On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) into law. Among other things, the CARES Act provides emergency appropriations and other relief provisions to the health care industry in responding to the COVID-19 crisis. We have summarized below those emergency appropriations and other relief provisions that we believe would be of most interest to our health care clients. We are available to provide additional, more detailed, guidance to our clients on how their organizations can obtain relief under the CARES Act as they respond to the COVID-19 crisis, including: 1) applying for reimbursement of unreimbursable expenses and lost revenues attributable to COVID-19; and 2) applying for Medicare accelerated and advanced payments during the COVID-19 emergency.
Under the CARES Act, eligible health care providers (defined as public entities, Medicare or Medicaid enrolled suppliers and providers, and such other for-profit entities and not-for-profit entities specified by the Secretary of DHHS) that provide diagnoses, testing, or care for individuals with possible or actual cases of COVID–19, may apply to the Secretary to be reimbursed for health care-related expenses or lost revenues, not otherwise reimbursable, that are directly attributable to COVID-19. The application must contain the provider’s tax identification number and a statement justifying the need of the provider for the payment. Eligible providers will be reimbursed through grants or other mechanisms through DHHS’s Public Health and Social Services Emergency Fund, which will receive $100 billion dollars through the CARES Act for this purpose. Payments will be made to providers on a rolling basis through “the most efficient payment systems practicable to provide emergency payment.” Providers that receive payments will be required to submit reports and maintain documentation in such form and content as required by the Secretary to ensure compliance with eligibility requirements. Funds will be available for expenses such as “building or construction of temporary structures, leasing of properties, medical supplies and equipment including personal protective equipment and testing supplies, increased workforce and trainings, emergency operation centers, retrofitting facilities, and surge capacity.”
Health care providers may also be eligible to receive funding through emergency appropriations made to other programs as well. For example, the Substance Abuse and Mental Health Administration will receive $250 million for the Certified Community Behavioral Health Clinics Grants Program to provide increased access to mental health care services; $50 million for suicide prevention programs; and $100 million for emergency response grants to address mental health, substance use disorders and provide resources to the homeless in local communities. In addition, the Health Resources and Services Administration will receive $90 million to expand services and capacity for rural hospitals, telehealth, poison control centers and the Ryan White HIV/AIDS programs, and $185 million to support rural and critical access hospitals, rural telehealth programs and poison control centers. The Distance Learning, Telemedicine, and Broadband Program under the Department of Agriculture’s Rural Development Programs will receive $25 million in funding to facilitate distance learning and telemedicine in rural areas. In addition, the Federal Communications Commission will receive $200 million to support the efforts of health care providers addressing COVID-19 by providing telecommunications services, information services, and devices necessary to enable telehealth services.
Other Relief Provisions:
The United States Senate provided a section-by-section summary of the CARES Act (the “Senate Summary”), a copy of which can be found here: CARES Act Summary. For your convenience, we have excerpted those health care provisions from the Senate Summary that we believe would be of most interest to our clients and included them below. We are available to provide more detailed information and guidance with respect to each of these provisions.
TITLE III – SUPPORTING AMERICA’S HEALTH CARE SYSTEM IN THE FIGHT AGAINST THE CORONAVIRUS
PART II – ACCESS TO HEALTH CARE FOR COVID-19 PATIENTS
SUBPART A – COVERAGE OF TESTING AND PREVENTIVE SERVICES
Section 3201. Coverage of diagnostic testing for COVID-19. Clarifies that all testing for COVID-19 is to be covered by private insurance plans without cost sharing, including those tests without an EUA by the FDA.
Section 3202. Pricing of diagnostic testing. For COVID-19 testing covered with no cost to patients, requires an insurer to pay either the rate specified in a contract between the provider and the insurer, or, if there is no contract, a cash price posted by the provider.
