Tag Archives: healthcare

Temporary Blanket Waivers for Certain Stark Law Penalties

Among the many federal agency actions taken in response to the health and economic consequences of the COVID-19 outbreak is an interesting and much unpublicized one related to the Stark Law, a healthcare fraud and abuse law that prohibits physicians from referring patients for certain designated health services paid for by Medicare to any entity in which they have a “financial relationship.”

On March 30, 2020, the Centers for Medicare and Medicaid Services (“CMS”) unexpectedly announced temporary nationwide Section 1135 blanket waivers (retroactive to March 1, 2020) for certain Stark Law penalties of the Social Security Act. By relaxing some restrictions on payments and referrals, hospitals and healthcare providers should find it easier to collaborate during this time when the healthcare system is confronting an unprecedented pandemic.

The blanket waivers are narrowly tailored and require entities to act in good faith to provide care in response to the United States national emergency declared due to the COVID-19 outbreak. The blanket waivers do not excuse any otherwise illegal  fraud or abuse and those using the blanket waivers must be satisfying one of the six explicitly defined COVID-19 purposes. A further requirement is that the otherwise illegal relationship must fall into the one of the eighteen permitted relationships. Because of these complex requirements the potential use of any waiver will require fact-intensive analysis of each relationships’ circumstances and conditions. Continue reading

Required Action for Healthcare Providers Receiving Relief

Healthcare providers should note that HHS has deposited funds in many of your bank accounts.  The funds are from two programs, the CMS Accelerated and Advance Program and the CARES Act Provider Relief Fund.  The CMS Accelerated and Advance Program is a loan against future payments from government healthcare programs and must be repaid (likely from reductions in future payments).  The CARES Act Provider Relief Fund is a grant program, but in order to retain the money you have received providers must sign and deliver an attestation within 30 days following receipt of the funds.  The clock has already started to run.  There has been much confusion about the CARES Act payment because the certification required that the provider be involved in the treatment or diagnosis of potential COVID-19 patients.  CMS has clarified, however, that any patient is a potential COVID-19 patient.  The newly published HHS Cares Act data page where you can access the required attestation and instructions and learn more about this important update.

The Expansion in Telehealth through the CARES Act

The recently enacted Coronavirus Aid, Relief, and Economic Security (“CARES”) Act strongly supports the use of telehealth, removes barriers to its use, and undeniably acknowledges that access to telehealth is fundamental in defeating the COVID-19 pandemic. Telehealth is a powerful technology that enables patients geographically separated from healthcare providers to more easily access health care and speed up diagnosis and treatment. Telehealth is especially valuable in light of the highly contagious nature of COVID-19 because telehealth limits the risk of person-to-person exposure, thus thwarting the spread of the viral disease. The CARES Act will help America’s healthcare providers to migrate their patients to virtual care platforms which reduce exposure to COVID-19. The Act contains provisions which will expand the use of telehealth services both during the current COVID-19 pandemic (“emergency period”) and beyond with respect to Medicare beneficiaries, veterans, rural care, hospice care and home health services, and individuals with Health Savings Accounts (“HSA”).

CARES Act telehealth provisions build on the initial Medicare Telehealth Waiver authorized by Congress earlier in March 2020 by removing the requirement that a provider must have seen the patient within the last three years. This allows Medicare beneficiaries to more easily access care when and where they need it during the COVID-19 pandemic. This will enable beneficiaries to access telehealth, including in their home, from a broader range of providers, and will thereby reduce potential exposure to and spread of COVID-19. The CARES Act requires the U.S. Department of Health & Human Services to issue clarifying guidance encouraging the use of telecommunications systems, including remote patient monitoring, to furnish home health services consistent with the beneficiary care plan during the emergency period. During the emergency period, qualified hospice providers can use telehealth technologies to fulfill Medicare’s face-to-face recertification requirement.

Veterans Administration (“VA”) facilities will receive $14.4 billion in funding for the provision of healthcare services through telehealth as well as for the purchase of medical equipment and supplies, testing kits, and personal protective equipment. Included in that funding is $2.15 billion, which is dedicated to the VA’s information technology to support increased telework, telehealth, and call center capabilities to deliver healthcare services directly related to coronavirus and mitigate the risk of virus transmission including the purchasing of devices, as well as enhanced system bandwidth and support. Also authorized under the CARES Act is the VA’s expansion of mental health services delivered via telehealth and authorization for VA to enter into short-term agreements with telecommunication companies to provide veterans with temporary broadband services.

The CARES Act permits individuals with HSAs that are insured through high-deductible health plans to use telehealth services without the need to first reach a deductible. This provision should allow patients who may have the COVID-19 virus to obtain medical consultation from home and thus protect other patients and caregivers from potential exposure. However, this is a temporary provision that will expire on December 21, 2021.

The Health Resources and Services Administration will receive $180 million to assist Federally Qualified Health Centers (“FQHC”) and Rural Health Clinics (“RHC”) in providing telehealth services. During the emergency period, FQHCs and RHCs may serve as “distant sites” (i.e., the location of the healthcare provider) for telehealth consultations. Thus, FQHCs and RHCs can furnish telehealth services to Medicare beneficiaries in their home, and Medicare will provide reimbursement for these such services.

Steven D. Brownlee
sbrownlee@williamsparker.com
(941) 552-2567

For additional updates related to COVID-19, please visit our resources page

Unemployment Provisions in the Coronavirus Aid, Relief, and Economic Security Act

As businesses in Florida make decisions on how to move forward during the COVID-19 public health emergency, many businesses are weighing the effects of a layoff or furlough on their employees’ ability to secure unemployment benefits. The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act—which was signed into law the afternoon of March 27, 2020—includes provisions that address these issues. These provisions are referred to as the Relief for Workers Affected by Coronavirus Act.

Before addressing how the CARES Act may temporarily affect unemployment, it is important to understand what steps the State of Florida has already taken. At this stage, Florida has temporary made individuals who have a COVID-19-related unemployment situation eligible for reemployment assistance (the name Florida gives to unemployment benefits). Specifically, under current Florida guidance, the following persons are currently eligible for COVID-19 unemployment benefits:

  • People ordered to quarantine by a medical professional
  • Those laid off or sent home without pay for an extended period by their employer due to COVID-19
  • Those caring for an immediate family member with the virus.

The CARES Act will expand these benefits—presuming, of course, that Florida enters into an agreement with the federal government. Such an agreement is required for each provision in the CARES Act related to unemployment.

If Florida agrees and participates in the expended benefits, below is general summary of what will be available to those whose work has been negatively impacted by the coronavirus:

Federal Pandemic Unemployment Compensation: provides an additional $600 per week in unemployment benefits on top of the maximum benefits an individual may receive (state provided benefits + Pandemic Unemployment Compensation = Total Benefits). These benefits are available to those whose lack of work is tied to COVID-19 up through July 31, 2020.

Pandemic Unemployment Assistance: provides for financial assistance for gig workers, the self employed and contract workers typically not eligible for benefits.

  • Applies to those not eligible for regular benefits, including those that have already exhausted rights to regular or extended benefits, provided that they meet certain criteria – i.e. a need related to COVID-19.
  • It appears that furloughed workers will be eligible for benefits, even while staying on company benefit plans.
  • Does not include those that have the ability to telework with pay or are receiving paid leave benefits.
    • Available for loss of pay/income between January 27, 2020 and December 31, 2020.
    • No “waiting period” for benefits.
    • Benefits shall not exceed 39 weeks total benefits under this or any other unemployment provision, unless extended benefits are provided.

Pandemic Emergency Unemployment Compensation: provides an additional 13 weeks on top of states’ standard limits for employees meeting specific criteria (lack of work due to COVID-19).

  • Florida’s current standard limit for benefits is 12 weeks.
  • Thus, it appears that a total of 25 weeks of eligibility—unless extended benefits apply in which case this benefit should be used before the extended benefit.

Temporary Funding of State One Week Waiting Period: provides that if States waive the requirement of a one week waiting period for benefits, the States will be reimbursement for unemployment compensation payments made for that week.

Temporary Financing of Short-Term Compensation (“STC”) Payments: provides that from the date of enactment until December 21, 2020, States such as Florida will be reimbursed for payments made pursuant to an STC program, if the need for such payments arises from a reduction in hours due to COVID-19 and the works is not employed on a seasonal, temporary, or intermittent basis.

  • STC allows employers to reduce hours of work for employees rather than laying-off some employees while others continue to work full time.
  • Those employees experiencing a reduction in hours are allowed to collect a percentage of their unemployment compensation benefits to replace a portion of their lost wages.
  • Additional information can be found at this website the State of Florida has established:

Williams Parker has launched a multidisciplinary task force of lawyers across the firm to advise on issues arising from COVID-19 and to provide guidance for affected clients. This team is closely monitoring legal developments and guidance from federal, state, and local government and public health officials. For the latest updates, please visit our website.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

This post was originally published on Williams Parker’s Labor & Employment Blog.

Healthcare Providers: Florida Legislature Expands Scope of Practice for Pharmacists and APRNs

On March 11, 2020, just two days before the end of the 2020 Florida Legislative Regular Session, the Legislature passed two bills which have special significance given the escalation of fear related to COVID-19 or Coronavirus disease. House Bill (“HB”) 389 expands the practice of pharmacists by allowing them to test and treat patients for certain chronic medical conditions and minor, uncomplicated acute medical conditions. HB 609 authorizes qualified advanced practice registered nurses (“APRNs”) to independently operate primary care practices without physician supervision.

Both bills were signed within hours of passage by Governor DeSantis, but the new laws will not take effect until July 1, 2020, which could be after the Coronavirus pandemic has hopefully lessened, but too late to respond to the immediate need for additional healthcare providers in those Florida counties which have declared a state of emergency due to Coronavirus. When the new laws go into effect this summer, Florida will join seventeen other states with expanded pharmacist practice, and twenty-one states and the District of Columbia with independent practice status for APRNs.

The new laws will have profound effects upon the delivery of healthcare in Florida, including some good, some bad, as well as the predictable and unpredictable. Looking specifically at senior living facilities, APRN expanded practice should have beneficial effects including the reduction in unnecessary hospitalization of long-term care patients. The hospitalization of elderly patients often causes irreversible decline in function and exposes them to hospital-acquired illnesses and delirium. An expanded practice APRN will allow for more timely diagnosis and medical treatment when a patient has a change of condition in the long-term care facility. The APRN can intervene and treat the patient in place at the facility, instead of transferring the patient to the hospital for assessment. Thus, expanded practice APRNs will play a valuable role in caring for the long-term care patient and reducing costly and unnecessary hospital admissions.

Florida’s new law requires that APRNs have at least 3,000 hours of experience and completion of graduate courses in pharmacology and differential diagnosis to be qualified to autonomously provide services in family medicine, general pediatrics, and/or general internal medicine. Likewise, the new law requires pharmacists to enter into collaborative agreements with physicians before the pharmacist is qualified to treat chronic conditions including asthma, arthritis, and obesity and also to test for and treat patients for minor, uncomplicated acute conditions including influenza, strep throat, lice, ringworm, and athlete’s foot. Accordingly, only subsets of Florida’s 20,175 licensed APRNs and 20,510 licensed pharmacists will benefit from the new law. It is likely that many of those APRNs and pharmacists that are otherwise qualified to expand their practices will decide not to do so because of factors including professional liability costs.

Proponents of the new legislation believe it will improve the timeliness and access to medical care by giving Floridians more options for treatment. For example, Floridians living in rural areas, where they are often underserved, will now have improved access to healthcare in their own communities. Proponents make good points because some experts estimate that by 2030 Florida will have a shortage of 4,671 primary care providers (“PCPs”) unless something is done. Those opposed argue that the new laws authorize pharmacists, which are generally not formally trained in medical diagnoses, to practice medicine. The opposition is also concerned that there will be a dangerous expansion in APRNs’ scope of practice where they will be challenged to properly diagnose and treat life-threatening conditions.

The Florida Medical Association, which represents physicians, opposes the new laws because they allow individuals without sufficient training to practice medicine. In contrast to that position many individual physicians are optimistic about expanded practice because they believe it will allow patients to obtain medical care from more and different sources which in turn will allow physicians to concentrate on the more serious and chronic medical conditions.

Dr. Steven D. Brownlee is a health law attorney with Williams Parker. He focuses on assisting healthcare and senior living providers with their operational and regulatory matters, including professional licensing, compliance planning, Medicare/Medicaid issues and appeals, DEA issues, and provider contracting. Prior to practicing law, Steven practiced medicine and medical management consulting. He can be reached at sbrownlee@williamsparker.com or (941) 552-2567.

