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PA Health Law Project Newsletter

The Pennsylvania Health Law Project has published its November 2020 newsletter Health Law News.

Included in this month’s edition are articles about:

How the renewal of the federal COVID-19 public health emergency declaration extends key Medicaid protections.
State planning for children with complex needs.
State efforts to connect people to COVID-19 testing and care.
An upcoming webinar about challenging Medicaid and Community HealthChoices waiver service denials.

Read about these subjects and more in the Pennsylvania Health Law Project’s November 2020 newsletter.

PA Safety Net Admin2020-11-17T15:00:32+00:00November 4th, 2020|Coronavirus, COVID-19, Pennsylvania Medicaid, Pennsylvania Medicaid COVID-19, Pennsylvania Medicaid policy|Comments Off

The following is the latest COVID-19 information from the state and federal governments as of 2:45 p.m. on Friday, October 30.

Pennsylvania Update

Department of Health

The Department of Health updated its hospital guidance to clarify that hospitals must test COVID-19 patients prior to discharge to another facility and communicate those test results to the receiving facility prior to discharge.

In response to an increase of new COVID-19 cases in Huntingdon County, the Department of Health has contracted for a drive-through and indoor testing clinic in the county. Testing will be available at the Huntingdon Plaza, Suite 7505, R. 22 and S. 4th Street in Huntingdon beginning on October 29 and running until Monday, November 2. The tests are free and no appointment is needed.

Department of Health – by the numbers

Pennsylvania’s COVID-19 case count recently surpassed 200,000. The daily total has been in four figures every day this month except for one, which has not happened since the early months of the pandemic.
Four times in the last nine days the state has totaled more than 2000 new cases – the first times the daily total has exceeded 2000 in any one day since the beginning of the pandemic.
With today’s latest figures, the death count now exceeds 8700.
Of that number, 61 percent have been residents of long-term-care facilities.
Overall, nearly 26,000 residents of long-term-care facilities and more than 5600 people who work in those facilities have contracted COVID-19. Those figures encompass 1063 facilities in 63 of Pennsylvania’s 67 counties.
More than 12,200 health care workers in the state have contracted COVID-19.
The number of people currently hospitalized with COVID-19 is more than twice what is was on October 1 and is at its highest level since June 2.
The number of COVID-19 patients currently breathing with the help of a ventilator also is more than twice what it was on October 1 and is at its highest level since mid-June.
20 percent of hospital adult ICU beds are currently unoccupied, as are 16 percent of medical/surgical beds, 31 percent of pediatric beds, 11 percent of pediatric ICU beds, and 38 percent of airborne isolation unit beds. The medical/surgical and medical/surgical ICU bed figures are similar to what they have been in recent weeks but both pediatric figures are lower than they have been recently.

Department of Human Services

DHS’s Office of Long-Term Living and Office of Developmental Programs have updated their guidance on COVID-19 for personal care homes, assisted living residences, and private intermediate-care facilities.

Federal Update

Provider Relief Fund

A reminder that applications for Phase 3 general distribution payments are due November 6.
Another reminder that HHS will hold a webcast about the Phase 3 general distribution on Monday, November 2 at 3:00 p.m. (eastern) for interested parties. Go here to register for the webcast and to submit questions. Also available are a fact sheet and a presentation about the Phase 3 general distribution.
HHS has added or modified 61 questions in its Provider Relief Fund FAQ. The changes, labeled either “Added 10/28/2020” or “Modified 10/28/2020,” generally address auditing and reporting requirements for the Provider Relief Fund, including accounting for expenses and lost revenue, as well as the sharing of general distribution money among parent and subsidiary entities, executive salary cap calculations, and more. The modified and added questions and answers offer additional details about many issues so providers should review these changes carefully. The following excerpts address some specific matters about which providers have inquired:
- ” Healthcare related expenses attributable to coronavirus may include items such as supplies, equipment, information technology, facilities, employees, and other healthcare related costs/expenses for the calendar year. The classification of items into categories should align with how Provider Relief Fund recipients maintain their records.” [emphasis added]
- “… providers that already have a cost allocation methodology in place, may allocate normal and reasonable overhead costs to their subsidiaries which may be an eligible expense if attributable to coronavirus and not reimbursed from other sources.”
- “HHS initially advised providers that once a subsidiary TIN attested to and accepted a General Distribution payment, the money must stay with, and be used by, the subsidiary TIN. However, HHS has received feedback indicating that some subsidiary TINs accepted a General Distribution payment prior to the release of this guidance, and that they would have had their parent TIN accept the money, had they known earlier of HHS’s position. In light of these timing concerns, HHS is revising its prior guidance and clarifying that, for General Distribution payments only, a subsidiary TIN can transfer its General Distribution payment to a parent TIN; this is true even if a subsidiary TIN initially attested to accepting a General Distribution payment. Consistent with other longstanding guidance, the parent TIN may use the money and/or allocate the money to other subsidiary TINs, as it deems appropriate. Regardless of which entity (the parent or subsidiary) attested to the receipt of the General Distribution payments, the parent entity can report on the use of the General Distribution payment as part of the HHS reporting process.”
- “In accordance with the Terms and Conditions, if you believe you have received an overpayment and expect that you will have cumulative lost revenues and increased costs that are attributable to coronavirus during the COVID-19 public health emergency that exceed the intended calculated payment, then you may keep the payment.”
- “Providers do not need to be able to prove, at the time they accept a Provider Relief Fund payment that prior and/or future lost revenues and increased expenses attributable to COVID-19 (excluding those covered by other sources of reimbursement) meet or exceed their Provider Relief Fund payment. Instead, HHS expects that providers will only use Provider Relief Fund payments for permissible purposes and if on June 30, 2021, providers have leftover Provider Relief Fund money that they cannot expend on permissible expenses or losses, then they will return this money to HHS.”
- “The Terms and Conditions associated with each Provider Relief Fund payment do not permit recipients to use Provider Relief Fund money to pay salaries at a rate in excess of Executive Level II which is currently set at $197,300. For the purposes of the salary limitation, the direct salary is exclusive of fringe benefits and indirect costs. The limitation only applies to the rate of pay charged to Provider Relief Fund payments and other HHS awards. An organization receiving Provider Relief Fund payments may pay an individual’s salary amount in excess of the salary cap with non-federal funds” An example aggregate calculation is provided.
- Again, we strongly encourage providers to review all of the 10/28 additions and modifications of the Provider Relief Fund FAQ.

Centers for Medicare & Medicaid Services

CMS has published an interim final rule that calls for several regulatory changes driven by the COVID-19 pandemic.
All Medicare beneficiaries, including Medicare Advantage participants, will pay nothing for COVID-19 vaccines, as will most Medicaid beneficiaries. Most private insurers are required to cover the vaccines as well. Vaccines for the uninsured will be reimbursed in the same manner as care for the uninsured that is reimbursed through the Provider Relief Fund.
Medicare will make enhanced payments for eligible inpatient cases that involve use of certain new products authorized or approved to treat COVID-19. The enhanced payments will be equal to the lesser of: (1) 65 percent of the operating outlier threshold for the claim; or (2) 65 percent of the cost of a COVID-19 stay beyond the operating Medicare payment (including the 20 percent add-on payment under section 3710 of the CARES Act) for eligible cases.
States will retain their ability to gain an additional, temporary 6.2 percentage point increase in their federal medical assistance percentage (FMAP, the rate at which the federal government matches state Medicaid spending) if they agree to maintain the enrollment of “validly enrolled beneficiaries” through the end of the month in which the COVID-19 public health emergency ends. States are permitted to make changes in beneficiary coverage, cost-sharing, and post-eligibility treatment of income.
This rule expands on previous CARES Act requirements that providers of COVID-19 tests publicize the cash prices for such tests, requiring that every provider of COVID-19 diagnostic tests make public on the internet the cash price for a COVID-19 diagnostic test.
This rule extends the Comprehensive Care for Joint Replacement Program’s Performance Year 5 an additional six months, to September 30, 2021, changes the reconciliation periods for the program, and makes other changes in the program.
- For further information about this new interim final rule, see the following resources:
- CMS’s announcement about the new policy
- the interim final regulation itself
- a CMS fact sheet
- a separate CMS fact sheet on the Medicaid enrollment aspects of the regulation
- for questions about the Comprehensive Care for Joint Replacement model, contact CMS at CJRSupport@cms.hhs.gov.

CMS has published its annual update of home health payment rates for calendar year 2021. Included in this rule is a provision that makes permanent changes in home health regulations introduced as temporary in the March 2020 “Policy and Regulatory Revisions in Response to the COVID–19 Public Health Emergency” Interim Final Rule with Comment. Under this provision, the temporary ability of home health agencies to use telehealth in the provision of home health care to qualified Medicare beneficiaries is now made permanent. Learn more about this important change and other aspects of the 2021 home health regulation in this CMS news release.
CMS has updated its document “COVID-19 Frequently Asked Questions (FAQs) on Medicare Fee-for-Service (FFS) Billing.” Updated information on pages 120 and 121 addresses temporary COVID-19 waivers that enable hospitals to provide certain outpatient services in alternative care settings. Both updates are labeled “New: 10/28/20.”

