Department of Labor revises regulations that implemented the FFCRA paid sick leave and expanded family and medical leave provisions

Background

The Families First Coronavirus Response Act (FFCRA or Act) requires certain employers (generally those who employ fewer than 500 employees) to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The Department of Labor’s (Department) Wage and Hour Division (WHD) administers and enforces the new law’s paid leave requirements. These provisions apply from the effective date through December 31, 2020. Under the FFCRA, health care providers and emergency responders may be excluded by their employer from emergency paid sick leave and/or expanded family and medical leave.The Department of Labor issued its initial temporary rule implementing provisions under the FFCRA on April 1, 2020. In implementing these provisions, the DOL adopted a broad definition of health care provider. See APTA’s April 3, 2020 story. On August 3, a New York federal court judge invalidated several pieces of U.S. Department of Labor guidance on limitations of the Families First Coronavirus Response Act. The DOL guidance provided avenues for employers to deny paid time off mandated in the act to certain employees and in certain circumstances — one such exemption being an employee’s status as a “health care provider.” In the ruling, the judge declared the provisions invalid, declaring that the DOL guidance exceeded its scope of authority. The act’s paid time off and family leave provisions apply to employers with fewer than 500 employees On September 11, the U.S. Department of Labor’s Wage and Hour Division posted revisions to regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act. The revisions made by the new rule clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions, in light of the U.S. District Court for the Southern District of New York’s August 3, 2020 decision that found portions of the regulations invalid.To summarize, the revisions do the following:

  • Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
  • Reaffirm and provide additional explanation for the requirement that an employee must have employer approval to take FFCRA leave intermittently.
  • Revise the definition of “health care provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
  • Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
  • Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

The revisions to that temporary rule will become effective immediately upon publication in the Federal Register. 

What this means:

As noted above, DOL has amended the definition of health care provider for purposes of the Families First Coronavirus Response Act emergency paid sick leave and expanded family and medical leave provisions; DOL adopted a revised definition of health care provider for purposes of the employer’s optional exclusion of employees who are health care providers from FFCRA leave. DOL’s revised “health care provider” definition is clear that employees it covers must themselves must be capable of providing, and employed to provide diagnostic, preventative, or treatment services or services that are integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care. PTs and PTAs were considered health care providers under the previous DOL regulations on FFCRA (issued April 1, 2020). Under the newly revised DOL regulation, PTs and PTAs employed to provide health care services fall under the definition of health care provider whose employers may elect to exclude from taking expanded paid leave or emergency sick leave under the FFCRA. Note: The revised definition of health care provider as described above applies only for the purpose of determining whether an employer may elect to exclude an Employee from taking leave under the FFCRA [Emergency Paid Sick Leave Act and/or the Emergency Family and Medical Leave Expansion Act]. This definition does not otherwise apply for the purposes of the FMLA. Nor does it identify health care providers whose advice to self-quarantine may constitute a qualified reason for paid sick leave under FFCRA section 5102(a)(2).

Questions can be sent to advocacy@apta.org

APTA Answers Questions Taxes Related on CARES Act Relief Funds

APTA recently discussed the position of the IRS related to the CARES Act Provider Relief Funds. APTA stated that these funds are considered taxable income. The following is from the HHS provider relief FAQs that were just posted on July 13, 2020.

May a health care provider that receives a payment from the Provider Relief Fund exclude this payment from gross income as a qualified disaster relief payment under section 139 of the Internal Revenue Code (Code)? (Added 7/10/2020)

No. A payment to a business, even if the business is a sole proprietorship, does not qualify as a qualified disaster relief payment under section 139. The payment from the Provider Relief Fund is includible in gross income under section 61 of the Code. For more information, visit the Internal Revenue Services’ website at https://www.irs.gov/newsroom/frequently-asked-questions-about-taxation-of-provider-relief-payments

Is a tax-exempt health care provider subject to tax on a payment it receives from the Provider Relief Fund? (Added 7/10/2020)

Generally, no. A health care provider that is described in section 501(c) of the Code generally is exempt from federal income taxation under section 501(a). Nonetheless, a payment received by a tax-exempt health care provider from the Provider Relief Fund may be subject to tax under section 511 if the payment reimburses the provider for expenses or lost revenue attributable to an unrelated trade or business as defined in section 513. For more information, visit the Internal Revenue Services’ website at https://www.irs.gov/newsroom/frequently-asked-questions-about-taxation-of-provider-relief-payments

Provider relief fund FAQs: https://www.hhs.gov/sites/default/files/provider-relief-fund-general-distribution-faqs.pdf

Please note: HHS continues to update the Provider Relief Fund FAQs. Please review them on a regular basis. 

