CMS Clarifies Hospital and CAH EMTALA Obligations for Drive Through Testing

On April 30, 2020, CMS updated its FAQs on EMTALA obligations during the COVID-19 public health emergency.  Specifically, drive through testing sites that have been established for COVID-19 testing alone, including on a hospital campus, do not have EMTALA implications. However, EMTALA would still apply if a patient who was seeking only COVID-19 testing made a request for medical treatment while on the hospital campus (e.g., parking lots, ER ambulance bays, etc.). If the person complains of or exhibits any symptoms of a medical condition, then that person should receive an appropriate MSE to determine whether an EMC exists. The revised FAQs are available here.

Increased Flexibility for ACOs

On April 30, 2020 CMS posted an interim final rule amending the Shared Savings Program regulations in order to address the impact of the COVID-19 pandemic and encourage continued participation by accountable care organizations (ACOs). Changes include: (1) allowing ACOs whose current agreement periods expire on December 31, 2020, the option to extend their existing agreement period by 1 year; (2) clarifying the applicability of the program’s extreme and uncontrollable circumstances policy to mitigate shared losses for the period of the COVID19 public health emergency; (3) adjusting program calculations to mitigate the impact of COVID-19 on ACOs; and (4) expanding the definition of primary care services for purposes of determining beneficiary assignment to include telehealth codes for virtual check-ins, e-visits, and telephonic communication.

Kentucky Healthcare Services Begin to Restart

Last week, Governor Andy Beshear and Kentucky’s Public Health Commissioner announced that, under Phase I of the healthcare facility reopening plan, non-urgent health care services that were suspended in March could gradually begin to restart on April 27 under certain conditions. On Monday, April 27, 2020, the Commissioner published guidance for the remaining phases of reopening:

a. Phase 1 – April 27, 2020 – Non-emergent/non-urgent outpatient healthcare services (not including surgery and invasive procedures) can resume

b. Phase 2 – May 6, 2020 – Outpatient/ambulatory surgery and invasive procedures may resume; acute care hospitals must maintain at least 30% in ICU and total bed capacity for COVID-19 patients

c. Phase 3 – May 13, 2020 – Inpatient non-emergent/non-urgent surgery and procedures may resume at 50% of pre-COVID-19 shutdown volume; acute care hospitals must maintain at least 30% in ICU and total bed capacity for COVID-19 patients

d. Phase 4 – May 27, 2020 – Inpatient non-emergent/non-urgent surgery and procedures may resume at the volume determined by each facility; acute care hospitals must maintain at least 30% in ICU and total bed capacity for COVID-19 patients

HHS Makes Second Disbursement of CARES Act Relief Funds to Providers

As we previously reported, on April 10, 2020, HHS issued the first disbursement of $30 billion from the CARES Act Emergency Relief Fund for Providers (Relief Fund). On April 24, 2020, HHS announced a second disbursement of $20 billion from the Relief Fund. Per HHS, the second disbursement is intended to “augment [recipients’] allocation so that the whole $50 billion general distribution is allocated proportional to providers’ share of 2018 net patient revenue.” While recipients did not have to apply in order to receive these funds, both disbursements are accompanied by Terms and Conditions that impose strict eligibility and usage requirements. Notably, HHS updated the first Terms and Conditions document to match several of the requirements included in the second Terms and Conditions document—however, the Terms and Conditions for these two disbursements are not entirely identical and there are differences. Kathie McDonald-McClure and Victoria Fuller of Wyatt prepared an update to their prior article about the second disbursement of Relief Funds, the Terms and Conditions and the compliance requirements. Click here to read more.

New Long-Term Care Facility Guidance

On April 24, 2020, the Centers for Medicare & Medicaid Services (CMS) published new guidance to State Survey Agencies regarding modifications meant to help long-term care facilities respond to the COVID-19 public health emergency. Specifically, CMS implemented a targeted inspection plan in March focused on urgent patient safety threats and infection control. Although the results of health inspections conducted after March 4, 2020 will be posted publicly, they will not be used to calculate a facility’s health inspection star ratings. CMS also attached FAQs that expand on guidance about visitation and operations of long-term care facilities during the COVID-19 emergency.

Wyatt Offers Data Security Tips for “New Normal” of Telework

As office workers and healthcare providers switched to telework and telehealth under state stay-at-home orders, malicious cyber actors were ramping up to take advantage of the security gaps that would inevitably accompany such a sudden transition. Wyatt’s data privacy counsel, Kathie McDonald-McClure and Margaret Levi, prepared an article with practical tips to protect employer and client data, as well as personal information, in the new normal of telework. Click here to read the article on the Wyatt HITECH Law blog, where you can also check out other COVID-19 related articles related to data and privacy in a high tech world.

CMS Announces Suspension of Advance Payment Programs

On April 26, 2020, the Centers for Medicare & Medicaid Services (CMS) announced significant changes to the Accelerated and Advance Payment programs, which had been significantly expanded on March 28, 2020. Since that date, CMS approved over 21,000 applications for loan payments to Part A providers under the Accelerated Payment Program and 24,000 applications for loan payments to Part B suppliers under the Advance Payment Program. Now, CMS is suspending the Advance Payment Program effective immediately and reevaluating all pending and new applications for Accelerated Payments in light of direct payments still available to Part A providers through the provider relief fund created by the CARES Act.

CMS Announces Additional Waivers and Flexibilities for Healthcare Provider Response to COVID-19

On April 30, 2020, the Centers for Medicare & Medicaid Services (CMS) announced that it had issued additional waivers and flexibilities in response to requests from healthcare providers. Among other updates, Medicare will no longer require an order from a treating physician or other practitioner for coverage of a Medicare beneficiary’s COVID-19 (and related) diagnostic tests. This means pharmacists can administer the tests without a practitioner order (which services can be billed directly by a pharmacist enrolled in Medicare or a laboratory, or by a coordinating provider or practitioner) and make it easier for beneficiaries to be tested at parking lot testing sites operated by pharmacies. Medicare and Medicaid will also cover certain serology (antibody) tests used to determine whether a person may have developed an immune response to COVID-19