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The Coronavirus Aid, Relief & Economic Security Act (CARES Act) contains numerous regulatory and payment reforms aimed at bolstering the health care industry and its COVID-19 response efforts. Although far from complete, the CARES Act is a welcome step toward ensuring the sustainability of healthcare providers during this unprecedented public health emergency.

Payment and Financial Relief

• Suspends mandated reductions in Medicare payments from May 1, 2020 through December 31, 2020. This will result in increased Medicare payments to providers for services provided during this period.
• Hospitals reimbursed by the inpatient prospective payment system will receive an additional payment of 20% for patients diagnosed with COVID-19.
• Allocates $100 billion to the Public Health and Social Services Emergency Fund. Through grants and other mechanisms, this new program provides financial assistance to public entities, Medicare or Medicaid enrolled suppliers, and other non-profit and for-profit entities (determined by the Department of Health and Human services) that provide diagnosis, testing, or care for individuals with actual or suspected COVID-19. The funds are to cover unreimbursed health care related expenses or lost revenues attributable to this emergency. Funds are to be available for building temporary structures, leasing properties, purchasing medical supplies and equipment (including PPE and testing supplies), increasing workforce and training, activating emergency operation centers, retrofitting facilities, and providing for surge capacity.
• Allocates $180 million to Health Resources and Services Administration for use in supporting telehealth and rural health care activities responding to COVID-19, including support of rural critical access hospitals.
• Medicare providers and suppliers experiencing cash flow problems during the COVID-19 pandemic may request accelerated payments from the Medicare program.
  • Most providers may request up to 100% of the Medicare payment amount for a three-month period to be repaid commencing 120 days after payment, with payment in full due within 210 days.
  • Inpatient acute care hospitals, children’s hospitals, and cancer hospitals may request up to 100% of the Medicare payment amount for a six-month period to be repaid within one year of the payment date with recoupment commencing 120 days after payment.
  • Critical Access Hospitals can qualify for accelerated payments of up to 125% of their payment amount for a six-month period to be repaid within one year of the payment date with recoupment commencing 120 days after payment. CMS has already issued a fact sheet outlining the details of the program.
• Rural Health Clinics (RHCs) and Federally Qualified Health Centers (“FQHCs”) may serve as distant sites for telehealth services provided to Medicare beneficiaries. Reimbursement levels are to be similar to the national average for comparable telehealth services under the Medicare physician fee schedule but excluding costs associated with services reimbursed through the FQHC prospective payment system or RHC all-inclusive rate calculation.

COVID-19 Services

• All providers offering COVID-19 tests must update their websites to publish the cash price for COVID-19 tests. Health plans and insurers who have negotiated a contract rate with a provider for COVID-19 testing must reimburse the provider at the contracted rate. If no rate has been established in the contract, health plans and insurers must reimburse the provider at the provider’s published cash price unless a lower rate is negotiated.
• A state Medicaid program may choose to cover COVID-19 tests provided to uninsured individuals without cost sharing.
• Allocates $1.32 billion to FQHCs for diagnosing and treating COVID-19.
• Limits the liability of volunteer health care professionals under federal and state law for services provided to COVID-19 patients as long the volunteer is acting in good faith within the scope of his/her state license or certification. Exceptions apply to willful misconduct, gross negligence, and services provided under the influence of drugs or alcohol.

Regulatory Flexibility

• The Department of Health and Human Services (HHS) may waive the Medicare face-to-face requirements for home dialysis and hospice services.
• Allows nurse practitioners and physician assistants to order home health services during the six-month period following enactment of the CARES Act.
• Instructs HHS to encourage use of telecommunications systems in the provision of home health services during the public health emergency.
• Waives the requirement that inpatient rehabilitation facility patients attend three hours of therapy per day/15 hours per week.
• A state’s Medicaid program may allow for home and community-based services to be provided to patients in an acute care hospital as long as the services provided are not services provided by the hospital.

Sharing of Health Information/HIPAA

• Modifies 42 CFR Part 2, which governs the use and disclosure of substance use records, to better align with the Health Insurance Portability and Accountability Act (HIPAA), including to allow for sharing of protected health information (PHI) among health care providers and other covered entities with initial written patient consent, and to provide for notice of privacy practices requirements, disclosure requirements, and breach notification requirements.
• Directs the Secretary of HHS to issue guidance on the sharing of PHI related to COVID-19, in compliance with HIPAA regulations and applicable policies, within 180 days.
• Encourages healthcare providers to share information with applicable state prescription drug monitoring programs (PDMPs).

Davis Brown will be monitoring the regulatory implementation of the CARES Act and providing further information as it becomes available. In the meantime, do not hesitate to contact your Davis Brown attorney with any questions.