Healthcare Providers

On March 27, 2020, President Trump signed the Coronavirus Aid, Relief and Economic Security Act (the CARES Act) into law. Section 3221 of the CARES Act ratified fundamental changes to the Public Health Service Act, codified at 42 U.S.C. § 290dd-2 and associated regulations, which govern the confidentiality requirements of substance use disorder records, commonly known as 42 C.F.R. Part 2, or simply, “Part 2.” Substance use disorder (SUD) records are defined broadly as “[r]ecords of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research.” The changes are significant and align with the increasing movement to align the Part 2 rules with the Health Insurance Portability and Accountability Act (HIPAA). The CARES Act requires the Department of Health and Human Services (HHS) to revise the Part 2 regulations within 12 months to comply with the CARES Act.

The Families First Coronavirus Response Act (“FFCRA”) goes into effect today, April 1, 2020, and applies to leave taken between April 1, 2020 and December 31, 2020.  The FFCRA expands certain medical leave rights previously established by the Family and Medical Leave Act (“E-FMLA”) to provide up to twelve (12) weeks of paid, job-protected leave for employees with school closure or childcare coverage issues related to the current coronavirus pandemic.  The FFCRA also provides for two (2) weeks of paid sick leave under the Emergency Paid Sick Leave Act (“E-PSLA”) for certain COVID-19-related reasons (the E-FMLA and E-PSLA are collectively referred to as “Expanded Leave”).[1]  However, employers who employ “health care providers” may, but are not required to, exempt these individuals from Expanded Leave.  Most, if not all, of a hospice’s employees will fall within the broad definition of “health care provider.”  Therefore, hospices will need to evaluate who of its employees it will exempt or not, being certain to treat similarly situated employees equally and to consider the potential impact to its workforce.

Within the vision space there has been some question regarding the authority of Texas Optometry Board (“TOB”) over retailers of ophthalmic goods and optometrists that are in business with or employed by a physician licensed by the Texas Medical Board. On March 30, 2020, the Texas Attorney General published an opinion that may impact retailers of ophthalmic goods and optometrists that are in business with or employed by a physician licensed by the Texas Medical Board (“TMB”). Ophthalmology practices should review the opinion to determine whether changes to their business relationships with optometrists are necessary.

Updated Thursday, April 2, 2020

CMS 1135 waivers allow the U.S. Dep’t of Health and Human Services Secretary to temporarily waive or modify certain Medicare, Medicaid, Children’s Health Insurance Policy (CHIP), and Health Insurance Portability and Accountability Act (HIPAA) requirements to ensure that sufficient health care items and services are available to meet needs during a declared public health emergency.  Individual health care providers and associations may trigger additional waivers through feedback and requests to the Assistant Secretary for Preparedness and Response or CMS Regional Offices.

Updated Thursday, April 2, 2020

CMS 1135 waivers allow the U.S. Dep’t of Health and Human Services Secretary to temporarily waive or modify certain Medicare, Medicaid, Children’s Health Insurance Policy (CHIP), and Health Insurance Portability and Accountability Act (HIPAA) requirements to ensure that sufficient health care items and services are available to meet needs during a declared public health emergency.  Individual health care providers and associations may trigger additional waivers through feedback and requests to the Assistant Secretary for Preparedness and Response or CMS Regional Offices.

Updated April 3, 2020

In response to the growing Coronavirus pandemic, the Small Business Administration (“SBA”) will make loans available to businesses that employ fewer than 500 people (and in certain instances a larger number of employees) through the new Paycheck Protection Program (“PPP”). In this post we address some of the most frequently-asked questions about the PPP, and how eligible healthcare entities can apply.

On March 24, 2020, the Wisconsin Department of Health Services (DHS) prepared correspondence to the Center for Medicare and Medicaid Services (CMS) seeking waivers of certain Medicaid requirements pursuant to Section 1135 of the Social Security Act (42 U.S.C. § 1320b-5) due to the COVID-19 pandemic. The correspondence to CMS was shared on March 24, 2020 with the Wisconsin Legislature Joint Committee on Finance seeking their approval to submit the Section 1135 Waiver to CMS. The letter to CMS prepared by DHS states that Wisconsin is implementing all the blanket waivers issued by CMS on March 13, 2020 in Medicare, Medicaid and the Children’s Health Insurance Program (CHIP), to the extent applicable.

At Husch Blackwell we understand the financial hardships our healthcare industry clients face in the midst of the COVID-19 pandemic. While you have no doubt heard about the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act signed into law on Friday, March 27, 2020, we want to make sure you are aware of the estimated $377 billion in Small Business Administration (“SBA”) relief that may be available to you as an eligible small business. We encourage you to act immediately so that you may secure funding as quickly as possible.

In a March 24th letter to all of the nation’s Governors, Secretary Alex Azar of the Department of Health and Human Services (“HHS”) called upon states to take immediate action to loosen regulations that present obstacles to the delivery of effective in person and telehealth services during the COVID-19 emergency. In an effort to “carry out a whole-America response to the COVID-19 pandemic,” Secretary Azar asked governors to urgently take steps to “extend the capacity of the health care workforce.”

On March 17, 2020, the Department of Health and Human Services, Office of Civil Rights (OCR) issued guidance related to how Covered Entities can comply with HIPAA and the Privacy Rule and still disclose protected health information (PHI) about individuals infected with or exposed to COVID-19 to law enforcement, paramedics, other first responders, and public health authorities (Essential Providers).