COVID-19: Legal updates for hospitals and health care facilities
Hospitals, surgery centers and more
The ongoing coronavirus/COVID-19 pandemic is causing incredible new challenges and stresses to all Americans (and especially health care providers) every day. Simultaneously, governments at every level continue to issue new statutory and regulatory responses, offering providers new opportunities to confront and overcome these challenges.
Below is a topical guide for hospitals and health care facilities on the front lines of caring for those with COVID-19. For questions regarding how these changes may affect you, please contact the health care attorneys at Hagwood & Tipton.
On April 10, 2020, Mississippi Governor Tate Reeves issued Executive Order 1471, which took effect immediately and until May 15, 2020.
The order grants health care professionals and health care facilities immunity from suit for civil liability for any injury or death alleged to have been sustained by their acts or omissions while providing health care services including, but not limited to screening, assessing, diagnosing or treating patients for COVID-19, or otherwise acting in support of the state’s COVID-19 response during the pandemic.
This will not apply to acts or omissions that constitute a crime, fraud, malice, reckless disregard, willful misconduct or would otherwise constitute a false claim.
The order also authorizes the State Department of Health, Board of Nursing, and Board of Medical Licensure to make, amend or rescind any rules or orders it deems necessary for health care professionals to provide health care services in health care facilities in response to the COVID-19 outbreak.
On March 13, 2020, the Centers for Medicare and Medicaid Services announced that during the ongoing national emergency, it would:
- Allow acute care hospitals with distinct part inpatient psychiatric units to relocate patients from the psychiatric unit to the acute care unit in the case of emergency while continuing to bill for inpatient psychiatric services
- Allow acute care hospitals with distinct part inpatient rehab units to relocate patients from the rehab unit to the acute care unit in the case of emergency while continuing to bill for inpatient rehab services
Medicare coverage for skilled nursing facilities
On March 13, 2020, the Centers for Medicare and Medicaid Services announced that during the ongoing national emergency, it would waive the requirement for a three-day prior hospitalization for coverage in a skilled nursing facility stay; and, for certain beneficiaries who recently exhausted their SNF benefits, authorize renewed SNF coverage without first having to start a new benefit period.
As part of complying with these orders, providers likely need to update existing policies and/or create new policies and notifications to staff, residents, and friends and family members regarding visitation.
- Tennessee – On March 22, 2020, Tennessee Governor Bill Lee issued an executive order on social distancing, which included halting visits to nursing homes, hospitals and long-term care facilities.
- Mississippi – On March 24, 2020, Mississippi Governor Tate Reeves issued an executive order on social distancing, which included halting visits to nursing homes, hospitals and long-term care facilities.
CMS regulatory waivers and rule changes
Delivering care at other locations
On March 30, 2020, President Trump directed CMS to make sweeping regulatory changes, including temporary regulatory waivers and new rules “to equip the American health care system with maximum flexibility” to respond to the ongoing pandemic.
These temporary changes apply immediately across the entire U.S. health care system for the duration of the emergency declaration, allowing hospitals and health systems to deliver services at other locations to make room for COVID-19 patients in need of acute care in their main facility. The announced temporary actions include but are not limited to:
- Hospitals Without Walls, which can
increase hospitals’ patient capacity by:
- Moving non-COVID patients out to contracted ambulatory surgery centers and/or state-approved non-hospital buildings
- Allowing COVID testing at patients’ homes or other community-based settings or hospital-affiliated drive-through/off-campus sites
- Allowing hospitals to bill for services performed outside their four walls
- Expanding the health care workforce by allowing temporary employment of local private practice clinicians, allowing hospitals to provide additional benefits to medical staff and other waivers
- Temporarily eliminating certain paperwork and audit and reporting requirements
Advanced/accelerated Medicare payments
On March 28, 2020, the Centers for Medicare and Medicaid Services detailed how providers can access accelerated or advanced Medicare payments under the new stimulus package.
To qualify for this acceleration/advance, providers and suppliers must:
- Have billed Medicare for claims within 180 days immediately prior to the date of signature on their request form
- Not be in bankruptcy
- Not be under active medical review or program integrity investigation
- Not have any outstanding delinquent Medicare overpayments
Medicare will begin accepting and processing these requests immediately, and CMS anticipates payments to be issued within seven days of a provider’s request.
Federal stimulus for health care providers
On March 27, 2020, the U.S. House of Representatives approved a stimulus package, and President Trump signed the bipartisan H.R. 748 – the Coronavirus Aid, Relief, and Economic Security (CARES) Act – into law. The act includes major provisions relevant to health care providers, including:
- $377 billion in small business loans
- $150 billion for hospitals to invest in equipment and infrastructure, which includes reauthorizing grant programs that promote the use of telehealth technologies, including the expansion of telehealth access, insurance coverage, rural telehealth access, Medicare reimbursement for services and others.
- CMS – On March 17, 2020, the Centers for Medicare and Medicaid Services issued notifications of HIPAA enforcement discretion for telehealth services.
- HHS – On March 20, 2020, the Health and Human Services Office for Civil Rights issued guidance for telehealth and HIPAA during the COVID-19 national emergency via a press release and FAQs document.
Assistance with these or other health care matters