and the face-to-face visit is an administrative visit. It is not independently and separately billable and so um, and I think it would make sense that the Part B billing restrictions that the Secretary could define them as all of these Part B billing requirements apply since it is truly an administrative visit versus a medically-necessary service as, you know, that’s considered from a payment ah, perspective and so I, I think that and again we don’t know what the Secretary’s gonna say but perhaps it can just be using Zoom for Healthcare or Skype or something that um, would allow for video capability on a real-time basis ah where the NP or physician could be interfacing with the patient. But I think that’s what we’re-

Andrew Brenton Yeah. Exactly.

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

Meg Pekarske And so um, and I think, and a note, and we can post this on um, our hospice law library page, but the um, ah, there has been a loosening up of the types of video conferencing or video ah interface that’s permitted from a HIPPA perspective and so while you can’t use public facing, you know, Facetime or whatever, like, what was it, Facebook Live.

Andrew Brenton Facebook Live, Tic Toc, things that are yeah, public facing, just as you describe it.

Meg Pekarske Yeah, you can’t use that, but you can use things like Skype and face-to-face, or FaceTime, Zoom for Healthcare, and I guess a word about what it means and hearing and talking with our clients, is that while Skype can be a nice option, but folks who have used that in other um, for other purposes have run into challenges of not having enough phone lines or other, or like connectivity issues and so when you’re used a paid product there’s probably going to be more um, ah, surety in terms of your ability to, to use that. So I think that’s gonna be something that you lead people with is right now people should start thinking about what platform they wanta use to do, whether virtual visits ’cause we, we really think whenever possible we wanta do a video ah with patients but also as we move towards this telehealth, what platform do you want to um, ah, be using.

And I know again talking with clients need for healthcare seem as though you could get up pretty quickly running with this like potentially within you know forty-eight hours or something like that. So um, I’m sure those other platforms also allow for pretty immediate um, access. So here I’d ask is it more [inaudible] but it’s, it’s, I think everyone is very confident that, that we’re gonna be able to do face-to-face visits with our patients remotely. What remotely means is gonna be further defined but we expect we’ll probably allow for ah, you know FaceTime or, or these other remote video access things that OCR has said is okay.

So but, but let’s talk about ah, the billing for physician visits um and NP. Importantly, only NP if they are the patient’s chosen attending physician but those um visits ah which right now before any of the COVID ah pandemic started, those kinds of visits if they’re medically necessary can be billable, they must be included on hospice’s claim so it’s billed by through Part A but we are using essentially ah, the billing ah, standards and evaluation management codes that Part B providers would use. And so, so let’s explore Andrew what we know about hospice’s billing ah via telehealth for ah medically-necessary visits that they’re hospice physicians or ah, they’re NPs who again as a designated attending um, may perform. So and again we’re not here to give you, talk for two hours about all of the nuance about telehealth.

Um, what we wanted to tip things off on as I am executive or administrator, is this even possible for me to do billable visits via

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

telehealth. And so through that lens, let’s talk about this Andrew. So what’s the first thing that we would want or need to do in order to um, be eligible to do telehealth visits that are billable.

Andrew Brenton So yeah. The first kinda, um, thing that you would want to do or consider um, has to do with the type of provider doing the service, the distance site provider. So physicians and NPs um are ah permissible ah provider types for Part B billing of Medicare services and that wasn’t affected by, by this waiver, that kinda opened up telehealth.

Meg Pekarske For purposes of hospice billings, those are two individuals who we can bill for their services in our Part A claim. So there’s a match up there so --

Andrew Brenton Yeah.

Megan Pekarske So Part B and Part A, what hospices can do because obviously everything to date on telehealth is focused not on hospice because we’re not a Part B service. It wasn’t something we thought of doing but we do have this wrinkle ah, this fairly nuance wrinkle in hospice about how we can bill for these types of Part B services through the Part A hospice benefit. And so, so there’s a match up on the providers, that, that

Andrew Brenton Yeah.

Megan Pekarske We have, we may wanta go with and who can ah, perform telehealth visits. So we have the who right there um--

Andrew Brenton And I’ll just add one thing to the who, ah, because I, I think a lot of um, hospices are gonna wanta have these practitioners doing the telehealth visit from their home and given that the COVID-19 pandemic. So one thing to keep a note here is that CMS is telling you that’s okay but you wanta go in and make sure that you’re Medicare provider enrollment information on your 855 is up to date, that it reflects the, the practitioner’s home as the location from which the services are being provided. Um, and CMS has set up a, ah, some hotlines through the Medicare Administrative Contractors so you can call those ah, ask through these hotline numbers and CMS will um kinda expeditiously process the, the, the updated information.