Section 3203. Rapid coverage of preventive services and vaccines for coronavirus. Provides free coverage without cost-sharing of a vaccine within 15 days for COVID-19 that has in effect a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force or a recommendation from the Advisory Committee on Immunization Practices (ACIP).
SUBPART B – SUPPORT FOR HEALTH CARE PROVIDERS
Section 3211. Supplemental awards for health centers. Provides $1.32 billion in supplemental funding to community health centers on the front lines of testing and treating patients for COVID-19.
Section 3212. Telehealth network and telehealth resource centers grant programs. Reauthorizes Health Resources and Services Administration (HRSA) grant programs that promote the use of telehealth technologies for health care delivery, education, and health information services. Telehealth offers flexibility for patients with, or at risk of contracting, COVID-19 to access screening or monitoring care while avoiding exposure to others.
Section 3213. Rural health care services outreach, rural health network development, and small health care provider quality improvement grant programs. Reauthorizes HRSA grant programs to strengthen rural community health by focusing on quality improvement, increasing health care access, coordination of care, and integration of services. Rural residents are disproportionately older and more likely to have a chronic disease, which could increase their risk for more severe illness if they contract COVID-19.
Section 3214. United States Public Health Service Modernization. Establishes a Ready Reserve Corps to ensure we have enough trained doctors and nurses to respond to COVID-19 and other public health emergencies.
Section 3215. Limitation on liability for volunteer health care professionals during COVID-19 emergency response. Makes clear that doctors who provide volunteer medical services during the public health emergency related to COVID-19 have liability protections.
Section 3216. Flexibility for members of National Health Service Corps during emergency period. Allows the Secretary of Health and Human Services (HHS) to reassign members of the National Health Service Corps to sites close to the one to which they were originally assigned, with the member’s agreement, in order to respond to the COVID-19 public health emergency.
SUBPART C – MISCELLANEOUS PROVISIONS
Section 3221. Confidentiality and disclosure of records relating to substance use disorder. Allows for additional care coordination by aligning the 42 CFR Part 2 regulations, which govern the confidentiality and sharing of substance use disorder treatment records, with Health Insurance Portability and Accountability Act (HIPAA), with initial patient consent.
Section 3224. Guidance on protected health information. Requires the Department of Health and Human Services (HHS) to issue guidance on what is allowed to be shared of patient record during the public health emergency related to COVID-19.
PART IV – HEALTH CARE WORKFORCE
Subtitle D – Finance Committee
Section 3701. Health Savings Accounts for Telehealth Services. This section would allow a high-deductible health plan (HDHP) with a health savings account (HSA) to cover telehealth services prior to a patient reaching the deductible, increasing access for patients who may have the COVID-19 virus and protecting other patients from potential exposure.
Section 3702. Over-the-Counter Medical Products without Prescription. This section would allow patients to use funds in HSAs and Flexible Spending Accounts for the purchase of over-the-counter medical products, including those needed in quarantine and social distancing, without a prescription from a physician.
Section 3703. Expanding Medicare Telehealth Flexibilities. This section would eliminate the requirement in Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020 (Public Law 116-123) that limits the Medicare telehealth expansion authority during the COVID-19 emergency period to situations where the physician or other professional has treated the patient in the past three years. This would enable beneficiaries to access telehealth, including in their home, from a broader range of providers, reducing COVID-19 exposure.
Section 3704. Allowing Federally Qualified Health Centers and Rural Health Clinics to Furnish Telehealth in Medicare. This section would allow, during the COVID-19 emergency period, Federally Qualified Health Centers and Rural Health Clinics to serve as a distant site for telehealth consultations. A distant site is where the practitioner is located during the time of the telehealth service. This section would allow FQHCs and RHCs to furnish telehealth services to beneficiaries in their home. Medicare would reimburse for these telehealth services based on payment rates similar to the national average payment rates for comparable telehealth services under the Medicare Physician Fee Schedule. It would also exclude the costs associated with these services from both the FQHC prospective payment system and the RHC all-inclusive rate calculation.
