April 23rd Newsletter - Sachs Policy Group

State Updates

Governor Cuomo Announces Nursing Home Investigations, Preliminary Results of Statewide Antibody Testing

Today (April 23^rd), Governor Cuomo held a press conference during which he announced that while total hospitalizations and intubations continue to decrease, new hospitalizations per day and deaths per day remain relatively flat, with yesterday having 1,359 new hospitalizations and 431 deaths. Addressing COVID-19 infections in nursing homes, the Governor said that the State Department of Health (DOH), in partnership with Attorney General Letitia James, will be investigating violations of recent requirements regarding communication with families on COVID-19 test results and deaths. The State is directing nursing homes to immediately report the actions they have taken to comply with all DOH and Centers for Disease Control and Prevention (CDC) directives and guidance, including:

Requiring Personal Protective Equipment (PPE) and temperature checks for staff;
Isolating COVID-19 positive residents in quarantine;
Ensuring separate staff treat residents with COVID-19 and residents without COVID-19;
Transferring COVID-19 positive residents to another long-term care facility or other non-certified location if they cannot provide the appropriate care within the facility;
Notifying all residents and their family members within 24 hours if any resident tests positive for COVID-19 or suffers a COVID-19 related death; and
Readmitting residents who tested positive for COVID-19 only if they have the ability to provide an adequate level of care under DOH and CDC guidance.

DOH will inspect the facilities that have not complied with these directives, and will require such facilities to immediately submit an action plan. Facilities may also be subject to fines of up to $10,000 per violation or a loss of their operating license.

The Governor also announced preliminary results of the antibody study conducted this week on 3,000 New Yorkers across 19 counties. Preliminary results indicate that 13.9 percent of the sample tested positive for COVID-19 antibodies, which would translate to an estimated 2.7 million people infected statewide. The Governor noted that this number may lower the estimated death rate to approximately 0.5 percent, with the caveat that at-home deaths and other deaths that were not confirmed to be COVID-19 related are not included in the calculation. The preliminary results confirm regional disparities across the State, with significantly higher infection rates in the downstate area. The State will continue collecting results to increase sample size and inform next steps in the regional “reopening” process. The Governor also committed to completing more testing in minority communities and said that the State would be implementing additional testing in New York City public housing facilities and at faith-based institutions.

Guidelines for Resuming Elective Surgeries

Earlier this week, Governor Cuomo issued a press release (available here) that provided further details on when hospitals are permitted to resume elective outpatient treatment. According to the press release, a hospital may resume performing elective outpatient treatments on April 28^th if:

The hospital capacity (unoccupied bed rate) is over 25 percent for the county in which the individual hospital is located;
The individual hospital capacity is over 25 percent;
There have been fewer than 10 new COVID-19 hospitalizations in the county in which the individual hospital is located over the past 10 days;
There have been fewer than 10 new COVID-19 hospitalizations in the individual hospital; and
The patient receiving elective outpatient treatment tests negative for COVID-19.

If after resuming elective surgeries an individual hospital or the county in which it is located subsequently experiences a decrease in hospital capacity below the 25 percent threshold or an increase of 10 or more COVID-19 hospitalizations, elective surgeries must cease. Restrictions on elective surgeries will remain in place in Bronx, Queens, Rockland, Nassau, Clinton, Yates, Westchester, Albany, Richmond, Schuyler, Kings, Suffolk, New York, Dutchess, Sullivan, Ulster, Erie, Orange, and Rensselaer Counties as the State continues to monitor the rate of new COVID-19 infections in each region. Further guidance on resuming elective surgeries will be forthcoming.

DFS Directs Health Insurance Plans to Provide Relief to Hospitals

On April 22^nd, the New York State Department of Financial Services (DFS) released a press release (available here) and issued a circular letter (available here) directing regulated health insurance plans to provide financial and administrative relief to New York State hospitals. The directive requires health insurance plans to:

Immediately process for payment all outstanding hospital claims;
Suspend preauthorization requirements and concurrent review for all services performed at hospitals, including lab work and radiology, until June 18^th;
Refrain from conducting retrospective reviews of hospital claims until June 18^th (with limited exceptions, such as suspected fraudulent or abusive billing practices);
Cease all medical necessity denials related to emergency department and inpatient hospital treatment for COVID-19;
Delay the timeframes during which hospitals can initiate internal or external appeals until June 18^th; and
Work with hospitals in their network to provide additional financial assistance if needed and feasible, with a focus on community, rural, and safety-net hospitals.

