Government Shutdown Impact on Providers
Due to the failure of Congress to reach an agreement on the Continuing Resolution, the federal government shut down at midnight October 1. This action carries several implications for home health and hospice providers, including the expiration of telehealth flexibilities.
For home health providers, the face-to-face (F2F) encounter can be performed via telehealth in accordance with 1834(m) of the Social Security Act (see 1814(a)(2)(C) and 1835(a)(2)(A) of the Act). However, the originating site and geographic location restrictions under 1834(m) of the Act are no longer waived. Therefore, the use of telehealth for the F2F encounter is extremely limited, and the vast majority of encounters will need to be done in person.
For Hospice providers, the face-to-face encounter must be performed by a hospice physician or nurse practitioner prior to the 3rd benefit period and every benefit period thereafter in accordance with 1812(a)(7)(D) of the Act. Because the statute is silent on the use of telehealth, Congress acted several times to explicitly provide flexibility for the hospice F2F encounter.
The Alliance recognizes the adverse impacts the lack of telehealth flexibilities has on patients and providers. Prior to the expiration of the telehealth flexibilities, the Alliance requested that CMS exercise enforcement discretion related to the required face-to-face encounter until the telehealth waivers can be extended by Congress. CMS has not provided the Alliance with a response, but has issued an MLN Connects Special Edition Newsletter.
The MLN Connects Newsletter outlines the impacts of the shutdown on telehealth, claim processing, and the operational status of Medicare Administrative Contractors. In the newsletter, CMS notes that practitioners who choose to furnish noncovered telehealth services on or after October 1, 2025, may wish to consider providing beneficiaries with an Advance Beneficiary Notice of Noncoverage (ABN)and possibly holding claims associated with telehealth services. It is important to note that this guidance applies only to practitioners. It does NOT apply to home health agencies or hospices.
The Alliance reminds home health and hospice providers that ABNs may not be issued for failure to meet the face-to-face (F2F) encounter requirements. As outlined in the Claims Processing Manual, chapter 30 section 50, home health providers may issue an ABN only prior to furnishing services that are not reasonable and necessary, are custodial in nature, do not require intermittent skilled nursing care, or do not meet the homebound criteria. Similarly, hospice providers may issue an ABN only prior to providing services that are not considered reasonable and necessary or when the beneficiary is not terminally ill.
As providers know, a non-compliant F2F encounter impacts all services provided by the home health agency or hospice that are tied to that particular encounter. Therefore, the Alliance is reiterating to home health agencies and hospices its recommendation that F2F encounters be completed in person. Agencies accepting new patients or continuing to serve patients where a required F2F encounter is performed but is not compliant risk non-payment of all care tied to that encounter. The Alliance is monitoring the situation closely and will update the membership as we learn more.
CMS Issues Contingency Plans for State Survey Agencies
The Centers for Medicare & Medicaid Services (CMS), Quality, Safety & Oversight Group (QSOG) and Survey & Operations Group (SOG) has issued a contingency plan for state survey agencies while the federal government is shutdown.
Survey and Certification Activities Not Affected by a Federal Government Shutdown
CLIA – Clinical Laboratory Improvement Amendments: CLIA Survey & Certification functions are funded through user fees and therefore, are not directly affected by the Federal Government shutdown.
CMS or State Vendor Contracts Awarded on or before September 30th ,2025 Performance under contracts awarded and funded, on or before September 30, 2025, including any exercised option year to an existing contract, will not be impacted by the shutdown.
State-funded surveys: States that are using state-only funding to complete surveys may continue those surveys.
Surveys of Medicaid-only facilities: States may conduct surveys of Medicaid-only provider types during the shut-down as the 1st quarter of Medicaid funding will not be impacted. Medicaid funding remains available and is considered mandatory funding. We advise SA’s to maintain communication with their State Medicaid agency regarding the availability of Medicaid funds for Medicaid-only survey functions.
Hospice Surveys funded through the Consolidated Appropriations Act (CAA) of 2021: Funding provided by – the CAA is also considered mandatory and is not impacted by the Federal Government shutdown. Work funded under these sources should continue.
Excepted Functions During a Federal Government Shutdown
Complaint Investigations Alleging Harm: Complaints that are triaged as credible allegations of immediate jeopardy or harm to an individual should continue to be assessed and investigated according to standard CMS protocols.
Certain Federal Enforcement Actions: Enforcement actions that result from surveys that indicate a finding of immediate jeopardy or actual harm or there is a need to address patient safety.
Revisit Surveys Approved by Exception and Necessary to Prevent Termination.
Immediate Threats to Life or Safety (Emergencies and Natural Disasters)
Orderly Shutdown of Other Tasks
Activities Not Supported During a Federal Government Shutdown
Standard Surveys: Including statutorily mandated surveys such as home health agencies, with the exception of hospice mentioned above.
Certain Revisit Surveys: That are not required to prevent termination of Medicare participation within the subsequent 45 days shall not be conducted. Among those that should not be conducted are revisits (related to establishing regulatory compliance) that would end a per-day civil monetary penalty or denial of payment for new admissions.
Initial Surveys: No Medicare initial surveys shall be performed, unless otherwise permitted with the allowed activities.
Initial Certification via Deemed Status
Certain Complaint Investigations: No Medicare complaint investigations should be performed, except those alleging immediate jeopardy or actual harm to individuals.
Minimum Data Set (MDS) or Outcome and Assessment Information Set (OASIS): No MDS or OASIS activities should be conducted except those necessary to maintain provider reporting
Informal Dispute Resolutions (IDRs): No IDRs or Independent IDRs should be conducted except those associated with complaint surveys resulting in immediate jeopardy.
New CMP-Funded Improvement Projects
In the event of a Federal Government shutdown that persists for more than a few weeks, CMS may communicate further instructions with regard to any special provisions that are appropriate for Survey and Certification activities.
