The Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), the massive stimulus legislation passed on March 27, appropriated $100 billion for the Public Health and Social Services Emergency Fund (the Relief Fund) of the Department of Health and Human Services (HHS), to be used “for necessary expenses to reimburse, through grants or other mechanisms, eligible health care providers for health care related expenses or lost revenues that are attributable to coronavirus,” other than expenses or losses that have been reimbursed from other sources (or that other sources were obligated to reimburse). As described in our earlier Client Alert CMS Gives Emergency Dollars to Medicare Providers . . . but With Strings Attached, HHS began the initial distribution of Relief Fund payments on April 10, with $30 billion divided among all providers that received Medicare payments during 2019 in proportion to their relative Medicare reimbursements during that year.
Continue Reading HHS Announces Next Distribution and Priorities for CARES Act Provider Relief Fund Payments

The Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), the massive stimulus legislation passed on March 27, appropriated $100 billion for the Public Health and Social Services Emergency Fund of the Department of Health and Human Services (the Relief Fund). According to the legislation, this $100 billion was to be used “for necessary expenses to reimburse, through grants or other mechanisms, eligible health care providers for health care related expenses or lost revenues that are attributable to coronavirus,” other than expenses or losses that have been reimbursed from other sources (or that other sources were obligated to reimburse). Under the terms of the appropriation, the secretary of the Department of Health and Human Services (HHS) was given broad discretion to determine what types of healthcare providers could receive payments from the Relief Fund, for what purposes those payments could be used, and what sorts of reports and documentation might be required of providers who received those payments. Indeed, about the only specific hard-and-fast requirement imposed on providers seeking to obtain payments from the Relief Fund was that the provider must submit to HHS “an application that includes a statement justifying the need of the provider for the payment.” This $100 billion payment was separate and distinct from other financial benefits for providers under the CARES Act, such as the deferral of certain scheduled Medicare payment reductions, the temporary loosening of restrictions on Medicare coverage for telehealth services, and the expansion of the Medicare hospital accelerated payment program during the public health emergency.


Continue Reading CMS Gives Emergency Dollars to Medicare Providers . . . but With Strings Attached

As part of its efforts to give healthcare providers greater flexibility to respond to the rapidly growing public health emergency, on March 30, 2020, the Centers for Medicare & Medicaid Services (CMS) issued an initiative called “hospitals without walls,” which is an unprecedented array of temporary waivers to allow hospitals to expand treatment capacity outside their hospital walls in response to the patient surge resulting from the COVID-19 pandemic, the illness caused by the new coronavirus. The CMS waivers are effective retroactively to March 1, 2020, and continue for the duration of the COVID-19 national health emergency. The hospitals without walls initiative provides new opportunities for ambulatory surgery centers (ASCs) to play an important role in combating this crisis, especially significant when the elective surgeries that are a mainstay of many ASCs’ business are largely halted under state and local shutdown orders.


Continue Reading CMS Expands Ambulatory Surgery Centers’ Role in Response to COVID-19 Pandemic

Medical professionals are on the front line in the fight against COVID-19. In these most trying circumstances, we know everyone is acting in the best interests of the patients, with compassion, and with prudence. Nonetheless, you should begin to think about what comes after the war. Our experience in past disasters and crises unfortunately teaches us that regulators, government investigators, and plaintiffs’ lawyers will often seek to second-guess and question every course of conduct and decision. Here are several practical strategies for helping ensure that you can show you acted with integrity and in the best interests of your patients.


Continue Reading Real-Time Strategies for Healthcare Providers: Preparing for Government Investigations and Litigation Arising From the COVID-19 Pandemic

Stabilizing core business operations and managing risk should be key priorities at this stage of your company’s response to COVID-19. On Sunday, March 29, the Federal Trade Commission and United States Department of Justice issued a joint statement to ease the challenges ahead by confirming that they will take exigent circumstances into account in evaluating joint efforts to facilitate production and distribution of personal protective equipment (PPE), medical supplies, and healthcare.


Continue Reading Strategies for Collaborating With Other Health Care Firms to Expand Production and Secure the Supply Chain

On March 27, 2020, Congress responded to the COVID-19 emergency by adopting the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), the most massive economic recovery legislation in United States history. A key focus of the CARES Act is the adoption of a variety of measures designed to expedite the approval and availability of drugs and devices needed to fight the pandemic, to shore up the financial positions of hospitals and other healthcare providers facing unprecedented demands, and to temporarily relax restrictions that may make it more difficult for patients to obtain access to needed testing and care. These measures include provisions that enhance access to telehealth services; provide expanded coverage for COVID-19-related services from Medicare, Medicaid, and private insurance and managed care organizations; expedite review and approval of new potential treatments; defer certain scheduled Medicare cuts and provide add-on payments to hospitals for treatment of COVID-19 patients; and expand the authority of non-physician practitioners in some circumstances.

Many of these new measures are specifically limited to the duration of the COVID-19 public health emergency. However, a number of them also reflect reforms that providers, drug and device manufacturers, and other industry participants have sought for some time, and it will be interesting to see whether experience with those reforms during the crisis leads to permanent changes in the healthcare system.

The following is a summary of the major healthcare provisions of the CARES Act.


Continue Reading CARES Act Healthcare Provisions: New and Expanded Tools for the Pandemic Crisis

On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (FFCRA) in response to the spread of the novel coronavirus and the illness it causes, COVID-19. The Act goes into effect on April 1, 2020 and remains in effect through December 31, 2020.

As discussed in our prior client alerts “Recent Clarifications to Families First Coronavirus Relief Act” and “Senate Passes Coronavirus Bill Requiring Paid Leave,” the Act provides for up to 80 hours (two weeks) of Emergency Paid Sick Leave if an employee is unable to work or telework for one of six specified reasons. Additionally, the Act provides up to 12 weeks of Emergency Paid FMLA Leave for one qualifying reason — that the employee is unable to work or telework due to the need to care for the employee’s minor child because the child’s school or place of care has been closed due to this public health emergency. The first two weeks of Emergency Paid FMLA Leave is unpaid, though the Emergency Paid Sick Leave will be applied to cover the first two weeks.

There are a myriad of questions and issues for employers to work through in applying these new provisions. Our team has been working non-stop to interpret these provisions, review new guidance, and provide answers. In addition, the Department of Labor (DOL) has established the COVID-19 and the American Workplace webpage, which includes a variety of fact sheets, Question-and-Answer pages, and workplace posters available to employers detailing these provisions.


Continue Reading Who Is a “Health Care Provider” Exempt From Paid Leave Requirements Under the Families First Coronavirus Response Act?

For a number of clear and compelling reasons, telemedicine (also known as telehealth) is rapidly becoming one of the most powerful weapons in the fight against the global coronavirus outbreak and COVID-19, the disease it causes. Telemedicine can reduce the need for in-person or in-hospital visits and, in turn, slow the transmission of the coronavirus among actual or potential patients by reducing the risk of contact with someone carrying the virus. Telemedicine helps protect providers from infection; reduces overall demands for increasingly scarce supplies, equipment, and human resources in a healthcare system already being pushed to its limits; and supports the dissemination of much-needed information regarding the pandemic to epidemiologists, researchers, and government entities.

The immediate benefits of telemedicine have received near-universal recognition. However, the value of telemedicine in the long term must also be recognized. While the COVID-19 emergency is an unwelcome laboratory in which to test this potential, our current situation provides an opportunity to learn more about how telemedicine can function most effectively, and helps us plan for its expanded use to improve the delivery of healthcare services long after this crisis has passed.


Continue Reading Telemedicine and COVID-19: Immediate and Necessary Solutions, Long-Term Opportunities

On Monday, March 23, 2020, the Office of Inspector General of the US Department of Health and Human Services (OIG) issued a Fraud Alert concerning emerging fraud schemes related to the COVID-19 pandemic. In this Fraud Alert, the government identifies a number of scams being perpetrated against the public and about which we should all remain vigilant. These fraud schemes include the following:

  • The sale of bogus coronavirus test kits to Medicare beneficiaries to obtain recipients’ personal information (including their Medicare beneficiary identification number). This is a form of identity theft, and the government stresses that the sorts of services being offered are “unapproved and illegitimate.” The scammers want access to victims’ personal information in order to fraudulently bill Medicare and Medicaid.
  • The sale of coronavirus supplies to obtain personal information that may be used to perpetrate additional fraud schemes. As with other potential scams, you should be wary of unsolicited requests for your personal information — including your health insurance beneficiary number and Social Security number. You should also be suspicious of unexpected calls or visitors to your home offering coronavirus tests, supplies, or other materials.
  • The use of telemarketing calls, social media, and door-to-door visits to attempt to obtain money or personal information. The OIG also recommends that you be very skeptical of advertisements for coronavirus testing and treatment on Facebook and other social media sites. All coronavirus testing and treatment should be managed and approved by a hospital or a physician or other trusted healthcare professional.
  • Other potential fraud schemes. Although this is not specifically covered in the Fraud Alert, if and when the federal government approves stimulus payments to the American public, there will also certainly be criminals who will seek to defraud recipients of those funds. For example, be mindful that the government will not contact you and ask you for your bank account information or Social Security number in order to award coronavirus stimulus payments. There may also be fake “charities” soliciting “contributions”. If someone calls and asks for bank account information or personal information to confirm eligibility for a government payment, to issue a government payment, or to request a charitable donation, the best course of action is to ask for the caller’s name, title, and call-back number and then contact the local field office for the Federal Bureau of Investigation (FBI) or the National Center for Disaster Fraud Hotline (1.866.720.5721 or disaster@leo.gov) to determine whether the request is legitimate.


Continue Reading New OIG and FBI Announcements Highlight Coronavirus Fraud Schemes Targeting Americans