Legal Alert

Health Care and the CARES Act

March 27, 2020

On March 27, 2020, Congress passed the CARES Act (the Act), an approximately $2 trillion bill drafted in response to the COVID-19 crisis, with the goal of providing much needed relief for the United States economy. A significant portion of the bill relates to the health care workforce, providing for provisions related to the reauthorization of health professions workforce programs, health workforce coordination, education and training relating to geriatrics, and nursing workforce development. In addition, there are other protections for health care workers providing care during the COVID-19 crisis. These provisions are briefly summarized below:

  • Volunteer Health Professionals Protection from Liability. The law provides immunity from professional liability claims for health care professionals who volunteer their services, within the scope of their license, in response to the emergency. The law preempts any inconsistent state law, unless it provides greater protection to the volunteer.
  • Telehealth. There are various provisions in the Act to promote the use of telehealth for COVID-19 treatment and to provide continuous care while avoiding exposure to others. They include:
    • grant programs
    • clarifying the Internal Revenue Code to allow the payment by a High-Deductible Health Plan of telehealth services prior to patient’s meeting their deductible under the HDHP
    • eliminating the 3 year patient relationship requirement for telemedicine coverage under Medicare established in the earlier COVID-19 law (Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020)
    • during the COVID-19 emergency period, the law authorizes health care professionals to conduct certain Medicare services and recertifications by telehealth encounters rather than by face-to-face sessions, including
      • hospice physicians and nurse practitioners for hospice care;
      • home dialysis patients;
      • home health services, and
      • FQHCs and Rural Health Clinics serving as a distant site for telehealth services and addresses payment rate issues relating thereto
  • Increases in Medicare Funding and Delays in Medicare Reductions
    • The 2% Medicare sequester reduction in payment is lifted for the period May 1 through December 31, 2020 and correspondingly extended by one year beyond the current law period.
    • Medicare payments to inpatient hospitals treating COVID-19 patients will be increased by 20%, to be available through the duration of the COVID-19 emergency period.
    • Scheduled reductions to Medicare Payments for durable medical equipment will be postponed through the length of the COVID-19 emergency period.
    • Scheduled reductions in Medicare payments for clinical diagnostic laboratory tests furnished to beneficiaries will be postponed in 2021 and delay the upcoming private payer data reporting period for laboratories.
    • The Medicare hospital accelerated payment program will be expanded to permit qualified facilities to request up to a six month advanced lump sum or periodic payment based on their net reimbursement represented by unbilled discharges or unpaid bills. Payback of this amount will not be required to begin for four months, and borrowers will have at least 12 months to complete repayment with no interest. Critical Access Hospitals will be entitled to up to 125 percent of their prior period payments, while most other hospital types could elect to receive up to 100 percent.
  • State Receipt of Enhanced Medicaid FMAP Payments. The Act amends the Families First Coronavirus Response Act of 2020 to ensure that states are able to receive the Medicaid 6.2 percent Federal medical assistance percentage increase contained therein.
  • Elimination of Medicare Part B Cost-Sharing for the COVID-19 Vaccine. The Act enables Medicare Part B beneficiaries to receive a COVID-19 vaccine in Medicare Part B with no cost-sharing.
  • 3-Month Fills and Refills of Covered Medicare Part Drugs.  Medicare Part D plans will be required to provide up to a 90-day supply of a prescription medication if requested by a beneficiary during the COVID-19 emergency period.
  • Coverage of COVID-19 Tests. The Act contains provisions clarifying that, pursuant to the Families First Coronavirus Response Act of 2020, uninsured individuals may receive a COVID-19 test and related service with no cost-sharing in any state Medicaid program that elects to offer an applicable enrollment option, and that Medicare Part B beneficiaries can receive all tests for COVID-19 in Medicare Part B with no-cost sharing.
  • Home and Community-based Support Services during Hospital Stays. The Act will permit state Medicaid programs to pay for direct support professionals as well as caregivers trained to help with activities of daily living to assist disabled hospital patients to reduce length of stay and utilization of hospital beds.
  • Increasing Medicare Access to Post-Acute Care
  • Acute care hospitals will be given flexibility throughout the COVID-19 emergency period to transfer patients out of their facilities to alternative care settings to preserve resources needed for their treatment of COVID-19 patients. The Inpatient Rehabilitation Facility three-hour rule will be waived, and Long Term Care hospitals will be allowed to maintain designations, regardless of whether more than 50 percent of their cases are less intensive. The Long Term Care Hospital site-neutral payment methodology also will be temporarily paused.
  • Extensions of Funding and Payments. The Act provides for the extension of certain funding and payments under Medicare, Medicaid, and other health care programs that were already in place:
    • Medicare Physician Work Geographic Index Floor payments will be extended in areas where labor cost is calculated to be lower than the national average until December 1, 2020.
    • Health and Human Services will be provided extended Medicare funding to contract with a consensus-based entity to provide services in connection with quality measurement and performance improvement until November 30, 2020.
    • Medicare funding for beneficiary outreach and counseling in connection with low-income programs will be extended until November 30, 2020.
    • The Medicaid Money Follows the Person demonstration will be extended until November 30, 2020.
    • The Medicaid Spousal Impoverishment Protections program will be extended through November 30, 2020.
    • Scheduled Medicaid disproportionate share hospital (DSH) reductions will be delayed until November 30, 2020.
    • The Medicaid Community Mental Health Services demonstration will be extended until November 30, 2020 and will additionally be expanded to include two additional states.
    • The Sexual Risk Avoidance Education program will be extended at current funding levels until November 30, 2020.
    • The Personal Responsibility Education Program will be extended until November 30, 2020 at current funding levels.
    • The Health Professions Opportunity Grants program will be extended through November 30, 2020 at current funding levels.
    • The Temporary Assistance for Needy Families program, as well as its related programs, are extended until November 30, 2020.
    • Mandatory funding for community health centers, the National Health Service Corps, and the Teaching Health Center Graduate Medical Education Program will be extended at current levels until November 30, 2020.
    • Mandatory funding for the Special Diabetes Program for Type I Diabetes and the Special Diabetes Program for Indians will be extended at current levels until November 30, 2020.
  • Reauthorization of Health Professions Workforce Programs
    • The Act reauthorizes appropriations to provide grants to designated health professions schools and other public and nonprofit health or educational entities, for the purpose of supporting programs in health professions education for under-represented minority individuals, to provide scholarships for qualified disadvantaged students, to provide funds for loan repayment and fellowships for qualified faculty positions, and to provide funds for grants and agreements with schools of certain health professions that offer graduate programs in behavioral and mental health, physician assistance training programs, and other or private nonprofit health or educational entities to assist in facilitating the education of students from disadvantaged backgrounds in a health profession.
    • The Act reauthorizes appropriations and updates regulations for grants made to training and enhancement programs related to primary care training programs, including by setting priorities for making awards that give priority to qualified applicants training residents in rural areas, including for Tribes or Tribal Organizations in such areas.
    • The Act further reauthorizes appropriations for awards related to infrastructure development and maintenance and enhancements of entities providing health care workforce education programs and area health education center programs, for grants related to public health training centers and traineeships, for pediatric specialty loan repayment programs, and for programs evaluating health professions workforce issues and policies, including the National Center for Health Care Workforce Analysis.
  • Health Workforce Coordination. The Act directs the Secretary of Health and Human Services to develop a comprehensive and coordinated plan with respect to the healthcare workforce development programs of the Department of Health and Human Services, including education and training programs. These programs must include performance measures to determine the extent to which these programs are strengthening the national health care system; and identify any gaps existing between the outcomes of the programs and projected health care workforce needs.
  • Education and Training Relating to Geriatrics. The Act reauthorizes and updates the section of the Public Health Service Act related to education and training relating to geriatrics. It provides for grants, contracts, or agreements to health education programs for the establishment or operation of Geriatrics Workforce Enhancement Programs.
  • Nursing Workforce Development. The Act reauthorizes and revises Title VIII of the Public Health Service Act, which covers programs supporting nurse workforce training. It further updates reporting requirements of the Secretary of Health and Human Services, to incorporate information to the extent to which Title VIII programs meet the goals and performance measures for such activities, and the extent to which Health and Human Services works with other federal departments on similar programs. The Act further allows Nurse Corps loan repayment beneficiaries to work at private institutions, with restrictions.

Copyright © 2020 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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