Meg Pekarske Perfect. So, so step one if I, I’m a hospice and thinking about can I do this, there is a capability to do that, that seems like a very low bar ah, having our practitioners update their 855 Part B enrollment forms to include their hos-, or their home as a place from which they may be providing these telehealth services. So and we can link to that on our um, hospice ah, resource center, ah and we’ll be doing forthcoming, probably not until this legislation is passed ah, ah, tool for hospice toolbox ah resource on, on this. But so, so that seems very doable Andrew. So step one seems doable.

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

Andrew Brenton Yep.

Meg Pekarske So what’s step two?

Andrew Brenton Step two has to do with what in telehealth is known as the originating site which is a fancy way of saying the location of the patient who is receiving the telehealth services. So historically this was a very limited set of circumstances. Essentially it had to be in a rural area and it had to be in a facility that was listed in the Medicare statute. So with the current waiver that we’re operating under um, this is all expanded. Essentially, CMS, HHS is saying doesn’t matter where the patient is located, we want the patient to receive telehealth services now given the pandemic. So we are um, waiving temporarily these originating site restrictions. So that’s--

Meg Pekarske For hospice patients that means ah, it, we can do telehealth visits so our physician or NP could be at their own personal residence and doing a telehealth visit with a patient who is also in their own personal residence.

Andrew Brenton Yes.

Meg Pekarske Prior to this pandemic, that was not possible.

Andrew Brenton Exactly.

Meg Pekarske Given the restrictions and how telehealth was defined and operationalized ah through billing guidance. So that was not possible but now it is something with all these waivers during this COVID-19, um, pandemic is possible. So and, and also obviously a patient could be in a skilled nursing facility or assisted living facility or hospital, essentially wherever the, our patient is located that there’s been a relaxation of the telehealth requirements and that we will be able to do a telehealth visit with them. So that is not a, it doesn’t sound like that is a barrier.

Andrew Brenton Exactly. That’s exactly right.

Meg Pekarske So, so physician could be at home, patient could be at home, um, so ah, where the patient’s located, not a barrier. So that, that was step two we had to consider um and so okay, green light so far. What, what’s, what’s step three?

Andrew Brenton So step three um related to step two has to do with the list of approved um procedure codes that CMS says you can bill these services as via telehealth and get paid for. So we just talked about there’s this waiver that relaxed the sort of requirements around where the patient has to be located to get the services. Now this list of approved telehealth services, CMS has not updated that. This is a document that is updated annually to the position C Schedule so that occurred well before the pandemic. Yet, we still have this list that now doesn’t include procedure codes for some of these varied visits that are now allowed under the waiver. So for example, a home visit,

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

that has a variety of E&M codes that you use to bill for that, those aren’t included in this list because even though CMS is saying you can now bill for these services, they haven’t updated that list.

Meg Pekarske Let’s, let’s pause there ’cause you’re sayin’ a lot of important things here and so, so the codes, the evaluation management codes, like embedded in these codes are sort of where people are located. Right, you have different codes based on where patient is located and stuff and so is what you’re saying that those evaluation management codes, they don’t communicate, but there’s no codes that are currently authorized for telehealth that allow for a patient to be at their home getting this kind of visit because obviously as you said before, these, seeing someone in their home was not an approved ah location for telehealth. But now it’s sorta the cart before the horse or whatever I mean ’cause ah, you know, everything’s so fast moving. It does seem that their intention is since they, they said you can do telehealth when someone is in their home, they just haven’t updated the codes listing to say this is an approved location. But obviously the expectation is that why would you have a waiver and allow this but then not adopt a billing code, you know, have a billing code that--

Andrew Brenton Yeah.

Meg Pekarske Reflects that. So, so, so um, then I guess Andrew what are you suggesting people do. I mean obviously this is, we, I expect at some point these, these codes are gonna get updated but, let’s say again, I’m a hospice executive, what does this mean in terms of can I start doing telehealth now.

