OHS Streamlines Application Process for CON Waivers to Respond to COVID-19

On March 20, the Connecticut Office of Health Strategy (OHS) issued new guidance (Guidance) on the process for requesting a certificate of need (CON) waiver for projects related to the COVID-19 response. See our analysis of the initial OHS guidance on CON waivers here. Continue Reading

New York Further Expands Facility Capacity and Practitioner Capacity in New Executive Order

On March 23, 2020, New York Governor Andrew Cuomo issued an executive order (Executive Order) related to the COVID-19 public health emergency to ease regulatory requirements and expand the resources available to address the emergency.

Significant provisions of the Executive Order are as follows:

Provisions to Expand Facility Capacity

  • Orders the Commissioner of Health to direct all general hospitals, ambulatory surgery centers, office-based surgery practices and diagnostic and treatment centers to increase the number of beds available to patients, including by canceling all elective surgeries and procedures, as determined by the Commissioner. General hospitals in New York must submit to the New York Department of Health (DOH) their plans to increase available beds. As of this writing, the Commissioner has not yet released guidance defining elective surgeries or procedures or the schedule for general hospitals to submit their plans to DOH. The Executive Order gives the Commissioner the authority to suspend or revoke the operating certificate of any general hospital that is unable to meet the requirements of these directives.
  • Permits hospice residences to designate any number of beds as inpatient beds.
  • Permits the Commissioner to designate a health care facility as a trauma center or to extent a facility’s designation.
  • Waives laws related to hospital construction, minimum facility requirements, and governance to the extent necessary to provide for capacity expansion. Specifically, the Executive Order waives Section 2803 of the Public Health Law, and Parts 400, 401, 405, 409, 710, 711 and 712 of Title 10 of the NYCRR. Of note, the earlier Executive Order 202.5 had provided similar waivers but required prior approval from the Commissioner of Health or the Commissioner of the Office for Persons with Developmental Disabilities (see our summary of Executive Order 202.5 here).

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Rhode Island Issues Emergency Regulations on Off-Label Prescribing for COVID-19, and Guidance on Telehealth and Reciprocal Licensure

Rhode Island has issued important updates for health care providers related to COVID-19, available at https://health.ri.gov/diseases/ncov2019/for/providers/.  Providers should be aware of these updates including, among others, the following described below. Continue Reading

OIG Warns of COVID-19 Fraud Schemes

The US Department of Health and Human Services Office of Inspector General (OIG) released a fraud alert warning Medicare beneficiaries of potentially fraudulent schemes that take advantage of the fears surrounding the COVID-19 public health emergency. The OIG warns that fraudsters are targeting Medicare beneficiaries through telemarketing, social media and even in-person, door-to-door contact. According to the OIG, the fraudulent schemes often involve an offer of a COVID-19 test in exchange for an individual providing personal information. Continue Reading

Massachusetts COVID-19 Updates and Guidance Issued

Massachusetts regulators issued several updates regarding Hospital Bed License Expansion, Personal Protective Equipment, and Ambulance Transport to Designated Alternate Sites that receive suspected COVID-19 patients. Continue Reading

Connecticut Issues Order Temporarily Recognizing Reciprocal Health Care Practitioner Licenses

In alignment with both New York and Massachusetts, earlier today Connecticut’s Commissioner of the Department of Public Health issued an order (Order) permitting physicians, nurses, respiratory care practitioners, emergency medical services personnel and other health care practitioners who are licensed in another state to provide temporary assistance in Connecticut for a period of 60 days. The Order is subject to the following conditions:

  • No practitioner may provide services beyond the scope of practice permitted under Connecticut law relating to the applicable profession;
  • Each practitioner must maintain malpractice and other insurance as would be required if the individual was licensed in Connecticut; and
  • Any entity that engages an out-of-state practitioner to provide services must verify the practitioner’s credentials, insurance coverage and that the practitioner is in good standing in the state he or she holds a license.

