August 3, 2020

Volume X, Number 216

July 31, 2020

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CARES Act: Telehealth Allowed for Hospice Recertification/Face to Face

In the CARES Act, passed last night, 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.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 87


About this Author

Brian M. Daucher Sheppard Mullin Law Firm Orange County Business Litigator

Brian Daucher specializes in business litigation with emphasis on contract, health care, and intellectual property disputes. Mr. Daucher has represented clients in a wide range of industries including technology, consumer products, fiduciary and banking services, food and alcohol, health care, and energy.

Key Experience

  • Won $16 million arbitration award against Dentsply international for willful trademark infringement.
  • Defeated $66 million earn-out claim by seller brought against major sports clothing and equipment manufacturer.
  • Won $...