April 24, 2020

More Provider Relief Funds On the Way: Beware Updated Terms and Conditions

By Kim Stanger

On April 22, 2020, HHS announced specifics concerning the next round of the $100 billion Provider Relief Fund payments, some of which should reach provider bank accounts today. https://www.hhs.gov/coronavirus/cares-act-provider-relief-fund/index.html. As with the initial $30 billion, the additional payments come with more strings attached.

Additional Payments.

1. General allocation. An additional $20 billion will go to providers who rendered diagnoses, testing or care of individuals with possible or actual cases of COVID-19 after January 31, 2020, including such providers who were largely left out of the initial $30 billion disbursement. The initial $30 billion was allocated based on the providers’ 2019 Medicare fee for services payments. The next $20 billion will also reach providers who receive only a small amount of Medicare revenue, e.g., children’s hospitals. The $20 billion will be allocated so that the combined $50 billion in payments reflects the providers’ 2018 net patient revenue.

Continue reading →

April 24, 2020

Utah Enacts Healthcare Provider Immunity Law to Address COVID-19 Pandemic

By Kristy M. Kimball

On Wednesday, April 22, 2020, Utah Governor Gary Herbert signed into law S.B. 3002, which provides heightened immunity for healthcare providers delivering treatment during the COVID-19 pandemic. Specifically, during a declared major public health emergency (as defined U.C.A. 58-85-106), the law gives civil liability immunity to healthcare providers delivering care to patients having the illness causing the health emergency (in this case, COVID-19), as long as the care is (i) provided in good faith and (ii) not grossly negligent or intentionally or maliciously conducted. Such immunity applies even where the healthcare provider is not a volunteer but is paid for their services. If the public health emergency results in a shortage of health care providers, the bill also provides the aforementioned level of immunity to healthcare providers that are practicing outside their normal scope of practice, but who are otherwise properly licensed for the level of care provided. Continue reading →

April 23, 2020

Overview of the COVID-19 Telehealth Program

By Cory Talbot

As part of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Congress appropriated $200 million in funding for the COVID-19 Telehealth Program (the “Program”). The Program, administered through the Federal Communications Commission (“FCC”), is designed to help health care providers deliver connected care services to patients at their homes or mobile locations in response to the COVID-19 pandemic. The FCC began accepting applications for the Program earlier this month.

What is the Program?

The Program will distribute emergency funding to health care providers to increase telehealth services during the COVID-19 pandemic. The FCC indicates that the Program will support participating health care providers “by fully funding their telecommunications services, information services, and devices necessary to provide critical connected care services” during the COVID-19 pandemic.1 Funds can be used to cover eligible equipment or services purchased on or after March 13, 2020, including services with monthly recurring charges, such as broadband connectivity or remote patient monitoring devices, through September 30, 2020. The FCC has set an award ceiling of $1 million per applicant. Continue reading →

April 17, 2020

Update to Provider Relief Fund

By Kim Stanger

Beginning April 10, 2020, HHS began issuing payments to providers eligible to receive a portion of the $30 billion reserved for the Provider Relief Fund. There have been two important developments this week:

First, HHS has now opened the portal to allow providers to certify their eligibility; it may be accessed at https://covid19.linkhealth.com/#/step/1.

Second, HHS has updated the terms and conditions associated with the Provider Relief Fund payments. (See https://www.hhs.gov/sites/default/files/relief-fund-payment-terms-and-conditions-04132020.pdf. The revised terms and conditions appear to broaden provider eligibility for the funds. Continue reading →

April 8, 2020

DOL Finalizes FFCRA Regulations

By Bradley Cave

After days of uncertainty and looming deadlines created by the Families First Coronavirus Response Act (FFCRA), the DOL has finally issued some definitive regulatory guidance, as well as twenty new Q&As to its list of non-regulatory guidance. You can read the Q&As and access the final regulations at the DOL’s website. But, if you have had enough of the daily changes, we offer the following summary of the new Q&As and the regulations:

