Despite significant legal obstacles, a group of plaintiffs filed a class action complaint alleging the Queens Adult Care Center violated Title III of the Americans with Disabilities Act and its precursor, Section 504 of Rehabilitation Act, by failing to provide a level of care to safeguard their health and safety at its assisted living facility during the COVID-19 pandemic. Read more here.
As they work to combat the surging COVID-19 virus, healthcare providers recently were reminded by legislators and regulators of the importance of data security and privacy protections. Read more here.
As the public health emergency from the COVID-19 pandemic eases and some states begin to open the economy, physician practices and other health care services will begin to prepare to welcome their patients back to their offices to provide non-COVID-19 health care services. In anticipation of the re-opening, the Centers for Medicare and Medicaid Services (CMS) has issued updated guidance for healthcare providers previously restricted from providing non-essential healthcare as reopen and transition to in-person care for non-emergent, non-COVID-19 conditions.
Generally, CMS recommends that providers evaluate their access to and availability of PPE, availability of their workforce, facility readiness, and COVID-19 testing capacity as they strive to protect patients’ safety as they resume the provision of non-essential health care services once state or local restrictions are lifted (referred to herein as the Gating Criteria). Healthcare providers should consider the following key factors as they begin to reopen to the general public to minimize the risk of contagion and assure patients and staff are safe and comfortable while seeking care at the office.
- Telehealth: Is the practice prepared to provide services through telehealth modalities? Even as the pandemic slows and the economy begins to open, the CMS waivers expanding the authorized use of telehealth remain in effect, permitting practices to offer non-COVID-19 services through telehealth. CMS continues to strongly encourage use of telehealth modalities whenever possible, even as providers resume in-person care and services, to minimize unnecessary possibility of exposure and maximize patient and staff safety.
- Operational preparedness: Consider triage protocols to determine which patients may or should be seen in person in the office. How many appointments will be scheduled? Continue to operate with waiting rooms, adopt “wait in vehicles” mandates, or bring patients directly to examination rooms? Do waiting rooms need to be re-configured to accommodate social-distancing mandates?
- Outward-facing protocols: What do patients need to know before they arrive or as a condition of arriving at your office? For instance, will patients be required to take their temperature before arriving for appointments, be COVID-19 symptom-free, wear masks or other PPE upon arrival, or be permitted to bring someone with them?
- Informed Consent: Although informed consent typically addresses the risks and benefits of a particular treatment or procedure for a medical condition, the COVID-19 pandemic introduces additional risks of seeking that treatment or procedure that are unrelated to the patient’s underlying condition, the procedure, or the treatment therefor. Should informed consent forms include the risk of exposure to COVID-19 as a risk of the treatment or procedure sought for a non-COVID-19 condition where the risk is realized only if the patient seeks in-person care? As the pandemic slows and the declarations of emergency abate, consider your informed consent processes. Will you require patients seeking non-COVID care and treatment to sign a consent for treatment that includes the risk of COVID-19 contagion?
- Workforce: Consider whether and how employees should be tested for COVID-19 before returning to work or be temperature-checked daily prior to arriving at work. Establish protocols precluding employees with symptoms from reporting to the workplace.
- Environment of care. Healthcare providers must assure robust protocols for cleaning and disinfecting examination and procedure rooms, equipment, and common areas to assure patient and staff safety. Are there sufficient environmental services staff duly qualified, trained, and available?
- Surge capacity. Even as the pandemic eases and Gating Criteria are met, as long as no effective vaccine or treatment is available, the risk of capacity surges remains. Healthcare providers need to assure that their supplies of PPE, medication, equipment, and other relevant office supplies remain adequate if there is a need to respond to a potential surge.
Finally, even as in-person health care services become available to the public, healthcare providers are encouraged to develop contingency plans to address further disruptions to non-essential services should the public health emergency needs re-emerge.
Please contact a Jackson Lewis attorney with any questions about the CMS Guidance or other issues.
The Families First Coronavirus Response Act, enacted on March 18, 2020, appropriated $1 billion to reimburse providers for conducting COVID-19 testing for the uninsured. In addition, part of the $100 billion Provider Relief Fund established by the Coronavirus Aid, Relief, and Economic Security Act, enacted on March 27, 2020, will be used to reimburse hospitals and other health care providers for expenses related to the treatment of uninsured individuals with COVID-19.
The Health Resources & Services Administration (HRSA) released guidance on the claims reimbursement process under the COVID-19 Uninsured Program (Program) and opened the COVID-19 Uninsured Program Portal. The timeline for implementation of the claims process is as follows:
- April 27 – Sign up period begins for the program
- April 29 – On Demand training starts
- May 6 – Begin submitting claims electronically
- Mid-May – Begin receiving reimbursement
Eligible claims include qualifying testing for COVID-19 and treatment services with a primary COVID-19 diagnosis, performed on or after February 4, 2020. This includes the following:
- Specimen collection, diagnostic and antibody testing.
- Testing-related visits, including in the following settings: office, urgent care, emergency room or via telehealth.
- Treatment, including office visit (including via telehealth), emergency room, inpatient, outpatient/observation, skilled nursing facility, long-term acute care, acute inpatient rehab, home health, DME (e.g., oxygen, ventilator), emergency ground ambulance transportation, non-emergent patient transfers via ground ambulance, and FDA-approved drugs as they become available for COVID-19 treatment and administered as part of an inpatient stay.
- FDA-approved vaccine, when available.