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COVID-19: HHS Issues FAQs on HIPAA and Telehealth to Help Providers Maintain Access to Care During the Pandemic

On March 20, the U.S. Department of Health and Human Services (HHS) issued additional guidance in the form of Frequently Asked Questions (FAQs) on HIPAA and telehealth services to help providers furnish care during the COVID-19 pandemic.

The FAQs follow and provide further information on the Notification of Enforcement Discretion issued by HHS on March 17 (Notification), in which HHS indicated that it would not penalize providers for using popular video chat applications, such as FaceTime and Skype, in good faith to provide telehealth services amid the COVID-19 pandemic.  HHS has emphasized, however, that the Notification does not allow the use of public-facing communications products, such as Facebook live or other livestreaming applications. Continue Reading

Connecticut Governor Lamont Expands Access to Telehealth Services In Response to COVID-19 Pandemic

On March 19, Connecticut Governor Ned Lamont issued Executive Order No. 7G, which is intended to expand access to telehealth services for Connecticut residents amidst the COVID-19 pandemic.  Notably for health care providers, the Order waives or modifies provisions of Conn. Gen. Stat. § 19a-906 and any associated regulations, rules and policies regarding the delivery of telehealth services as follows:

  • Allows telehealth providers enrolled in Medicaid or in-network in fully-insured commercial plans to provide covered telehealth services via audio-only telephone to established patients (i.e., those with an existing provider-patient relationship).
    • Health care providers interested in taking advantage of audio-only technologies to furnish telehealth services should be mindful that CMS continues to require the use of audio and video technology to furnish telehealth services to Medicare patients, but CMS does allow the use of audio-only communications via telephone to perform limited “virtual check-ins” with patients.
    • See here for our review of CMS guidance issued on telehealth in connection with COVID-19.
  • Suspends the licensure/certification/registration requirements in § 19a-906(a)(12) – which establishes who may qualify as a “telehealth provider” in Connecticut – for telehealth providers enrolled in Medicaid or in-network in fully-insured commercial plans, in accordance with orders issued by the Commissioner of the Department of Public Health (DPH).
    • As of March 20, DPH had not yet issued an order implementing this aspect of the Executive Order, but in Governor Lamont’s announcement of the Executive Order he indicated that it is intended to allow “patients to access out-of-state telehealth providers.”
  • Modifies the requirement within § 19a-906(f) that the provision of telehealth services and health records maintained and disclosed as part of a telehealth interaction comply with HIPAA, to permit telehealth providers enrolled in Medicaid or in-network in fully-insured commercial plans to “utilize additional information and communication technologies consistent and in accordance with any direction, modification or revision of requirements for HIPAA compliance” of the U.S. Department of Health and Human Services (HHS) related to telehealth during the COVID-19 pandemic.
    • This aspect of the Executive Order is likely intended to refer to the Notification of enforcement discretion (and future guidance) issued by HHS on March 17, which notified covered health care providers that they “may use popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, to provide telehealth without risk that [the Office for Civil Rights] might seek to impose a penalty for noncompliance with the HIPAA Rules related to the good faith provision of telehealth during the COVID-19 nationwide public health emergency.”
    • The HHS Notification encourages providers to notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications.
    • It should be noted that the HHS Notification advises that Facebook Live, Twitch, TikTok, and similar video communication applications are public facing, and should not be used in the provision of telehealth by covered health care providers.
  • Requires that, prior to engaging in telehealth services, providers who furnish telehealth services to a patient not covered by Medicaid or a fully-insured commercial plan determine if the patient has coverage for the telehealth services by a health plan.  Providers who receive payment under such health plans cannot balance bill the patient for additional charges, and providers who furnish telehealth services to patients who they determine do not have any insurance coverage for the telehealth services (either under a health plan or because the patient is uninsured) must accept the amount Medicare reimburses for the service as payment in full .  If a provider determines that a patient is uninsured or otherwise unable to pay for the services, the provider is obligated to offer financial assistance to the extent required under state or federal law.
  • Waives any regulations that require that telehealth services be provided from a provider’s licensed facility.