Stay-at-Home Orders. A “Federal, state or local quarantine or isolation order” as used in the definitions of qualifying reasons for leave under the Paid Sick Leave Act, includes shelter-in-place or stay-at-home orders that cause an employee to be unable to work, and employees can take paid sick leave for this reason if the employer has work for the employee to do. The supplementary information DOL published with the final rules explains that quarantine and isolation orders include “a broad range of governmental orders.” The regulations also state a bright line rule that paid sick leave can be used only if the employee would have been able to perform work at the worksite or by teleworking but for the quarantine or isolation order. If the employer does not have work for the employee to do regardless of the shelter-in-place or stay-at-home order, the employee is not eligible for paid sick leave. Continue reading →

April 1, 2020

CMS Waives Stark Law Limits to Hospital-Physician Arrangements During COVID-19 Pandemic

By Kim Stanger

On March 30, 2020, CMS opened the way for hospitals to provide additional compensation and/or support to referring physicians during the COVID-19 pandemic by waiving the enforcement penalties under the federal Ethics in Patient Referrals Act (“Stark”). (See https://www.cms.gov/files/document/covid-19-blanket-waivers-section-1877g.pdf).

I. Stark Law Prohibitions.

Stark generally prohibits physicians from ordering or referring certain designated health services (“DHS”) payable by Medicare or Medicaid to a hospital or other entity with which the physician (or a member of the physician’s family) has a financial relationship unless the arrangement is structured to fit within a regulatory safe harbor. (42 U.S.C. § 1395nn; 42 C.F.R. § 411.353). Those safe harbors may be difficult to satisfy in the COVID-19 crisis but for the CMS waivers. Continue reading →

March 31, 2020

CMS Expands Blanket Waivers to Help Hospitals and Other Providers

By Kim Stanger

On March 30, 2020, CMS issued numerous additional blanket waivers to give providers greater flexibility in responding to COVID-19. (See https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-waivers.pdf). Highlights include the following, but providers should review the entire list of waivers to confirm their scope and conditions. Many of the waivers only apply to the extent consistent with the state emergency preparedness or pandemic plan and/or state law. Continue reading →

March 30, 2020

Healthcare Employers Spared Burden of FFCRA By Last Minute DOL Guidance

By Bradley Cave

The Families First Coronavirus Response Act created a bizarre contradiction for healthcare employers.  While hospitals, clinics and other patient care providers worked under great strain to care for patients, with COVID-19 and other maladies, the Act would have permitted employees of healthcare providers to be absent from work, sometimes with pay, in some situations for up to 12 weeks.  Saturday afternoon, the DOL issued new guidance to greatly expand the scope of employees that healthcare providers can exclude from the leave rights under FFCRA, sparing providers from crippling staff shortages during this pandemic.

FFCRA permitted employers to elect to exclude healthcare providers and emergency responders from the leave rights created by the act.  However, the act did not define emergency responder, and borrowed the FMLA’s narrow definition of healthcare provider.  As the act was written, healthcare employers could exclude only doctors, nurse practitioners and physicians’ assistants, along with a handful of other licensed professionals, from the leave rights under the act.  Notably, RNs, LPNs and CNAs were not on the list of employees that could be excluded, nor were pharmacists, pharmacy techs, any type of therapists, or any of the support staff necessary to operate a hospital, nursing home or medical practice. Continue reading →

March 27, 2020

Health Provisions/Medicare & Medicare Extenders/OTC Drugs

By Karina Sargsian and Kim Stanger

The CARES Act adopts several measures to help stabilize the healthcare system, address health care issues directly and indirectly related to the current pandemic and ensure future preparedness. It also allocates $100 billion of direct funding to help hospitals keep their doors open. Many of the provisions are only tangentially related to the current pandemic, such as re-appropriations for a variety of health programs. Continue reading →