Andrew Brenton Well we aren’t hearing that some physicians are going ahead and using for example these home visit codes when they’re providing telehealth services under the waiver. So again the waiver says you can provide physician visits um to the patient’s home via telehealth and get paid for it. So exactly to your point, physicians, some physicians we’re hearing are going ahead and billing for those services using these codes that properly reflect where the patient is located but that as you mention aren’t in the list. So that might be one possibility. Um, we’re also seeking clarification this point and another kinda point to bring up here in this context is under the, this new legislation and CARES Act, um, the HHS Secretary is given much broader authority to essentially waive any statutory Medicare requirement for telehealth. So when that waiver is issued after this, this law is passed and signed by the President, we could see kinda this issue being addressed or at least no longer being an issue ’cause the waiver could essentially sort of not even address. It has to be in this list of services. Um, so I think there, there’s a lot that you know that could be forthcoming, likely will be forthcoming on this.

Meg Pekarske And I wanta make sure I understand um, so I’m gonna throw out an E&M code, 99252. Right now that’s not on the approved list for telehealth because it was before all these waivers. What you’re suggesting is even

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

though that wasn’t on the approved telehealth waiver, whatever hospice was using before for the E&M code, they could attempt to use that code now and you’re gonna talk about a modifier in a second. Um, obviously this is so early on. We don’t know if there’s any been processing problems with that claim form right like ’cause obviously the knack is in process claims via telehealth for this. So I mean we don’t know any of the logistics issues but essentially is that you would use the code you normally would. Why don’t you talk about this modifier is. You would bill whatever is a common code. Like someone’s in a nursing home and it’s an initial visit or something. If you did that under telehealth then you would use that same code? And then what is the modifier that you would add to that?

Andrew Brenton Yeah, the, the place of service code that you would use on the claim when you’re submitting the telehealth service and that’s 02 which indicates to proc--, to the billing processor that the service that the, you know, the underlying E&M code was performed via telehealth. And actually in the vast majority of cases and in the cases we’re talking about here, or the physician or the NP is doing a visit via telehealth, there are no other modifiers. There are certain modifiers that you have to use for telehealth if they’re doing like a store and forward telehealth where a remote physician is sort of evaluating clinical information that um was collected at a different site, things like that do require additional modifiers. Um, additional ah, in addition to the place of service modifier. But that’s not really the case here in the context that we’re talking about.

Meg Pekarske Okay, so um, essentially and again this is fast moving area but based on what we know right now, you would use, you said 02 and then whatever E&M code that you would generally always use. So um, again the, the approved codes aren’t necessarily matching up with the quickly evolving um, waivers and law but, but so, so that was step three. What’s the, what’s the next step? Let me know--

Andrew Brenton The next step has to do with technology. So prior to this pandemic, the technology and I think that you mentioned this at the outset, was a very kinda strict parameters in which you had to provide the services, the technological capabilities you had to use. So it had to be secure, in other words, HIPPA compliant, had to permit two-way real time interaction between the patient and the, the professional and telephones were explicitly not permitted. So a couple things have happened since this. We have this waiver. Um, the waiver opened up that list of technologies to explicitly include telephones if the telephone had that interactive um, you know, real time capability, audiovisual capability.

Second, OCR came out and said you can use these common pub--, or not public facing, ah video platforms such as Skype, such as Google Hangout, SpaceTime, um, and that OCR would exercise its enforcement discretion, um, it would waive penalties for what would otherwise be potentially a HIPPA ah, ah non-compliance. Um, so that sort of where we’re at now.

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

Um, the, I mentioned this waiver that’s likely coming with this next round of legislation. We could see the technology being opened up even further through that waiver. But I think one thing um, even with this sort of expanded list of technologies that you can use, I think hospices are gonna wanta kind of do an assessment, an internal assessment as to the technological capabilities of their caregivers and almost more importantly of the patient and the, and the hospice patient and the family. You know, how many patients have these, you know, iphones that allow sort of a FaceTime app, um, ’cause obviously if you don’t have even this opened up technology then you can’t really do telehealth.

