Under provisions of the 21st Century Cures Act (Cures Act), providers of Medicaid-funded personal care services (PCS) and home health care services (HHCS) will need to be fully compliant with their state’s electronic visit verification (EVV) systems by January 1, 2023
Congress passed the Cures Act on December 13, 2016. Among other things, in an effort to increase transparency and reduce fraud in connection with the delivery of health care services, this law mandated that states implement EVV systems for all Medicaid-funded (including under waiver programs) PCS by January 1, 2019, and HHCS by January 1, 2023, in each case where services include an in-home visit by a provider. Subsequent legislation extended the deadline for PCS to implement EVV requirements to January 1, 2020. However, the deadline for HHCS remains January 1, 2023, and is quickly approaching.
Providers of PCS and HHCS services should make sure that they are working towards implementing EVV systems in their own business operations in compliance with applicable state requirements, the majority of which also are requiring provider compliance by January 1, 2023
EVV requirements under the Cures Act
EVV refers to the use of electronic systems to verify the utilization and delivery of services provided. To comply with the Cures Act, EVV systems must electronically verify:
- the type of service performed,
- the individual receiving the service,
- the date of service,
- the location of service delivery,
- the individual providing the service,
- and the time the service begins and ends.
PCS and HHCS services subject to EVV requirements are very broad: all services requiring an in-home visit that are included in claims under the PCS or HHCS categories on the Centers for Medicare & Medicaid Services (CMS) Form-64 must comply with EVV requirements, even if they are bundled into different services or furnished through a managed care provider. Medical supplies delivered through the mail or picked up at a pharmacy that do not require an in-home visit for administration or set up are not subject to these requirements, but if a medical supply requires an in-home visit, then EVV requirements apply.
PCS services covered by this rule are provided under:
- the state plan personal care benefit,
- home and community based services waivers,
- home and community based services state plan options,
- self-directed personal care attendant services programs,
- the Community First Choice state plan option,
- and the Social Security Act section 1115 demonstration projects.
HHCS includes any service provided under Section 1905(a)(7) of the Social Security Act or a waiver.
CMS has interpreted “in-home visits” to exclude PCS services provided in congregate residential settings where 24 hour service is available.
State EVV systems need not be uniform
The Cures Act does not require states to utilize any particular or uniform EVV system, but unless a state has requested and received approval for a “good faith effort” exemption, a state that fails to implement EVV requirements will have its Federal medical assistance payments reduced by specified percentages. Enforcement of compliance with EVV requirements on providers will occur at the state level, and providers that fail to comply with the state requirements may face denied claims and other penalties.
In May 2018, CMS issued guidance outlining five major EVV system models that providers may be required to use, depending on the applicable states in which they operate:
- Provider Choice Model (the providers are permitted to select an EVV vendor)
- Managed Care Plan Model (the Managed Care Plans select an EVV vendor)
- State Mandated In-house System (the state agency creates and manages its own EVV system)
- State Mandated External Vendor (the state agency selects an EVV vendor)
- Open Choice Model (the state implements either of the state-mandated models, while allowing providers and/or Managed Care Plans to continue using existing compatible EVV systems)
Because of the flexibility granted to states regarding selection of EVV model and timing of implementation, PCS and HHCS providers must confirm the specific requirements for the state or states in which they operate. States also have differing views on which billing codes are subject to EVV. For example, New Jersey and Indiana have published expansive lists of applicable billing codes, but other states, such as Arizona and Maine refer to shorter lists. Other states have not published guidance on applicable billing codes to date.
The Cures Act does not exempt rural areas, but states also have discretion as to which EVV system works best, including for rural areas, as long as all 6 verification criteria are captured. Nothing in the Cures Act, however, prevents states from requiring additional information to control fraud, waste, and abuse. Some EVV options do not require a Medicaid beneficiary to supply any technology, such as an internet connection or GPS signal. While this offers flexibility, the grab bag of EVV options has led to complexity and confusion for providers, particularly those with multi-state operations, looking to comply with divergent EVV rules.
Some states’ compliance dates and manners differ
In line with the Cures Act, the vast majority of states are mandating compliance with EVV requirements for HHCS providers by of January 1, 2023. However, some states, such as Florida (since June 21, 2021) and Colorado (since August 3, 2020), already require EVV for both PCS and HHCS providers. A minority of states, including Montana, Nevada, and Nebraska, are not on track to implement an EVV system for PCS or HHCS by January 1, 2023. Montana has estimated that its implementation date will be October 2023, and Nebraska and Nevada have estimated that their implementation date will be January 2024.
The Executive Office of Health and Human Services (EOHHS), which administers the Massachusetts Medicaid program, MassHealth, had previously significantly delayed implementation of its EVV program after a failed attempt at implementation. However, EOHHS has recently announced that it has chosen to implement EVV in phases and will reach out to providers and relevant stakeholders in due course. For the MassHealth Personal Care Attendant (PCA) Program, which is the state’s Medicaid-funded PCS program, and Moving Forward Plan (MFP) Waiver Programs, which are the state’s home and community based services programs, EVV is being implemented through the PCA Program Fiscal Intermediary within its timekeeping system. Agency-based providers, including those that contract with Aging Services Access Points may either use the state-sponsored EVV program, known as MyTimesheet, or purchase their own EVV system and submit data on at least a monthly basis to EOHHS.
Reed Smith will continue to monitor developments related to Cures Act implementation. We encourage PCS and HHCS providers with questions on EVV compliance to reach out to the health care attorneys at Reed Smith.