March 24th Newsletter - Sachs Policy Group

State Updates

Governor Cuomo Expands Scope of Practice for Physician Extenders

Yesterday (March 23^rd), Governor Cuomo signed Executive Order 202.10 (available here), containing new directives intended to address the novel coronavirus (COVID-19) emergency. This Executive Order focuses on:

Expanding scope of practice and easing limitations on supervision of physician assistants, students, and other extenders;
Further increasing hospital capacity, including giving DOH the power to suspend, revoke, and replace a hospital’s operating certificate if it is unable to meet expanded capacity requirements;
Removing limitations on ambulance providers operating across jurisdictions; and
Allowing any CLIA-certified laboratory meeting federal quality standards to test for COVID-19.

It also orders a general relief from recordkeeping requirements for health care providers, as long as it is done reasonably and in good faith to respond to COVID-19. Any person who fails to maintain such records, including treatment records and diagnostic codes for billing purposes, will have immunity from liability during this period. The main provisions of the Executive Order are further detailed below:

Hospital/Facility Capacity

Direct general hospitals, ambulatory surgery centers, office-based surgery practices, and diagnostic and treatment centers to take all measures necessary to increase the number of beds available to patients.
Authorize the Commissioner of Health to suspend or revoke the operating certificate of a general hospital if they are unable to meet the requirements of capacity directives.
Authorize the Commissioner of Health to designate a health care facility as a trauma center or to extend or modify the designation of a current facility as a trauma center.
Allow hospice residences to designate beds as dually certified inpatient beds.

Workforce

Permit advance practice registered nurses with a related doctorate or master’s degree to administer anesthesia without the supervision of a qualified physician.
Allow nurse practitioners, physician assistants, and special assistants to provide medical services appropriate to their education, training, and experience without oversight from or a collaborating agreement with a physician.
Permit radiologic technologists and respiratory therapists licensed in another state to practice in New York State without penalty.
Allow radiologic technologists, physician assistants, registered professional nurses, licensed practical nurses, and nurse practitioners licensed but not registered in New York State to practice without penalty.
Authorize certified or registered pharmacy technicians to assist in compounding, preparing, labeling, or dispensing drugs for prescriptions or home infusion medication orders under the supervision of a licensed pharmacist.
Ensure that all physicians, physician assistants, special assistants, nurse practitioners, licensed registered professional nurses, and licensed practical nurses are immune from civil liability during the course of providing medical services related to the COVID-19 outbreak, unless related to gross negligence.
Authorize any health care facility to allow students on track to become licensed health care professionals in New York State to volunteer at the facility for educational credit without securing a clinical affiliation agreement.
Remove limits on working hours for physicians and postgraduate trainees.
Allow graduates of foreign medical schools with at least one year of graduate medical education to provide patient care in hospitals.
Waive the responsibilities of the hospital governing body to ensure adequate staffing and allow for the use of qualified volunteers or personnel affiliated with other general hospitals.
Require licensed health insurance companies to provide a list of all personnel with a professional licensure or degree as a medical doctor, physician assistant, licensed registered nurse, licensed nurse practitioner, or licensed practical nurse.

Emergency Medical Services (EMS)

Eliminate restrictions on approved ambulance services or providers operating outside their primary territory (with prior approval).
Allow EMS to transport patients to locations other than health care facilities (with prior approval).
Permit EMS personnel to operate under the advice and direction of a nurse practitioner, physician assistant, or paramedic under the supervision of a physician.
Suspend or modify equipment or vehicle requirements to ensure sustainability of EMS operations.
Permit the issue of provisional EMS provider certifications to qualified individuals.
Extend all existing EMS provider certifications for one year and suspend or modify recertification requirements.
Allow any EMS provider certified or licensed by another state to provide EMS within New York State.

Laboratory/Testing

Allow laboratories meeting the necessary requirements and quality standards to test for the virus that causes COVID-19.
Authorize registered nurses to order the collection of throat or nasopharyngeal swab specimens for testing from individuals suspected of being infected with COVID-19.
Prohibit any pharmacist from dispensing the investigative drugs for COVID-19 except when prescribed for another FDA-approved indication or as part of a State-approved clinical trial related to COVID-19.