Meg Pekarske And I think that of all the things we talked about, this is um, hurdle might be overstatement but in terms of filtering through who might this be a possibility for. Um, and is, it is gonna be patients who have access to the technology ’cause I think our staff lots of um hospices provide their staff with whether it be ipads or phones or whatever, that they’re, we’re gonna be covered on the, I can do the visit, but the issue’s gonna be, can our patient do that visit. And so I think, you know, one thing to start thinking about and having your nursing or, or you know, the IBT assess like right now seems to be, you know, what percentage of our patients have access to this type of technology whether it be directly through themselves or um with their caregiver ’cause obviously they um have a caregiver whether that be facility staff or, or um, you know, a loved one at home trying to figure out the logistics of this ’cause I think of anything that we’ve explored so far, this is the one that probably needs some bringing out and, you know, testing.

So for example, you know, hopefully facilities would be very accommodating here, like nursing homes are as well know, are restricting visitors but the guidance to nursing homes says hey we should really um, issue guide to have means that, that patient can connect with their loved ones, you know, in spite of these visiting restrictions.

So perhaps working with a facility of a good relationship with and exploring would this be an option for, for them and frankly to the extent we wanta do these virtual visits through a video technology, you know, this is something we wanta explore too even separate from the telehealth and billing for the physician visit. And so I think that would be ah, probably the very first thing. I’d try to get a handle on is one, what platform do I wanta use and two, you know, the patient, are they gonna have access to this technology and when we do schedule these visits, you know, is someone gonna be there that can help the patient with this technology or have the technology and, and be there, ’cause obviously some of our patients are going to have um, you know, real difficulties in being able to use the technology ah, independently and self-sufficiently.

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

So, so that’s probably the biggest hurdle. Any other steps on the short list here?

Bryan Nowicki No, yeah, I think those are kind of the, the main ones that you wanta work through.

Meg Pekarske So and again this won’t be the last time we talk about telehealth but I think this has been incredibly helpful and I appreciate you sharing your, your knowledge and I think as, as folks work through this, it’s probably one of those areas that um, people can reach out to us and we can more in the, the granular level about how to do this. Obviously, we can’t work through all that via podcast but, but we’re a resource and closely following this and I think we have a very good um, understanding of, of how hospices can get this off the ground.

So ah the last thing and this is probably the briefest one because I don’t think we’ve seen a release that we wanted here is um, the Medicare appeals and whether or not those things are working um, ah, the same way it worked. There’s more flexibility there. So um, to recap when the, the 1135 waiver came out there was a general ah, um, statement about flexibility on Medicare appeal deadlines and Bryan do you wanta talk about what that is and um, and then speak to, you know, has the Secretary exercised any, any authority here in terms of relax--, relaxing appeal deadlines?

Bryan Nowicki Sure. When the, when this broad waiver was issued, it included a reference to flexibility with deadlines and other um, um, timelines by which certain events have to take place. So it was very, very broadly worded. And then CMS came out with a factsheet that put a little bit more ah, detail on that, in that it said that there was going to be some flexibility with appeal deadlines. And so that’s about as much detail as we’ve gotten from CMS and of course this is a very significant issue for those hospices who are in the midst of audits. And we’re representing a number of clients who have ah, audits and, and we’re, we’re gearing up for redetermination or reconsideration so those kinds of deadlines are very significant. And so what does it mean when CMS says there’ll be some flexibility. Ah, we’ve been trying to gain some information about that and Erin why don’t you describe some of the efforts we’ve undertaken to try to find out what exactly that kind of a waiver means.

Erin Burns Yeah, thanks Bryan. We have reached out to a couple of the contractors as you mentioned um asking specific questions to get a little bit more guidance as to what the waiver actually means, specifically asking about ah, you know, whether there’s gonna be a blanket waiver issued to providers or do they need to request specific ones. Um, so far the guidance we’ve gotten is helpful to an extent but not super detailed. Um, so for example, we asked whether providers need to request an additional extension and both the [inaudible] that contacted said that no providers can

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

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essentially just submit their appeals late with a statement in there as to why they’re doing so ah, essentially explaining due to COVID-19. Um, so we’re a little concerned about those, about that, that lack of guidance around that. It’s just seems, we’re a little bit leery about relying on that, on that guidance.

Bryan Nowicki Yeah so I, I think that provided some assistance to us and that the contractors at least are going to see a need to give relief but just telling the hospices to put a sentence in their letters about it um, I, I think that you’re still left with a lot of uncertainty. I wouldn’t wanta let a deadline pass without getting out in front of it and saying, writing a letter to the MAC or the QIC saying hey because of COVID we’re gonna be late with this. So don’t assume we’re not appealing, we are.

