On Friday March 27, 2020, the President signed into law the bipartisan proposal for Coronavirus Aid, Relief, and Economic Security Act (known as the "CARES Act"). The CARES Act is a massive $2.2 trillion dollar stimulus package that contains a number of provisions to assist the United States economy combat the impact of COVID-19. This alert will summarize those provisions that apply specifically to health care providers.
PART II. ACCESS TO HEALTH CARE FOR COVID-19 PATIENTS
Subpart A - Coverage of Diagnostic Testing For COVID-19
SEC. 3202. Pricing of Diagnostic Testing. (a) Group health plans or a health insurance issuer are required to reimburse the provider of COVID-19 diagnostic testing as follows: (i) if the health plan or issuer has a negotiated rate, such rate shall apply throughout the period of this public health emergency; or (ii) if there is no negotiated rate with the provider, the health plan or issuer reimbursement shall be equal to the cash price for such service as listed on provider's internet site or the negotiated rate agreed to by the parties.
(b) Requirement to Publicize Cash Price for Diagnostic Testing for COVID-19. During this emergency period, each provider of a diagnostic test for COVID-19 shall make public the cash price for such test on its internet page. Failure of a testing provider to do so may result in civil monetary penalties.
SEC. 3203. Rapid Coverage of Preventive Services and Vaccines for Coronavirus. Group health plans and issuers must cover coronavirus preventive services, such as item, service, or immunization that is intended to prevent or mitigate coronavirus disease and that is evidenced based and recommended by the United States Preventive Services Task Force, or the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention.
Subpart B - Support for Health Care Providers
SEC. 3211. Supplemental Awards to Community Health Centers. $1,320,000,000 for fiscal year 2020 has been appropriated for the prevention, diagnosis and treatment of COVID-19.
SEC. 3215. Limitation on Liability For Volunteer Health Care Professionals During COVID-19 Emergency Response. Health care professionals shall not be liable under Federal or State law for any harm caused by an act or omission during the public health emergency if the professional is providing health care services in response to the COVID-19 emergency as a volunteer, while acting within their license, certification or registration, and with the good faith belief that the individual being treated is in need of health care services. This limitation of liability does not apply to: (i) willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the individual harmed; or (ii) a health care professional under the influence of drugs or alcohol. This law is intended to preempt applicable state law, and only apply to acts or omissions that occur until it is declared that there is no longer a public health emergency.
Subpart C - Miscellaneous Provisions
SEC. 3221. Confidentiality and disclosure of records relating to substance use disorder.
(a) The Act provides that once a patient gives written consent to a substance use disorder program, that patient's substance use disorder records "may be used or disclosed by a covered entity, business associate, or a [Part 2 program] for purposes of treatment, payment, and health care operations as permitted by" HIPAA. The Act further provides that recipients of such information may re-disclose such records in accordance with HIPAA.
(b) The Act aligns 42 C.F.R. Part 2 with HIPAA with respect to penalties, breach notification, notices of privacy practices, and requests for restrictions.
(c) The Act adds a new provision that prohibits entities from discriminating against an individual for the following purposes on the basis of information received from substance use disorder records: (i) admission, access to, or treatment for health care; (ii) hiring, firing, or terms of employment, or receipt of worker's compensation; (iii) the sale, rental, or continued rental of housing; (iv) access to federal, state, or local courts; and (v) access to, approval of, or maintenance of social services and benefits provided or funded by federal, state, or local government. Additionally, entities that receive federal funds are prohibited from discriminating against individuals with respect to access to services provided with such federal funds.
SEC. 3224. Guidance on protected health information.
Since the start of the COVID-19 crisis, HHS has issued numerous waivers and guidance documents on how covered entities and business associates should apply HIPAA in the current moment. The Act calls upon HHS to further advise the health care community on how to share patient health information during emergencies.
SEC. 3401. Reauthorization of Health Professions Workforce Programs. $23,711,000 has been appropriated for each fiscal years 2021 through 2025 which shall be appropriated for Health Professions Workforce programs with priority given to qualified applicants that train residents in rural areas and Tribes or Tribal Organizations in such areas.
SEC. 3704. Enhancing Medicare Telehealth Services For Federally Qualified Health Centers And Rural Health Clinics During Emergency Period. During the emergency period, the Secretary shall pay for telehealth services that are furnished via a telecommunications system by a Federally Qualified Health Center or a rural health clinic to an eligible telehealth individual. Payment rates shall be based on payment rates that are similar to the national average payment rates for comparable telehealth services under the physician fee schedule. Costs associated with telehealth services shall not be used to determine the amount of payment for Federally Qualified Health Centers under the Prospective Payment System.
SEC. 3706. Use of Telehealth To Conduct Face-To-Face Encounter Prior To Recertification Of Eligibility For Hospice Care During Emergency Period. During the emergency period, a hospice physician or nurse practitioner many conduct a face-to-face encounter via telehealth.
SEC. 3707. Encouraging Use Of Telecommunications Systems For Home Health Services Furnished During Emergency Period. The Secretary of HHS will consider ways to encourage the use of telecommunications systems, including remote patient monitoring consistent with the patient's plan of care. See 42 CFR section 409.46(e).
