Additional Kentucky Healthcare Provider Resources

March 20, 2020

With information moving so quickly and guidance being updated on what seems to be an hourly basis, we have set forth below several links to key resource pages for Kentucky healthcare providers.

  • KY COVID-19 Website: Scroll down the main page and click on + Healthcare Providers to access a multitude of linked resources.
  • Dedicated CHFS COVID-19 webpage.
  • Department of Medicaid Services (DMS) COVID-19 announcements are posted to the sidebar here.
  • Laboratory Services for COVID-19 are found here.
  • DCBS COVID-19 announcements, including child care, are posted to the sidebar here.

CDC

March 20, 2020

The CDC has a wealth of COVID-19 resources for healthcare professionals, including Resources for Healthcare Professionals Caring for COVID-19 Patients aimed at reducing the risk of spreading the virus to our treasured warriors on the front lines of the COVID-19 battle.

  • Elective Procedures: The letter found at the following link directs healthcare providers to cancel all procedures that, in the opinion of a physician, the delay will not cause harm to the patient or negatively affect the patient’s life expectancy, effective midnight, March 18, 2020. Click here. Most Kentucky professional healthcare licensing boards, in line with the Governor’s directive and the March 18, 2020 directive in the above list, have also issued letters regarding the cancellation of elective procedures.
  • Visitors: This guidance includes information regarding visitor limitations in acute care facilities.
  • Rehabilitation Services: The Letter to Therapeutic Association Members advises that PT/OT/SLP and respiratory therapists shall continue to work in acute care, inpatient rehab settings and skilled nursing facilities to help patients heal sooner and return home, but must have all CDC recommended protective measures in place. However, all outpatient rehab settings are to close and transition to telehealth immediately. In-home rehab is to be “extremely limited” to prevent readmission to acute care or long term care settings. Additional resources related to rehabilitation services may be found here.

Kentucky Medicaid Guidance

March 20, 2020
Kentucky Medicaid issued the guidance to providers in connection with the response to COVID-19. Highlights of the guidance include:

  • waiver of cost-sharing for services associated with COVID-19;
  • elimination of prior authorization for COVID-19 related services;
  • permission to use of certain codes for FaceTime and telephonic communication with ESTABLISHED patients;
  • temporary use of certain codes for evaluation of electronic data sent by ESTABLISHED patients via email; and
  • allowing early refills for 30, 60, and 90 day supply of medications.

This guidance was issued on March 11, 2020 and so certain of its provisions have been updated in other guidance issued by Kentucky Medicaid.

EMTALA

March 20, 2020

In anticipation of increased testing and treatment needs, CMS issued guidance on the Emergency Medical Treatment and Labor Act (EMTALA) requirements and implications related to COVID-19. Click here. CMS is continuing to refine and evolve this guidance as emergency departments manage patient surges and operations such as drive-through testing clinics and patient overflow sites continue to emerge.

Telehealth

March 20, 2020

The use of telehealth and telecommunications technologies is seen as a principal way to treat patients during this time of self-isolation. However, to effectively use telehealth during a state of emergency that requires Americans to stay home meant Medicare and Medicaid would need to relax telehealth rules that restricted its use to HIPAA-compliant technology and that required patients to travel outside their home to a telehealth site, among other changes. The most significant changes for telehealth came from the Centers for Medicare and Medicaid Services (CMS), which the CMS laid out in its Telehealth Fact Sheet on March 17, 2020. To address the relaxation of rules related to HIPAA-compliance technology, the Office for Civil Rights (“OCR”), the agency responsible for enforcement of HIPAA, followed up with the following guidance: Notification of Enforcement Discretion for telehealth remote communications during the COVID-19 nationwide public health emergency. To read a summary of the new OCR guidance, click here.

The Kentucky Department for Medicaid Services followed suit and released its own guidance relaxing telehealth rules. The guidance makes it clear that use of non-HIPAA compliant telehealth communication tools are available for delivery of Medicaid telehealth services. It also provides for audio-only telephone services. Click here. See also new 907 KAR 2:300E: Click here. For an overview of Kentucky’s initiative click here.

1135 Waivers

March 20, 2020

On March 13, 2020, HHS Secretary Alex Azar issued several waivers of certain Medicare, Medicaid and Children’s Health Insurance Program (CHIP) requirements pursuant to Section 1135 of the Social Security Act. Click here. CMS published specific “blanket” waivers and encouraged the states to request waivers for federal components and requirements of their Medicaid and CHIP programs. Click here. Several states have already submitted requests to their CMS Regional Offices, and CMS has issued certain 1135 waivers to the states of Florida and Washington. The Kentucky Hospital Association coordinated with many of Kentucky’s health care providers, legal experts, and other contributors to compose Kentucky’s list of most-needed 1135 waivers for consideration by CMS. Wyatt’s Healthcare Law Service Team has assisted several clients in contributions to the state waiver request. CMS has published additional guidance and FAQs for state Medicaid and CHIP Agencies: Click here.

HIPAA

March 27, 2020

The U.S. Department for Health & Human Services Office of Civil Rights (OCR) released guidance on March 24, 2020 to ensure that first responders and others have the information needed to treat the patient and to protect themselves and prevent spreading coronavirus while also complying with HIPAA. This guidance clarifies how health care providers, health departments, and first responders may share information about individuals who have been infected with or exposed to coronavirus. The guidance explains when a HIPAA covered entity may disclose protected health information, such as the name or other identifying information about individuals, without their HIPAA authorization, and provides helpful examples.

March 20, 2020

  • Stimulus Package: The United States Congress is currently looking to pass a 1 trillion dollar stimulus package that would include aid to the healthcare industry, including elimination of the restriction on Medicare payments this year and continued limitation on restrictions on the use of telehealth during the COVID-19 pandemic. This legislation is not yet final and is expected to change as the debate in Congress continues.
  • Families First Coronavirus Response Act, H.R. 6201: This legislation includes several provisions applicable to healthcare providers, including the following.
    • Medicaid Supplement: The Act provides a temporary, 6.2 percentage-point increase to the federal government’s share of Medicaid matching funds (known as the Federal medical assistance percentage or FMAP).
    • Health Care Provider Exception: Employers who are health care providers (which includes hospitals, nursing homes, etc.) or emergency responders may elect to exclude their employees from the public health emergency leave provisions of the Act.

Force Majeure: Understanding Contractual Obligations Amidst COVID-19 Uncertainty

March 17, 2020

The rapidly developing COVID-19 pandemic has cast a cloud of uncertainty over all aspects of routine decision-making. Everyday life continues to be affected as society grapples with the most effective way to adapt and move forward. Linked here is an article written for the Memphis Business Journal which offers several high-level considerations regarding Force Majeure clauses and the issues to consider.