Federal Updates
HHS Issues RFI on Making COVID-19 Waivers Permanent
On November 25th, the Department of Health and Human Services (HHS) issued a request for information (RFI) regarding temporary regulatory waivers made available during the COVID-19 public health emergency (PHE). HHS is considering making some of the various temporary adjustments to regulations and guidance permanent after the end of the COVID-19 PHE. As such, the RFA requests input as to:
- Which changes have been beneficial and/or detrimental to providers and patients, and under which circumstances; and
- Which changes should be (a) lapsed after the PHE, (b) made permanent, (c) made permanent with changes, (d) temporarily extended but not made permanent, or (e) lapsed immediately.
For reference, the RFI contains a list (Attachment A) of 382 such items, such as telehealth flexibility, reporting and compliance requirements, and many other actions.
The RFI is available here. HHS is accepting comments through December 28th, which may be submitted here.
CMS Makes 24/7 Nursing Waivers Available for Hospitals and ASCs
On November 25th, the Centers for Medicare and Medicaid Services (CMS) announced the availability of regulatory relief relating to the requirement for hospitals to have 24/7 nursing services available at all times on their operating premises.
- Acute Hospital Care at Home: CMS is accepting requests to waive Hospital Conditions of Participation, which require (1) nursing services to be provided on premises 24/7 and (2) the immediate availability of a registered nurse for care of any patient. This will have the effect of providing eligible hospitals with the ability to treat patients in their homes. More information is available here.
- Ambulatory Surgical Center (ASC) Flexibility: During the COVID-19 PHE, some ASCs have been permitted to enroll in Medicare as hospitals under the Hospitals Without Walls initiative. CMS is allowing such ASCs to provide required 24/7 nursing services only when there are patients physically present and receiving care onsite, allowing them to operate on an on-call basis. This waiver will be immediately effective for the 85 currently participating ASCs and available to any others who join. More information is available here.
State Updates
Governor Cuomo Announces New Statewide COVID-19 Strategies
Today (November 30th), Governor Cuomo held a press conference during which he provided updates and announced new strategies to address the COVID-19 surge across New York State. Of the 148,974 COVID-19 tests reported yesterday, 6,819 (4.57 percent) were positive. There were 3,532 total hospitalizations reported yesterday, an increase of 160, and 54 deaths related to COVID-19.
The Governor outlined the following five new strategies to address the COVID-19 surge statewide:
1. Hospital Capacity
- The State will shift the focus of the Yellow, Orange, and Red Zone designations to maintaining hospital capacity and set associated metrics for overloading of the local health system, which may result in a zone modification or emergency stop (“NY on PAUSE”):
- Hospitalization rate
- Death rate
- Case rate
- Available hospital beds
- Available Intensive Care Unit (ICU) beds
- Available staff
- Effective patient load management
- Personal Protective Equipment (PPE) and other equipment availability
- The New York State Department of Health (DOH) will implement emergency hospital measures that will include immediate initiation of the following procedures for hospitals:
- Identifying retired nurses and doctors to address staff shortages;
- Stopping elective surgeries in Erie County effective December 4th;
- Mandating the distribution of patient load across hospital networks to avoid overwhelming a single hospital (i.e. Northwell, Montefiore, Health & Hospitals, etc.);
- Preparing plans for emergency field hospitals;
- Planning to add 50 percent bed capacity at hospitals;
- Preparing to implement statewide “surge and flex” procedures;
- Preparing to staff emergency field hospitals; and
- Confirming PPE stockpiles.
- The State will launch a hospital capacity emergency tracking system to monitor triggers in real time.
2. Testing
- The State plans to continue increasing total testing statewide. The distribution of testing will be balanced across the following populations:
- Healthcare workers
- Nursing homes
- Schools
- Essential workers
- Business professionals
- Personal services
- General population, including returning students and travelers
3. Schools
- Weekly testing is required for schools in Orange and Red zones (pooled testing is permitted).
- The State may adjust testing for specific districts under special circumstances.
- Local districts may choose to increase testing and can close at levels below the State mandatory closure rule, but the State’s advice is to keep at least grades K-8 open whenever safe.
4. Small Gatherings
- The State will implement a public education campaign on safety concerns for small gatherings.
5. Vaccine Distribution Program
- Vaccine delivery could start in the next few weeks and will be an inclusive process, including outreach to minority and low-income communities.
- The mass availability of vaccines for widespread vaccination will not occur for several months. Until that time, the State will continue to operate the economy at the maximum safe level and will continue to push for federal response.
DFS Extends Emergency Regulations Requiring Insurers to Waive Cost Sharing for Essential Workers
On November 27th, the New York State Department of Financial Services (DFS) extended emergency regulations which were initially published May 2nd that require DFS-regulated insurance plans to waive out-of-pocket costs (i.e., cost-sharing, deductibles, copayments, and coinsurance) for in-network mental health services for frontline essential workers during the COVID-19 emergency.
Frontline essential workers include:
- Health care workers;
- First responders;
- Transit workers;
- Food service workers;
- Retail workers at essential businesses; and
- Other frontline essential employees who directly interact with the public.
These regulations will now expire on January 26, 2021 unless further extended. The regulations are available here.
DOH Issues Updated Health Home Verbal Consent Guidance
On November 25th, the New York State Department of Health (DOH) released updated guidance (available here) for Health Homes regarding the phase-out of temporary verbal consents. This guidance applies to all Health Homes, including those serving adults, children, and individuals with intellectual and/or developmental disabilities, also known as Care Coordination Organizations (CCOs). In October 26th guidance (available here), DOH directed all Health Homes to begin obtaining wet or electronic signatures for all members with only verbal consents in place or disenroll them within 45 days. DOH is amending the previous guidance as follows:
- The compliance window for obtaining signed Health Home consent (wet or electronic signature) for members with only verbal consent on file has been extended from 45 days to 60 days to allow Health Home Care Managers (HHCM) additional time to notify and work with members to obtain signed consent. All attempts to obtain wet or electronic signatures must be documented in the case record (e.g. electronic, through mail, face-to-face, etc.).
- If a signed consent cannot be obtained within 60 days, the HHCM must document the reason. Members who are engaged and receiving core HHCM services should not be disenrolled and the HHCM should continue to have conversations with the member that includes the importance of having signed consent on file in order to provide HHCM services and to maintain enrollment status.
- Members no longer engaged in HHCM services nor receiving appropriate and necessary core services should be disenrolled.
The HHCM may accept a consent from a member that is either signed and submitted electronically or a wet signature that is sent via mail, email/scan, or fax.
Updated Guidance Documents
The following New York State guidance document has been recently released: