June 23rd Newsletter - Sachs Policy Group

State Updates

Governor Cuomo Announces $65 Million NY Forward Child Care Expansion Incentive

Today (June 23^rd), Governor Cuomo announced that $65 million in federal CARES Act funding is available for child care providers statewide through the New York Forward Child Care Expansion Incentive Program. The funding available includes:

$20 million to assist child care programs with reopening and expansion of capacity by providing materials to support a more socially distant model, and for supplies and activities associated with reopening and expansion.
$45 million in funding to pay for 50 percent of the cost of a newly opened classroom (maximum grant amount of $6,000) as an incentive to open the classroom.

To be eligible for reopening funds, child care programs must either (a) have been closed as of June 15^th and have a plan to reopen within two weeks of applying, or (b) be currently operating below their licensed capacity and be seeking to expand. The grants will be pro-rated as programs reach capacity. Programs must submit a detailed plan for use of funds and must remain open at least through the end of the year. Awards will range from $300 to $1,600 based on program size. Child care programs may apply to the Office of Children and Family Services (OCFS) until July 15^th.

The Governor also announced continued progress on reopening New York State, with the Hudson Valley moving to Phase Three today and Long Island doing so tomorrow. Yesterday saw continued decreases in the number of total hospitalizations and individuals in intensive care units. Of the 48,709 tests conducted yesterday, 1.2 percent were positive.

The Governor’s press release is available here.

Governor Cuomo Issues Two Executive Orders

On June 19^th, Governor Cuomo signed Executive Order 202.43 (available here) that allows any certified residential program for victims of domestic violence that provided services to a victim of a crime related to domestic violence to be considered a “criminal justice agency.” The Order also contains provisions related to property taxes, school taxes, and the enforcement of social distancing outside restaurants and bars.

On June 21^st, Governor Cuomo signed Executive Order 202.44 (available here), which contains the expansion or extension of various provisions related to the COVID-19 emergency. In particular, this includes a 30-day extension (until July 21^st) of all previously issued directives allowing for the practice of a profession in New York State without current licensure or registration, including but not limited to those individuals who are validly licensed in another state or Canada who are providing services to support the State’s COVID-19 response.

The Order will also extend the following provisions from previous Executive Orders:

Allows the Department of Health (DOH) to approve and certify dedicated birthing sites operated by licensed birthing hospitals and centers.
Allows clinical laboratories to accept and examine specimens for COVID-19 testing from nursing home and adult care facilities personnel without a prescription or order and to report tests to the appropriate staff at the facilities, and to require the facilities to report positives to the local department of health for treatment and isolation orders.
Permits the resumption of elective surgeries and procedures in accordance with criteria and guidance issued by DOH.
Authorizes the Commissioner of Health to suspend or revoke the operating certificate of any skilled nursing facility or adult care facility if it is determined that such facility has not adhered to any regulations or directives issued by the Commissioner of Health, and if determined to not be in compliance notwithstanding any law to the contrary the Commissioner may appoint a receiver to continue the operations on 24 hours’ notice to the current operator.
Requires Article 28 facilities to allow any patient giving birth to have present with them for the labor, delivery, and remaining duration of the patient’s stay a support person and/or a doula who does not have symptoms of COVID-19, subject to exceptions for medical necessity determined by the Commissioner.
Allows licensed pharmacists to order and administer COVID-19 tests or tests for COVID-19 antibodies.
Allows licensed pharmacists to be designated as qualified healthcare professionals so they can direct a limited service laboratory to test patients for COVID-19 or its antibodies.
Allows physicians to order COVID-19 tests for self-collection without having a physician-patient relationship.

CMS Approves Additional New York State 1135 Waiver Flexibility Request

On June 15^th, the Center for Medicare and Medicaid Services (CMS) approved an additional flexibility requested in New York State’s 1135 Waiver request (available here) submitted on March 23, 2020. With this approval, CMS is allowing the State to modify the deadline for the face-to-face encounter required for Home Health services. With this waiver, the face-to-face encounter does not need to be completed before the start of services and may occur at the earliest possible time, not to exceed 12 months from the start of service. The waiver is effective March 1, 2020 and will terminate at the end of the COVID-19 public health emergency.

The CMS approval letter is available here.