Section 3705. Expanding Medicare Telehealth for Home Dialysis Patients. This section would eliminate a requirement during the COVID-19 emergency period that a nephrologist conduct some of the required periodic evaluations of a patient on home dialysis face-to-face, allowing these vulnerable beneficiaries to get more care in the safety of their home.
Section 3706. Allowing for the Use of Telehealth during the Hospice Care Recertification Process in Medicare. Under current law, hospice physicians and nurse practitioners cannot conduct recertification encounters using telehealth. This section would allow, during the COVID-19 emergency period, qualified providers to use telehealth technologies in order to fulfill the hospice face-to-face recertification requirement.
Section 3707. Encouraging the Use of Telecommunications Systems for Home Health Services in Medicare. This section would require the Health and Human Services (HHS) to issue clarifying guidance encouraging the use of telecommunications systems, including remote patient monitoring, to furnish home health services consistent with the beneficiary care plan during the COVID-19 emergency period.
Section 3708. Enabling Physician Assistants and Nurse Practitioners to Order Medicare Home Health Services. This section would allow physician assistants, nurse practitioners, and other professionals to order home health services for beneficiaries, reducing delays and increasing beneficiary access to care in the safety of their home.
Section 3709. Increasing Provider Funding through Immediate Medicare Sequester Relief. This section would provide prompt economic assistance to health care providers on the front lines fighting the COVID-19 virus, helping them to furnish needed care to affected patients. Specifically, this section would temporarily lift the Medicare sequester, which reduces payments to providers by 2 percent, from May 1 through December 31, 2020, boosting payments for hospital, physician, nursing home, home health, and other care. The Medicare sequester would be extended by one-year beyond current law to provide immediate relief without worsening Medicare’s long-term financial outlook.
Section 3710. Medicare Add-on for Inpatient Hospital COVID-19 Patients. This section would increase the payment that would otherwise be made to a hospital for treating a patient admitted with COVID-19 by 20 percent. It would build on the Centers for Disease Control and Prevention (CDC) decision to expedite use of a COVID-19 diagnosis to enable better surveillance as well as trigger appropriate payment for these complex patients. This add-on payment would be available through the duration of the COVID-19 emergency period.
Section 3711. Increasing Medicare Access to Post-Acute Care. This section would provide acute care hospitals flexibility, during the COVID-19 emergency period, to transfer patients out of their facilities and into alternative care settings in order to prioritize resources needed to treat COVID-19 cases. Specifically, this section would waive the Inpatient Rehabilitation Facility (IRF) 3-hour rule, which requires that a beneficiary be expected to participate in at least 3 hours of intensive rehabilitation at least 5 days per week to be admitted to an IRF. It would allow a Long Term Care Hospital (LTCH) to maintain its designation even if more than 50 percent of its cases are less intensive. It would also temporarily pause the current LTCH site-neutral payment methodology.
Section 3712. Preventing Medicare Durable Medical Equipment Payment Reduction. This section would prevent scheduled reductions in Medicare payments for durable medical equipment, which helps patients transition from hospital to home and remain in their home, through the length of COVID-19 emergency period.
Section 3713. Eliminating Medicare Part B Cost-Sharing for the COVID-19 Vaccine. This section would enable beneficiaries to receive a COVID-19 vaccine in Medicare Part B with no cost-sharing.
Section 3714. Allowing Up to 3-Month Fills and Refills of Covered Medicare Part D. Drugs. This section would require that Medicare Part D plans provide up to a 90-day supply of a prescription medication if requested by a beneficiary during the COVID-19 emergency period.
Section 3715. Providing Home and Community-based Support Services during Hospital Stays. This section would allow state Medicaid programs to pay for direct support professionals, caregivers trained to help with activities of daily living, to assist disabled individuals in the hospital to reduce length of stay and free up beds.
