Today, the Texas Governor, Greg Abbott, issued an Executive Order that significantly loosens his previous restrictions on the performance of elective surgeries by modifying prior language and adding an additional exception to the prohibition.  Specifically, the new Order states that, effective April 21, 2020 and continuing until 11:59 pm on May 8, 2020.

All licensed health care professionals and all licensed health care facilities shall postpone all surgeries and procedures that are not medically necessary to diagnose or correct a serious medical condition of, or to preserve the life of, a patient who without timely performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician; provided, however, that this prohibition shall not apply to either of the following:
Continue Reading Gov Abbott to allow more elective procedures 4-22

On April 14, 2020, CMS released a ruling that will increase the reimbursement for tests conducted to detect SARS–CoV–2 (the diagnosis of the virus that causes COVID–19) for tests utilizing “high throughput technologies.” The reimbursement under Medicare Part B for these laboratory tests will be raised from about $51 per test to $100 per test. This increase will begin with tests performed on or after March 18, 2020 and end when the national emergency is over.
Continue Reading CMS Doubles Payment for Diagnostic Lab COVID-19 Testing

As many of you are aware, the Centers for Medicare and Medicaid Services (CMS) along with many states have waived licensing and other requirements to allow healthcare providers to use non-hospital space to treat COVID-19 and non-COVID-19 patients, conduct testing and perform other clinical operations.  Healthcare providers across the country are exploring options to increase

On April 7, 2020, the U.S. District Court for the Western District of Arkansas granted summary judgment in favor of the U.S. Department of Health and Human Services (“DHHS”) in the closely-watched Northport case. In this case, certain nursing facility industry plaintiffs challenged the enforceability of the most recent iteration of the Centers for Medicare & Medicaid Services’ (“CMS”) rule governing the use of pre-dispute arbitration agreements with residents in long-term care (“LTC”) facilities that participate in the Medicare or Medicaid programs. In finding for the government, the Northport court held that the rule was a valid exercise of CMS’s authority under the Administrative Procedures Act (“APA”), was adopted in accordance with federal procedural rules, and does not conflict with the Federal Arbitration Act (“FAA”).
Continue Reading Federal District Court Upholds CMS Pre-Dispute Arbitration Rule

On 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.  Immediately following this guidance, on April 9, 2020, the HHS Office of Civil Rights (OCR) announced that it will exercise its enforcement discretion and will refrain from imposing penalties for violations of HIPAA for covered entities or business associates participating, in good faith, in the operation of COVID-19 Community-Based Testing Sites (CBTS) during the nationwide public health emergency.  The guidance regarding pharmacists testing for COVID-19 and the notice related to the relaxation of HIPAA rules comes on the heels of pharmacies, such as CVS and Walgreens, taking on a more active and critical role in the fight against the COVID-19 pandemic.
Continue Reading OCR to Waive Penalties for Community-Based COVID-19 Testing Sites

Centers for Medicare & Medicaid Services (CMS) held a Special Open Door Forum that was open to the public on April 8, 2020. CMS has been working to address the COVID-19 pandemic through 1) increasing hospital capacity, 2) rapid expansion of the healthcare workforce, 3) relaxing health care administrative requirements, and promoting the use of telehealth, which this call was focused on. The call provided an opportunity for health care providers to ask specific questions and express concerns about telehealth and Medicare reimbursement.
Continue Reading CMS Special Open Door Forum Addresses Pressing Telehealth Questions

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.
Continue Reading CARES Act Changes to Federal Substance Use Privacy Law

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.
Continue Reading COVID-19 Hospice How-To Series: Application of the FFCRA “Health Care Provider” Exemption to Hospices

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.
Continue Reading COVID-19 Update: Kansas 1135 Waivers and State Flexibilities

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.
Continue Reading COVID-19 Update: Missouri 1135 Waivers and State Flexibilities