There is a common saying in healthcare – “if it isn’t documented, it didn’t happen.” In the healthcare industry, and particularly in the long-term care (“LTC”) sector, clinical and operational documentation has long been critical for purposes of ensuring appropriate patient care and demonstrating compliance with the myriad regulatory requirements imposed by the Centers for Medicare & Medicaid Services (“CMS”), as well as state licensing and Medicaid agencies.

COVID-19 clearly presents unique challenges to LTC facilities. Although infection control and emergency planning protocols are not new to LTC facilities, the rapidly changing landscape of guidance issued by federal, state, and local regulatory bodies relating to COVID-19 has placed LTC facilities in a position where they must implement, and simultaneously communicate to staff, residents, and resident family members, new or updated clinical and operational protocols on a daily, if not hourly, basis. Given the urgency in ensuring appropriate protocols are in place, there is often an emphasis on action, as opposed to documenting the actions taken.

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.

The Federal Communications Commission (“FCC”) has opened the COVID-19 Telehealth Program Application portal and is now accepting applications for the COVID-19 Telehealth Program (the “Telehealth Program”). Authorized by the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), the Telehealth Program will provide $200 million in funding to assist eligible health care providers deliver telehealth services to patients in their homes or other mobile locations in an effort to combat the novel Coronavirus 2019 disease (“COVID-19”).  The funding is available for eligible health care providers responding to the COVID-19 pandemic by fully compensating providers for their telecommunication services, information services, and devices necessary for them to provide critical telehealth services. Notably, the Telehealth Program is not currently available to certain types of health care providers, including for-profit providers. Consequently, some providers, including local hospitals that are part of a larger for-profit health system, may find themselves ineligible for telehealth funding.

Consistent with NHPCO’s recent regulatory guidance, you may have received an unexpected payment on or about Friday, April 10th via Optum Bank with “HHSPAYMENT” as the payment description. That payment was from the Public Health and Social Services Emergency Fund (“Relief Fund”) which was set up pursuant to the CARES Act to provide $100 billion of relief funding to healthcare providers. The payment received is from the first $30 billion of the total $100 billion Relief Fund. The payment is not a loan; it is a grant that the hospice can use for qualified expenses and losses that meet a series of Terms and Conditions.

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…

We understand the growing concern surrounding Coronavirus Disease 2019 (COVID-19) and the issues and uncertainties many nonprofit organizations throughout the country are facing as a result of its impact on everyday life around the world.  From the most immediate issues – such as addressing workplace safety issues for employees and community stakeholders – to long term budgetary concerns – such as contingency planning for reduced funding due to the current bear market – we have provided a recap of the various issues the nonprofit executives should address.

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”).

hospital buildingOn April 3, 2020 the Wisconsin Department of Health Services (DHS) released DQA Memo 20-001, which establishes the process for hospitals and critical access hospitals (collectively, “hospitals”) to temporarily expand acute care inpatient services in order to maintain the health and safety of hospital patients during the COVID-19 public health emergency. This guidance is provided in conjunction with the blanket waivers recently issued under § 1135 of the Social Security Act by the Center for Medicare and Medicare (CMS). The CMS blanket waivers relieved certain regulatory burdens imposed on healthcare providers, such as the ability to expand inpatient beds to enable healthcare providers to focus on providing care during the current public health emergency.

In today’s COVID-19 edition of the Hospice Labor and Employment Trends series, Meg Pekarske talks with colleague Tom O’Day about the Families First Coronavirus Response Act (FFCRA). As one of Husch Blackwell’s healthcare-focused employment attorneys, Tom is uniquely situated to interpret the FFCRA for healthcare providers of all kinds, including hospices. Listen to our Hospice

…

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.