CMS Approves New York State’s Emergency Appendix K Amendment to Children’s Waiver

As reported last week, CMS approved New York State’s emergency Appendix K Amendment to the Children’s Waiver services on June 18^th. Additional details on the flexibilities included in the Amendment are provided below:

Allows Children’s Home and Community Based (HCBS) Waiver services to exceed the limits on amount, frequency, or duration outlined in the individual’s Plan of Care (POC).
Permits providers to deliver HCBS to enrolled participants who may be displaced and living in a shelter or hotel due to the COVID-19 emergency.
Allows respite to be provided telephonically when clinically justified and when the provider/family does not have the necessary equipment to deliver the service via telehealth (i.e. audio-visual).
Allows the HCBS Level of Care (LOC) assessment to be conducted by telephone or permitted telehealth modalities.
Removes the requirement of additional risk factor documentation for children and youth referred for HCBS eligibility who are released from an institutional setting or referred by a Licensed Practitioner of the Health Arts (LPHA).
Removes the annual HCBS LOC eligibility determination re-assessment and extends re-evaluations for one year past the due date of the re-evaluation.
Waives certain face-to-face requirements (consistent with 1135 Waiver request) and permits telephonic and telehealth modalities to support POC development and other services.
Allows for electronic signature consent, verbal consent, and original signature via mail in certain circumstances.
Permits delays of incident reports for up to 90 days after the end of the emergency period if there is a risk to the health of the investigator or individuals served.
Authorizes retainer payments for Community Habilitation and Day Habilitation providers.
Waives monthly services delivery requirements for up to two consecutive months if providers are unable to contact or properly connect with the participant.
Waives the HCBS settings requirement that individuals are able to have visitors of their choosing at any time to minimize the spread of infection during the COVID-19 pandemic.

The Amendment is effective retroactively to March 1, 2020 and in effect until February 28, 2021. The Appendix K approval is available here.

Updated Guidance Documents

Recently released New York City guidance documents are listed below:

Federal Updates

CMS Issues FFCRA and CARES Act FAQs

Today, the Centers for Medicare and Medicaid Services (CMS) released frequently asked questions (FAQs) regarding implementation of the Families First Coronavirus Response Act (the FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act). The FAQs were prepared jointly by the Department of Labor, the Department of Health and Human Services (HHS), and the Department of the Treasury. Areas of focus include:

COVID-19 Testing
- The FFCRA and CARES Act established requirements for insurers to cover COVID-19 testing and requires them to waive cost-sharing. These requirements apply to both insured and self-insured plans and that they include a prohibition on balance billing. However, only diagnostic testing, as determined to be appropriate by a medical provider who has made an individualized clinical assessment, is covered. As such, “return-to-work” or surveillance testing is not included.
Notice Requirements
- Plans that have established temporary increases in coverage for telehealth or COVID-19 testing without following requirements for providing notice may also end them if they provide enrollees with notification of the “general duration” of these modifications (e.g., that they apply only during the COVID-19 emergency) within a “reasonable timeframe.”
Telehealth and Other Remote Care Services
- For the duration of the emergency, large employers may provide telehealth-only coverage to employees who are otherwise ineligible for employer-sponsored health coverage.

Other topics covered by the FAQs include:

Grandfathered Health Plans;
The Mental Health Parity and Addiction Equity Act of 2008;
Wellness Programs; and
Individual Coverage Health Reimbursement Arrangements.

The FAQs are available here.

HHS Updates Provider Relief Fund FAQ

HHS continues to update the CARES Act Provider Relief Fund FAQs. Notable updates include:

Providers who anticipate losing revenue from value-based payment arrangements (e.g., quality incentive payments that may not be received due to stay-at-home orders) may include such losses in their estimates of lost revenue.
Any providers who were eligible for the initial General Distribution are not eligible for the Medicaid Targeted Distribution, even if their practice is primarily Medicaid-focused. However, such providers “may be eligible for future allocations of the Provider Relief Fund.”
Any provider that was enrolled in Medicaid in 2018 or 2019 (but not eligible for the General Distribution), even if they did not bill Medicaid during that time period, may be eligible for the Medicaid Targeted Distribution.
For the purposes of reporting payer mix, patient out-of-pocket costs should be considered part of revenue from that patient’s insurance or payer.
There is no set period of time in which providers must use money received from the Provider Relief Fund. However, at the conclusion of the pandemic, providers who have leftover money that they cannot expend on permissible expenses or losses must return the funds to HHS.
Recipients of Provider Relief Fund money who have received money prior to the completion of a sale may continue to use the funds if the transaction is a purchase of the recipient entity (i.e., stock or membership interests). However, if the transaction is an asset purchase, then the original recipient must use the funds for its eligible expenses and lost revenues and return any unused funds to HHS.
For hospitals that underwent a change in ownership, cost report margin data was not annualized.

The Provider Relief Fund FAQs are available here.