Ah, we’re just gonna need more time. Ah, and then go ahead and include that, that statement in your appeal submission but I think we also need to be careful of how long of an extension can we have here. Um, is this, can we go five or six months after the deadline or, or six weeks or six days. Ah, so it’s good that we’ve seen some acknowledgment by the contractor on that issue but we’re pressing for more detail and we’re working with industry groups to help press for more details so we know no deadlines are missed and that sorta thing. Meg, you agree with all--

Meg Pekarske Well and, yeah and in the spirit of well what’s the hospice lens here is obviously all of us know hospices have a lot of audit activity unlike other provider groups like nursing homes. And they also have ah, you know, most of these reviewed. Now there is also TPE going on and that has been um industry groups had asked for those to cease. What we’re talking about is that ship has sailed. Right. There’s already been a payment denial and you want to challenge that and the uniqueness with hospice is that so TPE is prepayment but so many of the audits we work with are post-payment and so there’s a specific provision that allows you to halt recoupments.

Ah, if you do an accelerated appeal because I think the government could say hey, you know the appeal deadlines for redetermination, it’s a 120 days or it’s a 180 days. So I don’t need to act on this because this is not that, this is a ways out and you know the, the, hopefully the pandemic will have subsided by that time. But for us everything that we have right now it’s very, very timely because, you know, to the extent people want to keep their cash and halt recoupment. Are you really gonna have time if you get the demand letter now which to Erin your point is that we’re seeing no slowdown in the issuance of decisions. The contractors are meeting their deadlines and they are getting demand letters out there, which then now it’s the hot potato in our hand that we have to do something about this and, and because ah, right now there is um nothing that we can necessarily put our finger on that says yeah this thirty day deadline to um, you know, halt recoupment ah, is going to be waived or extended on a blanket basis. We

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

can talk about these individual waivers but Erin I know you wanted to chime in.

Erin Burns Yeah, just echoing or going off of that. We have seen demands come in for a couple of clients just this week and in our contacts with both the MAC and the QICs that we reached out to they have said that they are not delayed in rendering decisions, issuing demand letters. That they have contingency plans for these types of things apparently. Um, and so expect your appeal decision in sixty days if you would, expect your demand letters to be coming.

Meg Pekarske Yeah, and so you know, who knows if that will continue but that is, I mean they’re saying business as usual but, but again, you would hope that your business may be usual but ours is not.

Erin Burns Um-um.

Meg Pekarske Just need to be thinking about, you know, when we talked about basic tenants, like everything that’s driving this is how can we insure that healthcare providers can enf--, can focus on what is most important right now which is, you know, playing their role in providing care to patients. So Bryan--

Bryan Nowicki Yeah and I, and I, so what we’re working on are some ways to get hospices additional relief. And there’s still some opportunities out there that we’re exploring and maybe worth, worth taking advantage of. So we know that there’s this very broad way for waiver of um, flexibility regarding appeal deadlines. We’re working to try to get some more definition around that. But pursuant to this waiver authority, individual providers can also seek waivers. And so there may be an opportunity to seek a waiver ah, regarding the issuance of a demand letter. Maybe they would waive that issuance and in an appropriate and, and what otherwise is the required timeframe. Maybe they would waive the commencement of a recoupment of an overpayment given the COVID situation and how that’s affecting hospices, so that hospices can focus on patient care and not have to deal with the financial crisis.

So what we’re, what we’re working on now is preparing individual waiver requests that we would submit to CMS, to the MACs, to the QICs, to try to find out this, on this case by case basis can we get some relief while that blanket or more based waiver effort is also underway. We’re trying to hit this from a number of angles given the uncertainty and, and hopefully we’ll get some more certainty and clarity from these contractors and CMS down the road, but we’re not waiting for that. We’re trying to be proactive.

Meg Pekarske Yeah and I think the parting thought here is, you really need to work with your counsel who is assisting you in these appeals because, you know, the information we’re providing the contractors say oh, you know, we’ll give

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

flexibility just tell it was due to COVID but you missed a deadline absolutely would not suggest relying on that. And, and we’re doing everything we can to get clarity on that but also being prepared to, you know, file individual waivers ah, to do that. So this is an area that um, connecting with your legal counsel who’s helping you with appeals or if you weren’t working with counsel before, it’s an area I wouldn’t suggest people sort of write individual waivers on their own because I think there’s a fair amount of strategy behind that and who do you direct it to and all of that so--

Bryan Nowicki And it’s important that it’s one thing to request a waiver. It’s another thing to get it. So it’s not that you just request a waiver and then rely on that and hope things will turn out all right. This request for a waiver needs to be responded to with an acceptance before we would place any reliance on it. It’s just another way to try to prod the government or these contractors into action into taking a position.