Section 3716. Clarification Regarding Uninsured Individuals. This section would clarify a section of the Families First Coronavirus Response Act of 2020 (Public Law 116-127) by ensuring that uninsured individuals can receive a COVID-19 test and related service with no cost-sharing in any state Medicaid program that elects to offer such enrollment option.
Section 3717. Clarification Regarding Coverage of Tests. This section would clarify a section of the Families First Coronavirus Response Act of 2020 (Public Law 116-127) by ensuring that beneficiaries can receive all tests for COVID-19 in Medicare Part B with no cost-sharing.
Section 3718. Preventing Medicare Clinical Laboratory Test Payment Reduction. This section would prevent scheduled reductions in Medicare payments for clinical diagnostic laboratory tests furnished to beneficiaries in 2021. It would also delay by one year the upcoming reporting period during which laboratories are required to report private payer data.
Section 3719. Providing Hospitals Medicare Advance Payments. This section would expand, for the duration of the COVID-19 emergency period, an existing Medicare accelerated payment program. Hospitals, especially those facilities in rural and frontier areas, need reliable and stable cash flow to help them maintain an adequate workforce, buy essential supplies, create additional infrastructure, and keep their doors open to care for patients. Specifically, qualified facilities would be able to request up to a six month advanced lump sum or periodic payment. This advanced payment would be based on net reimbursement represented by unbilled discharges or unpaid bills. Most hospital types could elect to receive up to 100 percent of the prior period payments, with Critical Access Hospitals able to receive up to 125 percent. Finally, a qualifying hospital would not be required to start paying down the loan for four months, and would also have at least 12 months to complete repayment without a requirement to pay interest.
Sec. 3720. Providing State Access to Enhanced Medicaid FMAP. This section would amend a section of the Families First Coronavirus Response Act of 2020 (Public Law 116-127) to ensure that states are able to receive the Medicaid 6.2 percent FMAP increase.
Subtitle E – Health and Human Services Extenders
PART I – MEDICARE PROVISIONS
Section 3801. Extension of Physician Work Geographic Index Floor. This section would increase payments for the work component of physician fees in areas where labor cost is determined to be lower than the national average through December 1, 2020.
Section 3802. Extension of Funding for Quality Measure Endorsement and Selection. This section would provide funding for HHS to contract with a consensus-based entity, e.g., the National Quality Forum (NQF), to carry out duties related to quality measurement and performance improvement through November 30, 2020.
Section 3803. Extension of Funding Outreach and Assistance for Low-Income Programs. This section would extend funding for beneficiary outreach and counseling related to low-income programs through November 30, 2020.
PART II – MEDICAID PROVISIONS
Section 3811. Extension of Money Follows the Person Demonstration Program. This section would extend the Medicaid Money Follows the Person demonstration that helps patients transition from the nursing home to the home setting through November 30, 2020.
Section 3812. Extension of Spousal Impoverishment Protections. This section would extend the Medicaid spousal impoverishment protections program through November 30, 2020 to help a spouse of an individual who qualifies for nursing home care to live at home in the community.
Section 3813. Delay of Disproportionate Share Hospital Reductions. The section would delay scheduled reductions in Medicaid disproportionate share hospital payments through November 30, 2020.
Section 3814. Extension and Expansion of Community Mental Health Services Demonstration. This section would extend the Medicaid Community Mental Health Services demonstration that provides coordinated care to patients with mental health and substance use disorders, through November 30, 2020. It would also expand the demonstration to two additional states.
PART IV – PUBLIC HEALTH PROVISIONS
Section 3831. Extension for community health centers, the National Health Services Corps, and teaching health centers that operate GME programs. Extends mandatory funding for community health centers, the National Health Service Corps, and the Teaching Health Center Graduate Medical Education Program at current levels through November 30, 2020.
For more information, please contact Kirsten McAuliffe Raleigh at 610.205.6015, or reach out to the Stevens & Lee attorney with whom you regularly work.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.