The announcement and letter follow previous guidance issued by DFS to insurance plans on March 20^th (available here) suspending some prior-authorization and administrative requirements, including certain utilization review and notification requirements, for 90 days.

DOH Weekly Provider Webinar

Today, DOH held its weekly provider webinar (available for viewing here) which provided an epidemiological overview of the global, national, and local impact of COVID-19. The webinar also discussed testing expansion strategies, including efforts to make at-home test collection kits available to New Yorkers, and the preliminary results of the antibody survey that Governor Cuomo announced earlier today (see above). The webinar addressed this week’s provider update compilation (available here), which contains current and new guidance categorized by health advisory topics.

DOH’s weekly provider webinars are held every Thursday at 1pm and can be viewed here.

Updated Guidance Documents

DOH has released new guidance (available here) on the discontinuation of isolation for patients who are recovering from COVID-19, either in the hospital or within congregate care settings such as nursing homes or adult care homes. In these settings, DOH recommends using guidelines that are more stringent than the CDC’s published guidelines, given that hospitalized patients and older adults may have longer periods of infectivity, and the congregate living facilities that patients are returning to are likely to contain highly vulnerable residents. In addition to the CDC criteria, patients should have at least two consecutive negative COVID-19 test results, or if tests are not available, patients should undergo a waiting period of at least 14 days.

Additional recently released or revised New York State and City guidance documents are available below:

Federal Updates

CMS Releases COVID-19 Telehealth Toolkit for State Medicaid and CHIP Programs

Today, CMS released a telehealth toolkit intended to help states evaluate and expand their telehealth capabilities and coverage policies. The toolkit includes:

Information regarding Medicaid populations that are eligible for telehealth;
Information regarding which providers and practitioners are eligible to provide telehealth;
Coverage and reimbursement policies;
Technology requirements; and,
A special focus on providing telehealth to pediatric populations, with consideration of states’ consent and privacy laws.

The toolkit also includes a compilation of frequently asked questions and other resources available to states. The toolkit is available here.

CDC Awards CARES Act Funding to States and Localities

Today, the CDC awarded $631 million to 64 jurisdictions through the Epidemiology and Laboratory Capacity for Prevention and Control of Emerging Infectious Diseases (ELC) cooperative agreement. In total, New York State was awarded $46.6 million and New York City was awarded $43.9 million. The funds will be used to:

Identify cases, conduct contact tracing and follow up;
Implement appropriate containment measures;
Improve morbidity and mortality surveillance;
Enhance testing capacity;
Control COVID-19 in high-risk settings and protect vulnerable or high-risk populations; and
Work with healthcare systems to manage and monitor system capacity.

The list of all jurisdictions that were awarded funding is available here.

HHS OIG Updates FAQ on Using Discretion for Enforcement Actions

Today, the HHS Office of the Inspector General (OIG) updated its FAQ document (available here; first released April 3^rd) on its use of enforcement discretion regarding COVID-19-related arrangements that might otherwise incur civil monetary penalties. The FAQs now cover four situations:

Behavioral health (BH) providers accepting donations to supply free cell phones and/or data plans to needy patients to furnish medically necessary care;
Oncology practices offering free transportation to an alternate site when their offices are closed;
Providers offering free or discounted services to skilled nursing facilities (SNFs) and other long-term care facilities facing staffing shortages; and
Hospitals providing independent physicians with free access to a telehealth platform.

In each case, OIG stated that it would exercise its discretion not to pursue penalties, given certain conditions. Further questions can be submitted toOIGComplianceSuggestions@oig.hhs.gov.

FDA Authorizes First Diagnostic Test with At-Home Sample Collection

On April 21^st, the FDA issued a revised Emergency Use Authorization (EUA) for the LabCorp COVID-19 RT-PCR Test which includes permission for testing with a self-collection sample kit that may be used by patients at home. This is the first COVID-19 test approved for patients to collect a sample at home and mail it in for testing. The test is expected to be distributed in coming weeks. FDA has now authorized 43 EUAs total.