Federal Updates
Revised Federal COVID-19 Bill Sent to Senate
Yesterday (March 17th), the House of Representatives sent a revised version of the Families First Coronavirus Response Act (H.R. 6201) to the Senate. The revised text includes “technical corrections” that reduce the scope of the bill’s provisions on paid sick and modify its payroll tax provisions. In particular, the Department of Labor has authority to issue waivers for businesses with under 50 employees, and the paid leave mandate after 10 days appears to have been reduced in scope to apply only to child care. For employers, the payroll tax credit has been enhanced to include the full 7.65% employer liability. The Senate is expected to take up the bill and pass it today or tomorrow.
HHS OCR Issues Notice of Enforcement Discretion for Telehealth
Yesterday (March 17th), the Office for Civil Rights (OCR) at the Department of Health and Human Services (HHS) issued a notice of enforcement discretion on requirements for telehealth under the Health Insurance Portability and Accountability Act (HIPAA). For the duration of the COVID-19 emergency, health care providers may use any non-public facing remote communication product to provide telehealth, whether related to COVID-19 or not, without facing penalties for noncompliance with HIPAA. This includes non-specialized video chat applications, such as Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, and Skype.
The Notification of Enforcement Discretion is available here.
CMS Expands Medicare Telehealth Services Access
Yesterday (March 17th), the Centers for Medicare and Medicaid Services (CMS) announced an expansion of access to telehealth services for Medicare beneficiaries, as permitted by the federal COVID-19 response bill passed on March 6th. Starting on that date, services delivered by telehealth to a Medicare beneficiary are reimbursable regardless of geographic restrictions or originating site limitations. In particular, this includes services delivered to beneficiaries in non-rural areas and/or located in their own homes. Also, Medicare cost-sharing may be waived by providers, and CMS will not enforce the requirement that patients have a prior relationship with the telehealth provider. During this period, Medicare will make payments for allowable telehealth codes (listed here). The telehealth visits are considered the same as in-person visits and will be paid at the same rate. Providers may also continue to provide the virtual check-in services and e-visits that they were previously able to offer.
A fact sheet detailing the telehealth expansion is available here.
HHS Releases Limited Waiver of HIPAA Sanctions and Penalties
Effective March 15th, HHS issued a limited waiver for certain HIPAA sanctions for hospitals implementing a disaster protocol due to the COVID-19 emergency. For 72 hours after implementing their protocol, hospitals will not be subject to sanctions or penalties related to noncompliance various HIPAA Privacy Rule provisions. After the 72-hour period, hospitals must continue compliance with these HIPAA requirements:
- The requirements to obtain a patient’s agreement to speak with family members or friends involved in the patient’s care.
- The requirement to honor a request to opt out of the facility directory.
- The requirement to distribute a notice of privacy practices.
- The patient’s right to request privacy restrictions.
- The patient’s right to request confidential communications.
A bulletin covering this HIPAA waiver is available here.
CMS Approves Florida Section 1135 Medicaid Waiver
Yesterday (March 17th), the Centers for Medicare and Medicaid Services (CMS) announced approval of Florida’s Section 1135 Medicaid waiver request. Section 1135 waiver requests provide state Medicaid agencies with greater flexibility to meet patient needs in emergency situations, such as waivers or modifications to preapproval requirements, program participation, or performance deadlines. Florida’s waiver (available here) allows the state to:
- Waive prior authorization requirements;
- Streamline provider enrollment processes;
- Allow care to be provided in alternative settings;
- Suspend nursing home screening requirements; and
- Extend deadlines for appeals and state fair hearing requests.
New York State Updates
New York State Job Protection and Paid Sick Leave Bill
Yesterday (March 17th), Governor Cuomo announced agreement with the New York State legislature on a bill that would provide comprehensive paid sick leave, job protection, and pay to individuals who have been quarantined as a result of COVID-19. The provisions of the bill would require the following:
- All employers must provide job protection for employees subject to a government-ordered quarantine. No employee may have their pay reduced, be subject to additional conditions of employment, or retaliated against.
- Employers with 10 or fewer employees and a net income less than $1 million will be required to offer unpaid sick leave during an employee’s quarantine, which will make the employee eligible for paid family leave and short-term disability benefits, including wage replacement up to $150,000.
- Employers with 11-99 employees or 10 or fewer employees but a net income greater than $1 million will additionally provide at least 5 days of paid sick leave during an employee’s quarantine.
- Employers with 100 or more employees, as well as all public employers (regardless of number of employees), will provide at least 14 days of paid sick leave during an employee’s quarantine (i.e., likely the whole period).
The bill was introduced into the Assembly and Senate yesterday (A. 10152/S. 8090), and provisions will take effect immediately upon passage of the bill. The Governor’s press release is available here.
New York State School Closures and Child Care Provisions
On March 16th, Governor Cuomo signed an executive order closing all schools statewide for two weeks, beginning March 18th until April 1st. During a press conference yesterday (March 17th), the Governor directed the Greater New York Hospital Association (GNYHA) and the Health Care Association of New York State (HANYS) to work with 1199 SEIU to develop a plan that would create drop-in child care opportunities and expand child care facilities at hospitals to ensure child care for hospital personnel. GNYHA, HANYS, and 1199 SEIU will submit a joint plan to the State by Friday. The Governor also discussed other options to address child care issues, including:
- Limiting density in day care facilities to smaller groups;
- Increasing day care staff;
- Working with the Office of Children and Family Services (OCFS) to waive or expedite requirements and approvals of temporary sites; and
- Using alternative sites on health care campuses as day cares for health care workers.
The press release is available here.
New York State of Health Special Enrollment Period
In order to ensure that more individuals have health coverage during the COVID-19 emergency, the New York State of Health (NYSOH) insurance marketplace and the New York State Department of Financial Services (DFS) announced a special enrollment period during which uninsured New Yorkers may enroll in health insurance. Effective March 16th until April 15th, uninsured individuals may enroll in coverage through the NYSOH marketplace or directly through insurers. Coverage will be effective beginning April 1st.
The press release is available here.
New York City Hospital Bed Surge
During a press conference on March 16th, Mayor de Blasio announced efforts to dedicate approximately 8,300 hospital beds to the treatment of COVID-19. Of these beds, 7,000 will come from existing hospitals (including the NYC Health + Hospitals network) by canceling elective surgeries and implementing early discharges to vacate existing beds, and converting existing spaces, such as cafeterias or parking lots, to areas for new beds. The 1,300 additional beds will come from four health facilities with currently vacant space/beds:
- The empty NYC Health + Hospitals Coler Hospital on Roosevelt Island;
- A new, not yet occupied nursing home in Brooklyn;
- Montefiore Westchester Square Hospital in the Bronx; and
- NYC Health + Hospitals North Central Bronx Hospital.
The video can be viewed here.
DFS Issues Emergency Regulation Waiving Cost-Sharing for Telehealth
Yesterday (March 17th), the Department of Financial Services (DFS) announced, in keeping with its prior circular letters, an emergency regulation instructing all regulated issuers to waive cost-sharing (including copay, coinsurance, and deductibles) for in-network telehealth visits, for the duration of the State’s COVID-19 emergency. For the purposes of this regulation, “telehealth” includes any electronic communication technologies, including telephone and video modalities.
The regulation text is available here.