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.

Medicare Quality Reporting Program Waivers

March 27, 2020

On March 22, 2020, CMS announced that it is granting exceptions from reporting requirements and extensions for clinicians, providers, hospitals and facilities who participate in Medicare’s quality reporting programs with regard to upcoming measure reporting and data submissions. Medicare extended the MIPS and ACO deadline of March 31, 2020 to April 30, 2020 but went on to say that MIPS clinicians who have not submitted anything by the new April 30 deadline will qualify automatically for the “extreme and uncontrollable circumstances” policy. The 4th quarter data submission deadline for hospitals and Post-Acute (PAC) programs is optional. Additionally, data submission deadlines in April and May 2020 will be optional for facilities. For additional information about the deadline extensions, automatic hardship qualifications and the impact on CMS’s calculations for the Medicare quality reporting and value-based purchasing programs, see the CMS press release here.

Revised CDC Testing Criteria

March 27, 2020

On March 24, 2020, the CDC updated the priorities for testing patients with suspected coronavirus infection.

Priority 1: Hospitalized patients and symptomatic healthcare workers.

Priority 2: Patients with symptoms who are in long-term care facilities, who are 65 years of age and older, who have underlying conditions, or who are first responders.

Priority 3: Individuals who are critical infrastructure workers with symptoms, individuals who do not meet any of the above categories by having symptoms, health care workers and first responders, and individuals with mild symptoms in communities experiencing high coronavirus hospitalizations.

Non-Priority Category: Individuals without symptoms

See the CDC COVID-19 Evaluating and Testing PUI webpage for additional information by clicking here.

Cessation of Non-Urgent and Non-Emergent In-Person Treatment


March 27, 2020

On March 23, 2020, the Kentucky Cabinet for Health and Family Services ordered all health care providers to cease all non-emergent, non-urgent in-person services and treatment, according to the following standards:

  • Emergent: any healthcare service that, were it not provided, is at high risk of resulting in serious and/or irreparable harm to a patient if not provided within 24 hours;
  • Urgent: any healthcare service that, were it not provided, is at high risk of resulting in serious and/or irreparable harm to a patient if not provided within 24 hours to 30 days; and
  • Non-Urgent: any healthcare service that, were it not provided, is unlikely to result in any serious and/or irreparable harm to a patient if not provided for more than 30 days.

Clinicians are urged to consider whether the service provided would still be retrospectively deemed necessary if the patient were to become infected by coronavirus and suffer serious or irreparable harm as a result. Clinicians are also urged to use newly expanded telehealth methods to deliver services whenever possible.

Criteria for Healthcare Workers to Return to Duty

March 27, 2020

The Centers for Disease Control has published guidance for allowing healthcare workers to resume work after a positive test result or suspicion of infection. The guidance provides two approaches to approve an employee’s return: either two negative tests for an employee who is fever free and has improved respiratory symptoms; or 72 hours have passed since recovery and at least seven days have passed since onset of symptoms. The guidance, incorporated in a notice from the Kentucky Department of Public Health, also describes precautions that should be taken following the employee’s return to work. To learn more, click here.

Outpatient Rehabilitation Provider Guidance

March 27, 2020

The Kentucky Cabinet for Health and Family Services issued several rounds of guidance related to outpatient rehabilitation services and ultimately encourages providers to determine which services are urgent or emergency versus non-urgent or non-emergent, as with other types of health services. The article authored by Wyatt attorneys Lindsay Scott and Victoria Fuller describes the most recent guidance here.

Letter from HHS Secretary Azar to Governors

March 27, 2020

HHS Secretary Azar sent a letter to all state Governors on March 24, 2020 urging them to take certain actions to expand the health care workforce in response to the coronavirus. These actions include relaxing scope of practice for professionals and allowing professionals to practice in a state even if they are licensed in other states. Between the Senate’s passage of SB 150 and the recent actions of Governor Beshear and the Kentucky Cabinet for Health and Family Services, Kentucky has already taken many of the steps recommended by the Secretary.

Telehealth (Kentucky Medicaid)

March 27, 2020

The Kentucky Department for Medicaid Services has issued several iterations of guidance regarding telehealth services. The latest guidance, issued March 25, 2020, may be found here. New guidance addresses, among other things, payment for rural health clinic telehealth services and the provision of orthotics and prosthetics utilizing telehealth. This guidance was issued the day before the Kentucky Senate passed Senate Bill 150, discussed above, which addresses telehealth more broadly.

Kentucky Section 1135 Waivers

March 27, 2020

CMS granted several Section 1135 waivers to Kentucky, noted in this letter. The waivers include an allowance for temporary Medicaid enrollment of providers who are enrolled in Medicare or another state’s Medicaid and a waiver of prior authorization and medical necessity processes in Medicaid fee for service. The waivers are effective March 1, 2020, unless noted in the letter. CMS did not address several additional waiver requests that Kentucky made but advised that it is continuing to review them.