CMS Issues “Call to Action” Based on COVID-19 Medicare Claims Data

Yesterday, CMS called for greater focus on value-based care using claims data that provides an early snapshot of the impact of COVID-19 on the Medicare population. The data shows that older Americans and those with chronic health conditions are at the highest risk for COVID-19 and confirms disparities in health outcomes for racial and ethnic minority groups and among low-income populations. Highlights of the data include:

Over 325,000 Medicare beneficiaries had a diagnosis of COVID-19 between January 1^st and May 16^th, of which 110,000 were hospitalized for COVID-19-releated treatment;
End-stage renal disease patients were hospitalized at a rate of 1,341 per 100,000, far higher than the rate for all Medicare-only recipients at 112, and Dual-Eligible enrollees at 473 per 100,00.
Among racial/ethnic groups, hospitalization rates per 100,000 varied widely:
- Black: 465
- Hispanic: 258
- Asian 187
- White 123
- Other/Unknown 163

More information on the Medicare COVID-19 data is available here, and an FAQ on the data is available here.

CMS Releases Updated Medicare FFS Billing FAQs

On June 19^th, CMS updated the Medicare Fee-for-Service (FFS) Billing FAQs document. Much of the updated guidance explains provisions from the Coronavirus Aid, Relief, and Economic Security (CARES) Act and the two interim final rules with comment period (IFCs) (available here and here). The updated guidance includes, but is not limited to:

Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs)

For the duration of the COVID-19 public health emergency (PHE), CMS will use the number of beds from the cost reporting period prior to the start of the PHE as the official hospital bed count for application of the payment limit policy for RHCs.
During the PHE, RHCs and FQHCs can provide any telehealth service that is included on the list of Medicare telehealth services under the Physician Fee Schedule (PFS), including certain audio-only services. Payment to RHCs and FQHCs for distant site telehealth services is set at $92.03, which is the average amount for all PFS telehealth services on the telehealth list, weighted by volume for those services reported under the PFS.
To bill for telephone evaluation and management (E/M) services, RHCs and FQHCs must provide at least 5 minutes of medical discussion by a physician or other qualified health care professional to a patient, parent, or guardian.

Medicare Telehealth

For the duration of the PHE, providers can report remote physiologic services (RPM) monitoring for at least 2 days of a 30-day time period so long as the other requirements for billing the code are met, and patients have a confirmed or suspected case of COVID-19.
CMS will continue to consider and make additions of services to the Medicare telehealth list on a rolling basis as they’re identified by the public or through internal review.

Scope of Practice

Throughout the duration of the PHE, CMS will allow nurse practitioners (NPs), clinical nurse specialists (CNSs), physician assistants (PAs) and certified nurse-midwives (CNMs) to provide the appropriate level of supervision assigned to a diagnostic test subject to applicable state law.
CMS has clarified that any individual who has a separately enumerated benefit under Medicare law that authorizes them to furnish and bill for their professional services may review and verify notes in the medical record made by physicians, residents, nurses, and students. CMS is also applying this flexibility to include therapists.

Opioid Treatment Programs (OTPs)

CMS will allow periodic assessments for OTPs to be conducted via two-way interactive audio-video communication technology, and in cases where the beneficiary does not have access to two-way interactive audio-video communication technology, the periodic assessment may be furnished using audio-only telephone calls.

Skilled Nursing Facility (SNF) Services

Therapy services provided to a Part A SNF resident may be done so remotely during the PHE, and those services would remain subject to consolidated billing. Therapy services to SNF residents who are not in a covered Part A SNF stay may be payable under the Part B Physician Fee Schedule, when reasonable and necessary.
A COVID-19 diagnosis does not in and of itself automatically serve to qualify a beneficiary for coverage under the Medicare Part A SNF benefit.

Home Health

“Allowed practitioners,” including PAs, NPs, or CNSs, can now certify beneficiaries for eligibility, order home health services, and establish and review the care plan. Such practitioners can bill for the work involved with certifying/recertifying patient eligibility for home health care and for care plan oversight while the patient is receiving home health services using the G-codes G0179, G0180, and G0181. These changes will be made permanent following the PHE.
PAs, NPs, and CNSs can sign the home health recertification statement and the plan of care in place of a physician or another allowed practitioner.
Other non-physician practitioners, such as nurse midwives, cannot certify and order home health services. However, they may continue to perform the face-to-face encounter.

Medical Education

CMS is holding Inpatient Rehabilitation Facility (IRF) or Inpatient Psychiatric Facility (IPF) teaching status adjustment payments harmless for the duration of the PHE, meaning the teaching status adjustment amounts for the IRF and IPF hospitals and units of hospitals will be the same during the COVID-19 PHE as they were on the day before the PHE was declared.

The updated FAQs are available here.