21 Practical Health Care Takeaways in the CARES Act

Saul Ewing Arnstein & Lehr LLP

Saul Ewing Arnstein & Lehr LLP

The Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) provides money, immunity and regulatory relief for health care facilities, workers and other providers; drug and device manufacturers; and individuals. The relief is largely provided during the COVID-19 public health emergency, but there are many instances in which the changes made will be permanent. Here are 21 practical health care-related takeaways of both professional and personal note:

  1. Health care providers should keep a record of supply chain problems they are encountering, including a list of products that are proving difficult or expensive to obtain, so they may contribute to a report to be prepared by the National Academies of Sciences, Engineering, and Medicine on supply chain gaps with recommendations for improving the resiliency of the supply chain for critical drugs and devices.
  2. Manufacturers of approved respiratory protective devices are given immunity against all claims for loss relating to the use of respiratory protective devices during a declared emergency due to the devices being added as covered countermeasures under the Public Health Services Act. While a boon for manufacturers, the immunity bars claims by health care workers harmed by a respiratory protective device failure.
  3. Manufacturers of devices critical to public health during a public health emergency will be required to report to the Secretary of Health and Human Services as soon as practicable but within six months when production of a device is discontinued or interrupted during a public health emergency. Devices on the list are entitled to expedited review and inspection, which may provide an advantage for competitors looking to enter the market.
  4. Providers of diagnostic tests are required to post their cash prices on a public internet site or pay a penalty of $300 a day. The avoidance of penalties is not the most important reason for providers to post or update their posted rates as soon as possible. The Act requires insurers to pay for SARS–CoV–2 and COVID–19 tests. In the absence of a negotiated rate, insurers must pay the cash price posted by the provider for those tests, giving providers control of their reimbursement.
  5. Volunteer health care professionals are given federal and state immunity for harm caused by providing health care services during the COVID-19 public health emergency. The protection provided by the Act has significant conditions and volunteers may find better protection under state Good Samaritan laws.
  6. Older Americans (those over 60) and home delivery nutrition services will benefit from the expansion of home-delivered nutrition services to those unable to obtain nutrition because the individual is practicing social distancing during the emergency period and possible relaxation of dietary guidelines.
  7. Nurses are given an opportunity to practice independently through the creation of nurse-managed health clinics that provide primary care or wellness services to underserved or vulnerable populations if associated with a school, college, university or department of nursing; federally qualified health center; or independent nonprofit health or social services agency.
  8. Women can now pay for over-the-counter tampon, pad, liner, cup, sponge, or similar menstrual care product expenses from their health savings accounts, Archer medical savings accounts, health flexible spending plans, and health reimbursement arrangements because they are finally being treated as qualified medical expenses.
  9. Physicians can now be reimbursed for telehealth services provided to an otherwise eligible person by a federally qualified health center or a rural health clinic.
  10. Home dialysis patients and nephrologists do not have to have a face-to-face visit during emergency periods.
  11. Hospice patients and physicians may use telehealth for recertification of care instead of face-to-face visits during emergency periods.
  12. Home health patients may be certified for care by nurse practitioners, clinical nurse specialists and physician assistants. The effective date of this expansion has not been determined but should be within six months of the passage of the Act. This expansion is not limited to the emergency period.
  13. Hospitals will receive 20 percent more under the prospective payment system for COVID-19 patients during the emergency period.
  14. Rehabilitation hospitals will not have to provide 15 hours of therapy per week during the emergency period.
  15. Long-term care hospitals will not be subject to the 50-percent rule and site-neutral inpatient prospective payment system payment rates during the emergency period.
  16. Medicare recipients will not have to pay the deductibles for the costs of the COVID-19 vaccine and its administration.
  17. Pharmacies may provide Medicare recipients with a 90-day supply of drugs if it is safe to do so during the emergency period. This will be particularly helpful for seniors who can’t go out during the crisis.
  18. More hospitals will be eligible to participate in Medicare’s Hospital Accelerated Payment Program and those receiving accelerated payments may receive larger payments. Hospitals should recheck their eligibility to see if they now qualify.
  19. Medicare program funding that was set to expire on May 22, 2020 is extended until November 30, 2020, including state health insurance programs, Area Agencies on Aging, and outreach for low-income assistance programs. The Act allows the U.S. Department of Health and Human Services (HHS) to extend contracts for quality measurement and performance improvement. Physician Work Geographic Index Floor payments (physician fee adjustments) are extended until December 1, 2020.
  20. Medicaid program funding is extended to November 30, 2020 for spousal impoverishment protections and demonstration programs for Medicaid Money Follows the Person and Medicaid Community Health Services.
  21. Scheduled reductions for disproportionate share hospital (DSH) payments are delayed until November 30, 2020.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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