In the CARES Act, passed March 26, 2020, section 3706 allows hospices to conduct recertifications including face to face visits using telehealth “during the emergency period.”

Trump declared a national emergency on March 13, 2020, but governing law allows the Secretary of HHS to extend the “emergency period” retroactively to the beginning of the emergency, potentially as early as January 31, 2020, the date President Trump halted flights from China.

It is worth noting that section 1135 of the Social Security Act gives the Secretary broad waiver power during national or local emergencies to waive almost any requirement of the vast regulatory scheme (with or without an act of Congress).  So if providers have been unable to timely complete recertification, or have faced any other circumstances precluding full compliance, hospices should still continue to bill for rendered services.

In short, hospices should do whatever is necessary in real time to care for their patients.  Regulatory compliance should be followed where possible, but the inability to do so should not necessarily be deemed a reason not to provide services.

Hospices can advocate for any additional waivers later.

Thanks to all hospices for their services to our loved ones during this crisis.

As you are aware, things are changing quickly and there is no clear-cut authority or bright line rules.  This is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the Covid-19 pandemic.