Meg Pekarske Yeah, so unfortunately you know it does appear at the moment that business is usual with the contractors and their meeting their deadlines so there is no slowdown. In terms of, if an audit has already been started, there’s not a slowdown in getting those resolved or um, demand letters. But so ah, but hopeful that we’ll get some relief there and we’re not aware of any new audits starting since COVID has started for our hospice clients.

So um, you know, not anecdotal of it and hopefully is some ah, comfort that, you know, the government’s resources and the resources of its contractors are not going to be, you know, focused on ah, new audits on providers. And I think that would be consistent with what they’re doing on the surveyor side of things as well is that there is a um, you know, drawing back from, from routine surveys for, for providers and so um. Erin, I know you wanted to, to add a comment.

Erin Burns Um, yeah, I think that in terms of new surveys it’ll be interesting if anyone has seen one, let us know. We’d be interested to hear that. Um, but I don’t think at this point like Meg was saying, that hopefully things have kinda slowed down in the interim to give providers some relief.

Meg Pekarske Yeah so I think it’s the things you need to watch out for and, and I think this is the parting though here is um, you know. In all of the many, many years we’ve been doing audits even in the best of times, mail gets delayed. It sits on someone’s desk or something like that. This is actually all the, like that could really happen here so if you had a close payment audit, you need to be looking at your mail because those things are gonna come via mail. And um, how are you getting your mail if you have um, you know, a skeleton crew in the office and so I think having some vigilance out there because you can’t see everything through the electronic billing system when you, that there is a UPIC audit or a CERT audit that you’ve had and you’re waiting for results or, or a decision on a redetermination. It’s, it’s

Episode 6: COVID-19 Hospice How-To Series: Insights and Strategies for Telehealth, Virtual Visits and Medicare

Appeals | March 27, 2020 | huschblackwell.com

Speaker Statement

gonna be mailed and you need to make sure you’re looking for that. So um, any parting thoughts ah, as we conclude this for many. Anyone?

Bryan Nowicki Well I mean we’re carefully monitoring all of these things and coming up with ideas about how to address the ever changing set of regulations and waivers and exceptions. So we’re gonna continue this series as long as we need to, to keep everybody informed on these pressing issues. Ah, and if you have something you would like us to address that has kinda been of concern to you, ah, just drop us an email or a note and we’d be happy to take it up on our next podcast which are probably gonna be coming out pretty regularly given how things have changed so quickly.

Meg Pekarske Yeah. Well, you know, thanks to you all. I think this was a great podcast and proud to be part of it. Um, you know, these are, these are difficult times but I think all coming together and you know, finding ways that we can be helpful and ah, you know, it is my goal and I think I, I probably push pretty hard on what do we have to say, how can we be helpful, and not just you know give people information and but really help them use this and to help render business. And I think you know if I do say so myself, we did, we did a good job here and um, hopefully you listening get some nuggets that can be helpful for you. But know that we are trying very hard to both advocate for you all in the industry ah, but also really trying to be thoughtful about how we can be helpful in these really quickly changing times. And as Bryan said, expect more from us and give us ideas.

Every time I talk to a client I ask you know what’s your biggest challenge, what are you doing that’s working and so you know feel free to reach out um, because you know the number one thing about why I do this job is um, clients. And you know I, we love our clients and it, it makes me feel like my life is meaningful to, to feel like I can place a small role in helping you ah, through this. So and I think everyone on our team feels that way so, so it’s not a bother and, and again if we can try to do things for the industry it’s not that we, you need to be individually charged with that or something. It gives us better free resources we can provide to the industry if you let us know what you need. So with those parting thoughts, ah, until next time, stay well.

Female Narrator Well that is it for today’s episode. Hospice Insights, The Law and Beyond. Thank you for joining the conversation. To subscribe to our podcast, go to our website, huschblackwell.com or signup wherever you get your podcasts. Until next time, may the wind be at your back.

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