New York State Submits Medicaid 1135 Waiver Request to CMS

Yesterday (March 23^rd) New York State submitted an 1135 waiver request to the Centers for Medicare and Medicaid Services (CMS) that seeks various regulatory flexibilities intended to help the State combat the COVID-19 emergency. CMS has already approved 1135 waiver requests in 13 other states (see the federal section below). The text of the waiver is expected to be publicly published shortly.

New York State is requesting waivers in the following areas:

Provider screening and enrollment requirements;
Hospital requirements, including those related to discharge planning, patient rights, and offsite billing;
Health Insurance Portability and Accountability Act (HIPAA) requirements;
Emergency Medical Treatment and Labor Act requirements;
Fair Hearing timeframes;
Critical Access Hospital bed limits;
Institutions of Mental Disease requirements;
Health Home requirements, including those related to face-to-face visits and consent procedures;
Skilled Nursing Facilities (SNFs) and long-term care requirements;
Community based long-term care services and community-based mental health, outpatient, and addiction supports and services requirements;
Hospice requirements and deadlines;
Telehealth flexibilities;
Physician referrals;
Laboratory regulations;
Benefit and authorization requirements;
Managed care requirements, including those related to Programs of All-Inclusive Care to the Elderly (PACE); and
Medicaid coverage extensions.

Updated DOH Medicaid Telehealth Guidance

Yesterday (March 23^rd), the New York State Department of Health (DOH) revised its Medicaid Update (available here) that provides information on the use of telehealth, including telephonic communication, during the COVID-19 emergency. The revised guidance provides additional information and clarification on telephonic reimbursement, including which provider types and services should be billed under which category and new rate codes for school-based health centers. In particular:

LHCSA and CHHA assessments, evaluations, and RN visits may be provided telephonically and billed using existing rate codes;
HCBS and peer supports may also be provided telephonically and billed using existing rate codes;
Rules for Article 28 clinics (that are not FQHCs) for FFS billing have been modified, indicating that Article 28 clinic providers working from home may bill Medicaid using an appropriate CPT code at the physician fee schedule rate.

DHSES Briefings on FEMA Disaster Grants

The New York State Division of Homeland Security and Emergency Services (DHSES) Office of Recovery Programs will hold several applicant briefings to discuss the federal funding that may be available to them from the Federal Emergency Management Administration (FEMA) during the COVID-19 emergency. Eligible applicants may include private not-for-profit organizations such as:

Clinics;
Hospitals and related facilities (including extended-care units, home health programs, laboratories, and other units);
Hospices;
Nursing homes;
Long-term care facilities;
Outpatient facilities; and
Other facilities that provide inpatient care for convalescent or chronic disease patients.

The briefings will provide further guidance and information on eligible applicants and activities for FEMA disaster grants. FEMA will determine final applicant eligibility for grants. The briefings schedule is available here.

Federal Update

Senate on Verge of Passing $2T Coronavirus Emergency Package

Senate leadership, in coordination with House leadership and the White House, is reportedly close to finalizing negotiations on a third COVID-19 bill, called the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The value of the stimulus funding and other economic stabilization measures in the CARES Act has been estimated as high as $2 trillion. Provisions of the bill include small business support, loan forgiveness, unemployment assistance, emergency employee flexibility and compensation, improvements to emergency supply stockpiles, employment and education waivers, revised COVID-19 related reimbursements and coverage rules, and more. Details will be provided in a future summary after the bill passes.

CMS Approves 1135 Waivers for 11 States in Response to COVID-19

Yesterday (March 23^rd), CMS approved an additional 11 state Medicaid waiver requests under Section 1135 of the Social Security Act, bringing the total number of states that have received 1135 waivers in response to the COVID-19 emergency to 13. Each of the waivers allow for flexibilities in providing Medicaid to state beneficiaries through regulatory changes, including suspension of prior authorization and provider enrollment requirements, suspension of certain nursing home pre-admission reviews, and allowing reimbursement to providers for care delivered in alternative settings due to facility evacuations, among others.

Links to the approvals for the waivers for each of the 11 additional states are below: