On Monday, June 30, 2020, HHS spokesman Michael Caputo tweeted that HHS intends to extend the COVID-19 public health emergency before it expires on July 25, 2020. Once extended, the public health emergency will be effective for an additional 90 days. Extending the emergency declaration will allow providers to continue to use waivers and flexibilities issued to assist them in responding to the COVID-19 pandemic. Continue Reading HHS Extends COVID-19 Public Health Emergency

On June 12, 2020, the U.S. Department of Health and Human Services, Office for Civil Rights (OCR), issued guidance confirming HIPAA permits a covered healthcare provider (Provider) to use protected health information (PHI) to identify and contact recovered COVID-19 patients to inform them of how they can donate their blood and plasma.  As background, HIPAA permits the use of PHI without authorization for “healthcare operations” which include conducting population-based activities relating to improving health and case management.  A Provider’s use of PHI to contact former COVID-19 patients qualifies as a population-based activity because facilitating the supply of blood and plasma is likely to improve the Provider’s ability to conduct case management for current and future COVID-19 patients.

However, the OCR noted that marketing communications that encourage former COVID-19 patients to use specific blood and plasma centers are prohibited under HIPAA, unless it meets an exception to the definition of marketing.  For example, a Provider can make a marketing communication without a patient’s prior authorization if the Provider does not receive any direct or indirect payment from the third-party blood and plasma center in exchange for such communication.  Additionally, the OCR reiterated that as a covered entity, a Provider cannot disclose PHI to a third-party for marketing purposes without the patient’s authorization, unless the third-party making the solicitation is acting on behalf of the covered entity as a business associate.

If any providers are contemplating approaching patients who have recovered from COVID-19 related to the donation of blood plasma, please contact one of our healthcare attorneys to ensure that such communication is not prohibited under HIPAA.  We can assist in drafting those communications and ensuring that it meets HIPAA requirements.

On June 19, 2020, the Texas Department of Insurance adopted final rules specifying patient notice and election requirements in order for out-of-network providers to balance bill. The final rules replace similar emergency rules that were adopted on December 18, 2019.

Under the new rules, which are meant to implement legislation passed in 2019 by the Texas Legislature, out-of-network providers are prohibited from Balance Billing for nonemergency services unless a patient elects, in writing, to obtain the service from the out-of-network provider. The patient’s election is only effective if the provider satisfies the following notice and disclosure requirements: (1) the patient is provided with a “meaningful choice between an in-network provider and an out-of-network provider,” (2) the patient is not “coerced” into choosing the out-of-network provider, and (3) the patient is provided with a written notice and disclosure. The notice and disclosure statement must be signed by the patient at least 10 business days before receiving any care.[1] Continue Reading Texas Department of Insurance Rolls Out Final Rules on Out-Of-Network Notices and Disclosures

Under new guidance from the U.S. Department of Health and Human Services (HHS), hospices and other providers who received CARES Act Provider Relief Fund payments can hold off on filing their first quarterly compliance report, slated to be due on July 10, 2020.[1] Instead, HHS states that it will develop its own report and this report itself will contain “all information necessary for recipients of Provider Relief Fund payments to comply with” the quarterly reporting requirements under the Relief Fund Terms and Conditions.

Continue Reading Surprise for Providers As HHS Lifts Relief Fund July 10th Quarterly Compliance Report Deadline

On June 9 the Department of Health and Human Services announced that it will distribute $15 billion to Medicaid and Children’s Health Insurance Program (“CHIP”) providers. HHS spokesman Eric Hargan noted that this distribution will be focused on the approximately 275,000 providers who care for Medicaid and CHIP recipients but who did not receive funds in HHS’ April distribution of $50 billion. Mr. Hargan specifically mentioned providers such as dentists, pediatricians, assisted living facilities and behavioral health provider such as opioid treatment programs. Medicaid/CHIP providers can apply for the funds through the enhanced Provider Relief Portal by providing data that will determine their payments, including information concerning their payer mix to inform future distributions to providers who serve a large portion of Medicaid patients or provide a large amount of uncompensated care. Continue Reading Medicaid Provider Relief Fund Distribution of $15 billion

After the U.S. Department of Health and Human Services (“HHS”) automatically distributed $30 billion to providers as Tranche #1 Relief Fund payments based on 2019 Medicare fee-for-service payment data, HHS subsequently released a new formula that was based on 2018 “program service revenue” and intended to calculate providers’ payments under Relief Fund Tranches #1 and #2 cumulatively.  For providers whose Tranche #1 payments alone exceeded their expected payment under the new “program service revenue” formula, there have been ongoing questions about whether such providers were “overpaid” and needed to reject and return their Tranche #1 payments. Continue Reading CARES Act Provider Relief Fund: Connecting HHS’s Dots on Whether Your Tranche #1 Payment Is An Overpayment

Private nonprofit (“PNP”) organizations that own and/or operate medical facilities, such as hospitals and long term care facilities, are eligible for FEMA Public Assistance (PA) Program disaster relief funds.  Under the COVID-19 Emergency Declaration, FEMA is authorized to provide assistance for certain emergency protective measures if not funded by other federal agencies.  PNP healthcare organizations can apply for funding for emergency protective measures that are incurred as medical care costs.

Continue Reading COVID-19 Medical Care Costs Eligible for FEMA Public Assistance

For long-term care (“LTC”) facilities such as assisted living facilities and nursing homes, the high risk of spread once coronavirus disease 2019 (“COVID-19”) enters a facility  means such facilities must take immediate action to protect residents, families, and healthcare personnel from severe infections, hospitalizations, and death.  One such action that many States are taking is mandatory testing for the residents and employees of LTC facilities.  Specifically, several states, including West Virginia, South Carolina and Florida, are now requiring mandatory testing of residents and employees of skilled nursing and assisted living facilities.  Other states have similar proposed legislation in the works, including Pennsylvania, and it is likely that the number of states implementing such measures will continue to grow in the coming weeks and months. The White House has also indicated that the federal government may mandate testing nationwide for all nursing home residents and employees. While widespread testing of residents is an appropriate measure to protect the populations most vulnerable to the disease, mandatory testing raises the issue of whether and how to obtain informed consent from residents, many of whom use a medical powers of attorney (“MPOA”) for decisions regarding their care. Continue Reading Mandatory COVID-19 Testing Implications for LTC Facilities

Background

 On Wednesday, April 8, 2020, the U.S. Department of Health & Human Services (HHS) Office of the Assistant Secretary for Health released guidance authorizing pharmacists to “order and administer COVID-19 tests, including serology tests, that the Food and Drug Administration (FDA) has authorized.”  In its guidance, HHS granted licensed pharmacists immunity when administering or ordering FDA-authorized COVID-19 tests and stated that they will be considered a “covered person” under the Public Readiness and  Preparedness Act (PREP Act) when taking such actions. The PREP Act confers immunity for covered persons, from claims arising out of state law. For more background information about the April 8, 2020 HHS guidance, see our previous post available here. Continue Reading HHS Clarification on PREP Act Impact on State Licensing Laws: What it Means for Pharmacists’ COVID-19 Testing Capabilities

Many hospices understand the general framework established for use of relief payments from the U.S. Department of Health and Human Services. However, many questions remain about how to evaluate whether specific expenses and losses may be covered by the relief fund.

Join attorneys from Husch Blackwell’s Hospice & Palliative Care team and accounting professionals from Crowe as they discuss commonly asked questions from hospices across the country. They will share legal and accounting perspectives as well as practical considerations to help hospices as they operationalize their use of relief payments. Register here: https://bit.ly/2LNbLZ0 Continue Reading COVID-19 Town Hall for Hospices Legal and Accounting Perspectives on Commonly Asked Provider Relief Fund Questions