Final Section 199A Regulations Provide Little Guidance for Skilled Nursing and Assisted Living Facilities

The final Section 199A regulations, which were promulgated on January 18, 2019, make several clarifications to the rules regarding specified service trades or businesses (“SSTB”). Over certain taxable income thresholds, SSTBs are not eligible for the Section 199A deduction. The performance of services in the field of health is an SSTB and is defined in Section 1.199A-5(b)(2) of the final regulations as “the provision of medical services by individuals, such as physicians, pharmacists, nurses, dentists, veterinarians, physical therapists, psychologists, another similar healthcare professionals performing services in their capacity as such.” The operation of health clubs or health spas, payment processing, or the research, testing, manufacture and sales of pharmaceuticals or medical devices are not within the field of health.

Many commentators to the proposed regulations, including Williams Parker, noted that many of the services provided by skilled nursing facilities and assisted living facilities are unrelated to health care, including housing, meals, laundry, security, and socialization activities. Unfortunately, Treasury declined to issue specific guidance as to whether the owners of skilled nursing, assisted living, and similar facilities are performing services within the field of health, and noted that the issue “requires a facts and circumstances inquiry that is beyond the scope of these final regulations.”

However, the final regulations added an example in Section 1.199A-5(b)(3)(ii) of a senior housing facility that is not engaged in the field of health. In the example, the senior housing facility provides its residents with standard domestic services (including housing management and maintenance, meals, laundry, and entertainment), but all medical and health services (including skilled nursing, physical and occupational therapy, speech-language pathology, medications, medical supplies and equipment, and ambulance transportation) are provided through separate professional healthcare organizations. All of the health and medical services are billed directly by the healthcare providers to the senior citizens even though the services are provided at the facility. Unfortunately, the final regulations do not address a scenario where the facility invoices the senior citizens for the health and medical services on behalf of the healthcare providers.

View the final regulations.

This post is one in a series of posts on the 199A regulations. 

Michael J. Wilson
mwilson@williamsparker.com
941-536-2043

Changes Affecting Continuing Care Communities

The Florida Legislature recently passed a bill, CS/HB 749, which implements certain changes in the operations of Continuing Care Communities (“CCCs”) in Florida, effective October 1, 2015.  Some of these changes include:

·     CCCs must be accredited by the Office of Insurance Regulation (“OIR”) without stipulations or conditions before OIR can waive statutory requirements.

·     Each CCC must establish a residents’ council created for the purpose of representing residents on matters set forth in the statutes.  Previously, the establishment of a residents’ council was optional.

·     Certain financial disclosures must be made to the president or chair of the residents’ counsel.

·     Several technical provisions are now required for resident contracts that are entered into on or after January 1, 2016.

These are just a few of the changes that are required for CCCs under the new laws.  The full text of the bill is available here.  For more information on how to make sure your CCC is ready for these new changes, please give us a call or email.

Elizabeth M. Stamoulis
Admitted only in New York
estamoulis@williamsparker.com
941-552-5546

Congress Ends the Medicare Sustainable Growth Rate Formula and Begins Replacing the Fee For Service System

President Obama signed the Medicare Access and CHIP Reauthorization Act of 2015, on Thursday April 16. The Act repeals the long complained about Sustainable Growth Rate formula for computing Medicare reimbursement rates, which had resulted in the annual “Doc Fix” legislation for the last 17 years. The Act also begins the conversion from the Fee For Service system, which has been the way Medicare claims have been paid for 50 years, to a “value-based payment” system. The value-based payment system is designed to promote efficient care by shifting the burden and benefit of efficient care to physicians. There is much debate about the possible effects and side effects of the shift in payment.

The Act, known as MACRA, raises Medicare premiums on persons with incomes over $133,500 ($267,000 per couple), starting at 50% increases up to 80%. The willingness of Congress to index premiums to income in a bipartisan bill (it passed the Senate 92-8) is seen by many as a sign that compromise is possible on both long-term Medicare sustainability and in the event the Supreme Court uses the King v. Burwell case this summer to strike down portions of the Accountable
Care Act.

To gain a broader understanding of the Sustainable Growth Rate and Value-Based Payment impact of MACRA, please see the presentation linked here.  Recent Developments In Healthcare

John L. Moore
jmoore@williamsparker.com
941-329-6620