SEC. 3708. Improving Care Planning For Medicare Home Health Services. Allowing certification and recertification to be conducted by a physician, nurse practitioner, clinical nurse specialist or physician assistant. This change applies equally to Medicare and Medicaid.
SEC. 3709. Adjustment to Sequestration. As of May 1, 2020 through December 31, 2020, Medicare will be exempt from reduction under any sequestration order issued before or after the Act.
SEC. 3710. Medicare Hospital Inpatient Prospective Payment System Add-On Payment for Covid-19 Patients During Emergency Period. Discharges beginning as of the emergency period of an individual diagnosed with COVID-19, the weighting factor that would be assigned to the DRG shall be increased by 20% without regard to any budget neutrality provisions. Identification of these patients will be by diagnosis code, condition codes and other means determined by the Secretary. States who have section 1115A waivers shall not be precluded from enacting similar provisions.
SEC. 3711. Increasing Access to Post-Acute Care During Emergency Period. CMS is waiving the IRF 3 Hour Rule and the requirement that patients of an inpatient rehabilitation facility receive at least 15 hours of therapy per week. CMS is waiving the LTCH 50% rule for long-term care hospitals that do not have a discharge payment percentage for the period that is at least 50%. In addition, the site-neutral IPPS payment rules shall not apply for a discharge if the admission occurs during such emergency period and is in response to the public health emergency.
SEC. 3712. Revising Payment Rates for Durable Medical Equipment Under The Medicare Program Through Duration Of Emergency Period. For rural areas and non-contiguous areas, the transition rule set forth in 42 CFR 414.210(g)(9)(iii) shall apply for payment for DME through the emergency period. For non-rural and noncontiguous areas, items and services furnished on or after the date that is 30 days after the enactment of the Act, the Secretary will reimburse at a rate that is equal to 75% of the adjusted payment amount and 25% of the unadjusted payment amount set for in 414.210(g)(9)(iv) for the remainder of the public health emergency.
SEC. 3713. Coverage of The COVID-19 Vaccine Under Part B Of The Medicare Program Without Any Cost-Sharing. There shall be no deductible with respect to COVID-19 vaccine and its administration for Medicare and the same shall apply for Medicare Advantage plans.
SEC. 3714. Requiring Medicare Prescription Drug Plans And MA-PD Plans To Allow During The COVID-19 Emergency Period For Fills And Refills Of Covered Part D Drugs For Up To A 3-Month Supply. A prescription drug plan or MA-PD plan may permit a part D eligible individual to obtain a single fill or refill up to 90 days. A prescription drug plan or MA-PD many not permit a part D eligible individual to obtain a single fill or refill if it is inconsistent with a safety edit (e.g., opioid).
SEC. 3719. Expansion of The Medicare Hospital Accelerated Payment Program. The Secretary is activating the Accelerated Payment Program for Acute Care Hospitals, Children's Hospitals and Critical Access Hospitals are able to receive advance payments and have such advance payments which can be reconciled and repaid over time. See, https://www.shipmangoodwin.com/covid-19-cms-advances-payments-to-providers-and-suppliers.
Subtitle E - Health and Human Services Extenders; PART I - Medicare Provisions
SEC. 3813. Delay of DSH Reductions. DSH payment reductions pursuant to 42 U.S.C. 1396r-4(f)(7)(A) is amended to delay DSH reductions through to September 30, 2021.
SEC. 3814. Extension and Expansion of Community Mental Health Services Demonstration Program. 42 U.S.C. 1396a was amended to expand 2 more states in a 2-year demonstration program relating to community behavioral health, provided the states meet certain specified qualifications set forth in the amendment pursuant to the Act.
SEC. 3831. Extension for Community Health Centers, The National Health Service Corps, And Teaching Health Centers That Operate GME Programs. Community Health Center funding under the ACA was extended 6 months through to November 20, 2020 and increased to $4,000,000,000 for fiscal year 2020 and $668,493,151 for the period beginning on October 1, 2020 and ending on November 30, 2020. Funding extended 6 months through to November 30, 2020 by $21,141,096.
SEC. 5001. Department Of Health And Human Services Funding Authority. The Act authorizes appropriations of $100,000,000,000 to prevent, prepare for, and respond to COVID-19, through grants or other mechanisms, eligible health care providers for health care related expense or lost revenues that are attributable to coronavirus, provided that it does not result in duplicate payments. Reports will need to be submitted and documentation as determined by the Secretary for compliance. Eligible health care providers are public entities, Medicare or Medicaid enrolled suppliers and providers, and for-profit and not-for-profit entities not otherwise described above that provide diagnoses, testing or care of individuals with possible or actual cases of COVID-19. Funds shall also be available for building or construction of temporary structures, leasing of properties, medical supplies and equipment including PPE and testing supplies, training, emergency operation centers, retrofitting facilities and surge capacity.
Division B—Emergency Appropriations for Coronavirus Health Response and Agency Operations. Every laboratory that performs or analyzes a test that is intended to detect COVID-19 must report the results from each test to the Secretary of HHS as directed. The Secretary will prescribe what laboratories are subject to this reporting requirement, but expect it to apply to hospitals.
For a comprehensive summary of general CARES Act provisions, click here. For more information, please visit our Coronavirus Resource Center. If you have any questions, please contact any of the lawyers in our Health Law Practice Group.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