Questions?  Please reach out at advocacy@apta.org 

Outpatient therapy furnished via telehealth can be reported on institutional claim during COVID-19 PHE

CMS has announced that outpatient therapy furnished via telehealth can be reported on institutional claim during COVID-19 PHE in its updated coronavirus waiver FAQs.

CMS has updated it’s coronavirus waivers FAQs to add a new section on outpatient therapy and telehealth. Please find below the 3 new FAQs:

  1. Question: Can outpatient therapy services that are furnished via telehealth and separately paid under Part B be reported on an institutional claim (e.g., UB-04) during the COVID-19 PHE? 

Answer: Yes, outpatient therapy services that are furnished via telehealth, and are separately paid and not included as part of a bundled institutional payment, can be reported on institutional claims with the “-95” modifier applied to the service line. 

This includes:

  • Hospital – 12X or 13X (for hospital outpatient therapy services);
  • Skilled Nursing Facility (SNF) – 22X or 23X (SNFs may, in some circumstances, furnish Part B physical therapy (PT)/occupational therapy (OT)/speech-language pathology (SLP) services to their own long-term residents);
  • Critical Access Hospital (CAH) – 85X (CAHs may separately provide and bill for PT, OT, and SLP services on 85X bill type); 
  • Comprehensive Outpatient Rehabilitation Facility (CORF) – 75X (CORFs provide ambulatory outpatient PT, OT, SLP services);
  • Outpatient Rehabilitation Facility (ORF) – 74X (ORFs, also known as rehabilitation agencies, provide ambulatory outpatient PT & SLP as well as OT services); and
  • Home Health Agency (HHA) – 34X (agencies may separately provide and bill for outpatient PT/OT/SLP services to persons in their homes only if such patients are not under a home health plan of care).

New: 5/27/20

  1. Question: Can therapy services furnished using telecommunications technology be paid separately in a Medicare Part A skilled nursing facility (SNF) stay? 

Answer: Provision of therapy services using telecommunications technology (consistent with applicable state scope of practice laws) does not change rules regarding SNF consolidated billing or bundling. For example, Medicare payment for therapy services is bundled into the SNF Prospective Payment System (PPS) rate during a SNF covered Part A stay, regardless of whether or not they are furnished using telecommunications technology. Therapy services furnished to a SNF resident, whether in person or as telehealth services, during a non-covered SNF stay (Part A benefits exhausted, SNF level of care requirement not met, etc.) must be billed to Part B by the SNF itself using bill type 22X, regardless of whether or not they are furnished using telecommunications technology.

New: 5/27/20

  1. Question: Can outpatient therapy services be furnished and paid separately for patients receiving Medicare home health services? 

Answer: No. For patients under a home health plan of care, payment for therapy services (unless provided by physicians/non-physician practitioners) is included or bundled into Medicare’s payment to the HHA, and those services must be billed by the HHA under the HHA consolidated billing rules. Patients should first be assessed for whether they are eligible to receive therapy services under the home health benefit prior to initiating outpatient therapy services. Receiving therapy services under the home health benefit may be in the best interest of the patient as there is no applicable coinsurance, copay, or deductible for such services (with the exception of negative pressure wound therapy using a disposable device), and the patient may also have a need for skilled nursing services, home health aide services, or medical social services under the home health benefit. However, if the patient is not eligible for home health care, including when it is not possible to provide in-person therapy services in the patient’s home (i.e., the patient is not under a home health plan of care), then outpatient therapy furnished via telehealth under Part B could be an appropriate alternative and separately billed, assuming all applicable requirements are otherwise met.

New: 5/27/20

Begins on page 70: https://www.cms.gov/files/document/03092020-covid-19-faqs-508.pdf

Questions?  Reach out at advocacy@apta.org 

APTA Releases Guidance on CARES Act

The American Physical Therapy Association (APTA) recently released guidance detailing known and anticipated actions as a result of the CARES Act, recently passed into law by Congress and President Trump. In addition to the $2 trillion stimulous package, the Act also created many new policies and flexibilities for PTs and PTAs.

Click here to view full details.

CMS Guidance Allows PTs in Private Practice to Provide Services Via Telehealth

New guidance issued by CMS now allows PTs in private practice to make full use of telehealth with their patients under Medicare Part B. Previously, only limited e-visits and other “communication technology-based services” were allowed; the change now includes PTs among the health care providers permitted to bill for real-time face-to-face services using telehealth. This policy change follows a robust advocacy campaign by APTA members and staff.

Read More

CMS Now Allows PTs to Perform Maintenance Therapy Under Medicare Part B

To increase the availability of needed health care services during the COVID-19 PHE, in response to suggestions by stakeholders, CMS will allow PTAs and OTAs to perform maintenance therapy services under Medicare Part B for the duration of the public health emergency.

CMS states it will permit the PT or OT who established the maintenance program to delegate the performance of maintenance therapy services to a PTA or OTA when clinically appropriate.

Proposed IRF Rule Keeps It Simple: 2.9% Increase, Reduced Administrative Burdens

Acknowledging that the COVID-19 pandemic should be the focus of attention, CMS released a proposed rule that makes no changes to quality reporting.
CMS fact sheet

The big picture: A 2.9% increase and continued efforts to lessen administrative burden.
In light of rapid changes being made to Medicare in response to the COVID-19 pandemic, the U.S. Centers for Medicare & Medicaid Services issued a pared-down proposed rule for inpatient rehabilitation facilities that sticks to the basics — including a 2.9% payment increase and the elimination of physician evaluations within the first 24 hours of patient admission. The 2.9% increase represents an estimated increase of about $270 million in payments to IRFs. 

In a fact sheet on the proposed rule, CMS writes that it’s meeting a statutory obligation to update Medicare payment policies annually, but the COVID-19 pandemic demands widespread attention and “CMS has limited annual IRF rulemaking required by statute to essential policies.” 

The final rule would go into effect on October 1, 2020. APTA will provide comments on the proposed rule before the June 15, 2020, deadline.

Also notable in the proposed rule:

  • No changes to quality reporting. For the first time in years, CMS will leave IRF quality reporting measures untouched from what was set in place in the previous year.
  • Changes to the geographic wage index, and a limit on decreases. The proposed rule adopts geographic delineations proposed by the Office of Management and Budget to determine whether a provider is considered a rural or urban facility — a key element in determining the IRF wage index. CMS hopes to accompany that change with a 5% limit in FY 2021 in any decrease in a facility’s wage index compared with its wage index for the prior fiscal year to help providers adapt to the revised OMB delineations. 
  • Non-physician providers allowed to perform coverage service and documentation. CMS is proposing that non-physician practitioners — typically defined by the agency as physician assistants, nurse practitioners, and clinical nurse specialists — be permitted to perform duties currently reserved for physicians, as long as those duties are within the practitioner’s scope of practice established in state law. 
  • Flexibility around physician evaluations. Although the proposed rule would lift the requirement for a physician evaluation within the first 24 hours of admission, IRFs would still have the ability to conduct a visit in that timeframe if conditions warrant. 
  • Another call for comments on reducing administrative burden. CMS accompanies almost every proposed rule with an invitation for comment on changes that could be made to reduce unnecessary paperwork and other administrative burdens — an invitation that APTA takes up at every opportunity.

APTA Advisory: TRICARE Manual Updated to Recognize PTAs as Authorized Providers

Don’t forget to use the CQ modifier if more than 10% of a service is furnished by a PTA.

TRICARE, the health insurance system used throughout the military, announced that it has officially revised its policy manual to recognize PTAs (and occupational therapy assistants) as authorized providers, outlining the rules and requirements governing assistant qualifications, scope of practice, supervision, and reimbursement. 

Now it’s up to TRICARE contractors to do the same within approximately 30 days.

As reported earlier, beginning with date of service on April 16, PTAs are recognized as authorized providers under TRICARE and thus eligible for reimbursement for covered services rendered to TRICARE beneficiaries.

Take note: The CQ modifier must be appended to the claim when more than 10% of an outpatient physical therapy service is furnished by the PTA. Check out APTA’s Quick Guide to Using the PTA Modifier.

The presence of the modifier shouldn’t impact claims processing. However, if claims are denied, they may need to be resubmitted if the claims are sent to contractors before they fully implement the change. 

APTA Advocacy Win For CMS Coding Changes

Advocacy efforts by APTA and its members helped CMS and its coding contractor reverse earlier changes that complicated (and sometimes thwarted) a PT’s ability to provide efficient, effective care.

What Happened

Prior to the latest change, reimbursement would be denied if, for example, code 97530 (therapeutic activities) was paired with 97116 (therapeutic procedure) without use of the 59 or applicable X modifier. Those code pairings have been eliminated. Now PTs working in private practice and institutional settings can pair many codes without adding the 59 or applicable X modifier. For a complete list of edit changes go to APTA’s National Correct Coding Initiative webpage .

Which Payers These NCCI Edit Changes Apply to

Medicare and Medicaid programs follow CMS’ NCCI procedure-to-procedure edits. Additionally, most insurers also follow the NCCI PTP edits. APTA encourages providers to use the information in this article and found on the CMS PTP Coding Edits webpage to communicate with commercial payers regarding these edit changes.

Click here to view the full article