The Executive Order follows on guidance from the state Department of Social Services issued earlier this week that allows the provision of telehealth services via audio-only technologies in certain circumstances (see here for our previous analysis of DSS guidance).  Health care organizations would be well-advised to keep in mind the potential tension between the state-level waivers and CMS requirements under its waiver that are applicable to Medicare patients when implementing new telehealth care delivery models.

Massachusetts Issues New COVID-19 Guidance and Updates

Massachusetts government agencies have issued recent guidance and updates concerning the COVID-19 emergency. A summary is provided below.

Allowing Health Care Personnel with Potential Exposure to COVID-19 to Continue to Work

On March 19, the Massachusetts Department of Public Health issued the following Guidance for Health Care Personnel with Potential Exposure to Patients with COVID-19.

Healthcare facilities must take the following procedures in order that health care personnel (HCP) who have had exposure to COVID-19, but are asymptomatic, may continue to work. Under the guidance, exposed HCP may continue working if:

  • All options to improve staffing detailed in your facility or organization’s emergency management plan have been exhausted;
  • The occupational health services program has been consulted;
  • The health care facility has stopped all non-essential, elective invasive procedures, if applicable; and
  • The health care facility has postponed any non-essential outpatient appointments, if applicable.

If those conditions are met and the facility allows such HCP to continue to work, the facility must:

  • Ensure HCP report temperature and absence of symptoms prior to starting work each day;
  • Ensure HCP wear a facemask for the entire time that they are at work for the 14 days after the exposure event;
  • Direct that if HCP develop even mild symptoms consistent with COVID-19, they must cease patient care activities and notify their supervisor or occupational health services prior to leaving work;
  • Prohibit HCP with even mild symptoms consistent with COVID-19 from working while they are symptomatic and, in accordance with DPH guidelines, test for COVID-19. HCP must remain out of work while awaiting COVID-19 test results;
  • Using clinical judgment avoid having HCP care for high risk patients, including immunocompromised patients, for the 14 days after the exposure event; and
  • Consider having HCP work shorter shifts (i.e., 8 hours) as there is early evidence that shorter shifts may be protective.

Commercial Coverage of Telehealth Services

The Division of Insurance issued Telehealth Bulletin: Emergency Measures to Address and Stop the Spread of COVID-19.  This supplements, and in some respects supersedes, the March 6 bulletin to commercial payors regarding COVID-19 coverage responsibilities. This Bulletin provides more guidance for commercial payors, providers and patients regarding telehealth services, and follows on the Governor’s earlier order that commercial payors must cover telehealth to no less extent than MassHealth. See our previous discussion of that order here.

Update to MassHealth Hospital-Determined Presumptive Eligibility (HPE) Application Process

MassHealth issued Eligibility Operations Memo 20-06: Updates to the Hospital-Determined Presumptive Eligibility (HPE) Application Process, which supersedes Eligibility Operations Memo 14-01 published in June 2014, and summarizes MassHealth’s Hospital-Determined Presumptive Eligibility (HPE) process, now addressing patients with diagnosis or a presumptive diagnosis of COVID-19.

Other Support for Health Care Providers

In a press conference on March 20, Governor Baker announced further support for health care providers through an injection of funds to MassHealth for critical, acute care and safety-net health care providers, as well as for certain health care providers required to help ensure that MassHealth members receiving care in the community or nursing facilities do not need to go to the hospital. Also announced was an initiative by MassBio to collect donations of resources and supplies for healthcare institutions.

Massachusetts DPH Commissioner Issues New COVID-19 Orders

Massachusetts Department of Public Health Commissioner Monica Bharel issued three new orders concerning the COVID-19 emergency.  A summary of each order is provided below. Continue Reading