Second COVID-19 Package Enacted, Third in Process, Regulatory Activity Continues
The COVID-19 situation is rapidly escalating, prompting daily, if not hourly updates. In addition to assisting our clients with real-time financial and operational related implications, CLA is on the frontlines of legislative and regulatory movements as well. Here’s the state of play.
On the Legislative Front
To date, two COVID-19 funding packages have been enacted with a third, a potential trillion dollar economic stimulus package, already in development. (CLA will provide details on the third package as that takes shape.) The first law, The Coronavirus Preparedness and Response Supplemental Appropriations Act, was signed by the President on March 6 and largely focused on public health funding.
Access our HI2 blog post for details on the first COVID-19 funding law.
A short two weeks later, the second funding package, The Families First Coronavirus Response Act, was enacted on March 18, 2020 as Public Law 116-127. This second law is largely focused on assisting individuals and families through this time.
The new law requires commercial and government health care programs to cover and impose no cost-sharing for COVID-19 testing. In addition, $1 billion is allocated to pay provider claims for health services for COVID-19 related items and services for uninsured individuals. To help states and territories, each will receive a boost to their respective Federal Medical Assistance Percentage (FMAP) of 6.2%. Medicaid eligibility requirements must not be made more restrictive during these times.
Access CMS FAQs and the CMS press release for additional details.
Reach out to CLA if you have questions or need assistance.
For health care providers, the law modifies the telehealth provision Congress enacted in the first funding package. The Centers for Medicare & Medicaid Services (CMS) subsequently released broad Medicare guidance on the subject. See box.
For employees and employers, there are multiple, complicated changes to current law that will provide employees with Emergency Family & Medical Leave and emergency sick leave.
Under the Emergency Family & Medical Leave Expansion Act provisions, employers with fewer than 500 employees and government employers would be required to grant employees the right to take up to 12 weeks of paid emergency leave. A qualifying event would be if an employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider is unavailable, due to the public health emergency. The first 10 days could be unpaid by the employer but the employee may elect to use vacation or other pay options but cannot be forced to use those. The subsequent weeks would be covered at no less than two-thirds the usual salary. However, the law limits per day and total compensation to no more than $200 per day and $10,000 in the aggregate. Employers with employees who are health care providers or emergency responders may elect to exclude these employees. The law takes effect 15 days after enactment, which should be April 2, 2020.
Under the Emergency Paid Sick Leave Act provisions, employers with fewer than 500 employees and government employers with more than one employee would be required to provide employees two weeks of paid sick leave under six different situations when the employee is unable to work or telework. Examples of those situations are a required quarantine, caring for an individual under quarantine or where schools or childcare have been closed. Employers with health care providers or emergency responders may elect to exclude those employees from this requirement. There is a maximum per day compensation limit and an aggregate limit based on full-time or part-time status. The law takes effect 15 days after enactment, which should be April 2, 2020.
The Department of Labor has the authority to exclude health care providers, emergency responders and small business with fewer than 50 employees and issue other regulations as necessary related to these policies.
The law also include various other policies and funding, several of which are highlighted below:
- $1 billion in 2020 for emergency grants to states for unemployment compensation activities.
- $250 million to the Administration for Community Living (within HHS) with $160 million for home-delivered nutritional services, $80 million for congregate, and $10 million for Native American.
- $500 million to Special Supplemental Nutrition Program for Women Infants and Children (WIC)
- $400 million to the Emergency Food Assistance Program (TEFAP) to assist local food banks
- $100 million for U.S. Territories for nutritional assistance
- $64 million for Indian Health Services related to COVID-19 items and services
- Several payroll taxes credits for business are available related to emergency family and medical leave and for sick leave.
- Various waivers are granted to provide flexibility for WIC, SNAP and related food programs.
On the Regulatory Front
There has been constant activity from federal agencies related to COVID-19, including waivers and new billing and coding guidance released over the past few days. In addition to the telehealth waiver flexibilities outlined above, here are key items we believe health care organizations will want to keep in mind.
With respect to billing and coding, CMS has released two new COVID-19 test Healthcare Common Procedure Coding System (HCPCS) codes available now for laboratories and providers. HCPCS code U0001 should be used for CDC approved tests and is reimbursable at $35.91. HCPCS code U0002 should be used for in-house developed tests and is reimbursable at $51.33. These codes may be billed beginning April 1 for services provided on or after February 4. See CMS instructions to Medicare Administrative Contractors for details. Also, effective March 13, 2020, the American Medical Association developed a COVID-19 code, CPT code 87635. Finally, the Centers for Disease Control and Prevention released COVID-19 ICD-10 coding guidance.
Key CMS Health Care Resource Page
In addition to the items outlined in this blog post, access all CMS guidance at their main coronavirus emergency page. Examples of additional information include recent restrictions on nursing home visitation, guidance for PACE programs, suspension of survey activities along with frequently asked question documents and more.
Upon the President’s declaration of a national emergency, CMS quickly released a series of blanket 1135 waivers. These waivers allow for flexibility from Medicare regulations, including waiving:
- Critical Access Hospital’s 25 bed limit and 96 hour length of stay requirements
- Skilled Nursing Facility’s required three-day hospital stay and authorizes certain beneficiaries who recently exhausted benefit coverage to renew that without initiating a new benefit period
- Distinct unit (of hospitals) requirements in order to address capacity needs that may arise
- Review the full list of 1135 waivers.
In addition, on March 18, CMS released recommendations for health care providers, including dental providers, to limit all elective surgeries and procedures. The recommendations including a tiering method to assess need. While these are not mandates, the goals are to limit COVID-19 spread and conserve capacity and resources.
How We Can Help
What an unprecedented time we are living in. From our legislative and regulatory insights to financial and operational acumen, we are here to know you and help you. Together we will get through this. Be safe.
Stay up-to-date via CLA’s COVID-19 resource page and Health Care Innovation & Insight blog.
Jennifer Boese is the Director of Health Care Policy at CLA. She is a highly successful public policy, legislative, advocacy and political affairs leader, including working in both the state and federal government as well as the private sector. She brings over 20 years of government relations and public policy knowledge with her to CLA. Well over half of her career has been spent dedicated to health care policy and the health care industry, affording her a deep understanding of the health care market and environment, health care organizations and health care stakeholders. Her role at CLA is to provide thought leadership, policy analysis and strategic insights to health care providers across the continuum related to the industry's ongoing transformation towards value. A key focus of that work is on market innovations and emerging payment models. Her goal is to help CLA clients navigate and thrive in an increasingly dynamic health care environment.
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