For inpatient claims, the date of admittance must be on or after February 4th. Services not covered by traditional Medicare will not be covered under the Program. In addition, the following services are excluded:
- Any treatment without a COVID-19 primary diagnosis, except for pregnancy when the COVID-19 code may be listed as secondary.
- Hospice services.
- Outpatient prescription drugs.
A provider on the U.S. Department of Health and Human Services, Office of the Inspector General list of excluded individuals/entities and/or any provider who has had their Medicare enrollment revoked by the Centers for Medicare & Medicaid Services is ineligible to receive funding, directly or indirectly, from the Program.
The HRSA has contracted with UnitedHealth Group to administer the Program. Claims must be submitted electronically and will generally be reimbursed at Medicare rates, subject to available funding. The required steps include: enrolling as a provider participant, checking patient eligibility, submitting patient information, submitting claims, and receiving payment via direct deposit. Providers will be required to attest to the following:
- The provider has checked for health care coverage eligibility and confirmed that the patient is uninsured.
- The provider will accept the Program reimbursement as payment in full.
- The provider agrees not to balance bill the patient.
- The provider agrees to the Program terms and conditions and acknowledges that payment is made subject to potential post-reimbursement audit review.
All claims submitted must be complete and final and no interim bills or corrected claims will be accepted. There will be no adjustments to payment once claims reimbursements are made. Additional information regarding reimbursement rates can be found here.
For additional guidance on this issue, please contact a Jackson Lewis attorney.
In an unpublished decision, the National Labor Relations Board (NLRB) has denied an acute- care hospital’s request to stay a representation election based on the COVID-19 pandemic. Crozer-Chester Medical Center, Case 04-RC-257107 (Apr. 23, 2020). The union’s representation petition was filed on February 28, 2020. The union, which did not represent any of the other employees in the hospital, sought to represent separate units of all unrepresented technical and professional employees employed at the hospital. Our colleagues in the Labor and Preventive Practices practice group explains the decision. Read more here.
New Jersey Governor Phil Murphy has signed a bill requiring hospitals licensed under New Jersey Statutes Title 26 to report demographic data on COVID-19 cases. To the extent they have not already done so, hospitals affected by the new law should initiate data collection protocols on the demographics of COVID-19 patients by including age, ethnicity, gender, and race. Read more.
The New Jersey Legislature has passed a bill requiring hospitals licensed under New Jersey Statutes Title 26 to report COVID-19-related demographic data (e.g., age, ethnicity, gender, and race) to the New Jersey Department of Health (DOH). Previously, the Governor required specific healthcare facilities to report personal protective equipment inventory (see our article, New Jersey Authorizes Director of Emergency Management to Commandeer Personal Services, Real Property) and capacity information (see our article, New Jersey: Designated ‘Health Care Facilities’ to Submit Daily Reports on Capacity, Supplies) to allocate resources to respond to the COVID-19 crisis. The new law apparently would require demographic reports to help gauge the response to the pandemic. Read more.
When can employees who may have been exposed to COVID-19 return to work? Guidance from the Centers for Disease Control and Prevention (CDC) advises that “critical infrastructure workers may be permitted to continue work following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented to protect them and the community.” This guidance applies only to critical infrastructure workers (as defined in the Department of Homeland Security CISA guidance).
The CDC explains that potential exposure means “being a household contact or having close contact within 6 feet of an individual with confirmed or suspected COVID-19.” Read more.
New Jersey Governor Phil Murphy has signed an Executive Order directing “health care facilities” designated by the Office of Emergency Management (OEM) to submit reports on capacity and supplies by 10:00 a.m. each day. The Governor signed Executive Order 111 on March 28, 2020. It is the tenth EO he has signed since the onset of the coronavirus (COVID-19) crisis. EO 111 goes into effect immediately. Read more.
The Department of Labor has been hard at work issuing FAQs to try to explain the provisions of the Families First Coronavirus Response Act before it goes into effect on April 1, 2020. To see earlier reports on these FAQs, see our blog posts on March 24th and March 27th. The latest FAQs (we are now up to 59 FAQs from the DOL on this subject), include a number of helpful provisions for employers, in particular health care employers, some of which are different than what had previously been reported.
Employers should keep in mind that FAQs may be considered by courts as informal guidance but do not have the force of law (or even of regulations, which have not yet been issued by the DOL). As is evident by the manner in which the DOL is currently publishing these, they can also be changed by the DOL without notice. Therefore, to the extent employers rely upon these, before official regulations are issued by the DOL, they should check to make sure they are reviewing the current version and print a copy of the DOL’s website page containing these FAQs at that time, which may be necessary to establish good faith, if the information later changes.
The FFCRA allows employers of health care providers and emergency responders to exclude these employees from the leave provisions under both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. In its definitions, the FFCRA defined “health care provider” to have the same meaning as under the FMLA (which is limited primarily to doctors and other providers). The DOL has clarified in its FAQs that the term “health care provider” actually has two different meanings in the act. According to the DOL, the definition section which limits health care providers to doctors and specific individuals, only applies to define the individual who advises an employee to self-quarantine under the second basis for paid sick leave. The DOL now provides a new, second definition of health care provider for the purpose of determining who can be excluded under the health care employee exception. Below are the relevant FAQs from the DOL on the definition of health care provider and emergency responders. You should consult with counsel about how these FAQs and the FFCRA apply to your company’s own circumstances:
55. Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave?
The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.
56. Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?
For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.
57. Who is an emergency responder?
For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.
Please visit our COVID-19 resource webpage often to stay abreast of the developments or contact your JL attorney directly with any questions.