Department of Health and Human Services

HHS announced that it will distribute $333 million in first round performance payments to more than 10,000 nursing homes for achieving significant reductions in COVID-19-related infections and deaths between August and September. Nursing homes will receive September quality incentive payments next week and will have four more opportunities to receive additional incentive payments. Go here to see CMS’s announcement about the awards and go here to see a state-by-state breakdown of those awards.
HHS’s Administration for Community Living hosts a monthly webinar series that invites subject matter experts and practitioners from across the home-and-community-based services (HCBS) spectrum to share insights and best practices to develop high-quality HCBS services and programs. The next webinar will be held on November 12 at 3:00 (eastern) and feature payer and provider industry leaders discussing changes their industries have experienced since the beginning of the COVID-19 emergency and what lies ahead for them. Several payers and providers will share innovations they used to address COVID. Go here for more information and to register for the webinar.

Centers for Disease Control and Prevention

The CDC has updated its guidance on when individuals should quarantine.
The CDC has updated its interim clinical guidance for managing patients with confirmed COVID-19.
The CDC has posted several documents on reinfection with COVID-19. They include:
The CDC’s weekly morbidity and mortality report presents new research on COVID-19 mitigation behaviors according to age group in the U.S. between April and June.
The CDC’s weekly morbidity and mortality report presents new research on trends in the use of telehealth during the emergence of the COVID-19 pandemic from January through March in the U.S.
The CDC has released its latest COVID-19 science update. The update includes sections on vaccines, epidemiology, clinical treatment and management, and laboratory science.

Food and Drug Administration

The FDA has updated its enforcement policy for non-invasive remote monitoring devices used to support patient monitoring during COVID-19 emergency.
The FDA has approved two generic drugs that facilitate tracheal intubation and to provide skeletal muscle relaxation during surgery or mechanical ventilation: succinylcholine chloride injection USP 200 mg/10 mL and cisatracurium besylate injection USP 10 mg/5 mL.
The FDA has updated its Antigen Template for Test Developers that presents the agency’s current recommendations about data and information that should be submitted to the FDA in support of an emergency use authorization request for a COVID-19 antigen test.

Congressional Research Service

The Congressional Research Service has published the new report “COVID-19 and the Uninsured: Federal Funding Options to Pay Providers for Testing and Treatment.”

Resources to Consult

Pennsylvania Department of Human Services

Main COVID-19 Page

COVID-19 Provider Resources

Press Releases

Pennsylvania Department of Health

Main COVID-19 Page

PA Health Alert Network

Centers for Disease Control and Prevention

Main COVID-19 Page

FAQ

PA Safety Net Admin2020-11-17T15:00:17+00:00November 2nd, 2020|Coronavirus, COVID-19|Comments Off

CMS’s Verma Visits Western PA

COVID-19 was the primary subject on the minds of health care executives who met with Centers for Medicare & Medicaid Services Administrator Seema Verma in western Pennsylvania on Tuesday.

Among the issues discussed at a health care forum were the concerns of hospital administrators about rising COVID-19 case counts and their worries over the adequacy of supplies of available hospital beds, drugs, and personal protective equipment in the near future; steps like enhanced access to telehealth that CMS has made available for Medicare beneficiaries to help them during the pandemic; the work – and continued existence – of the Regional Response Health Collaboratives that support long-term-care facilities fighting COVID-19 outbreaks and the possibility that those collaboratives may expire in December; and more.

Learn more about Ms. Verma’s visit to Pennsylvania in the Pittsburgh Business Times article “Hospital, nursing home execs tell CMS administrator they need more help.”

PA Safety Net Admin2020-10-29T06:00:49+00:00October 29th, 2020|Coronavirus, COVID-19|Comments Off

Health Secretary Discusses Status of COVID-19 in PA

Pennsylvania Health Secretary Rachel Levine, M.D., held a news conference on Monday to discuss the status of the COVID-19 public health emergency in the state and answer questions from reporters.

During the news conference, Secretary Levine discussed the recent increase in the number of new COVID-19 cases in the state, the age groups that are seeing increases, the status of COVID-19 in schools, the state’s prospects for containing the virus’s spread, the changing nature of the virus’s impact on those who contract it, the upcoming holiday season, and more. Read about what Secretary Levine had to say in this Pennsylvania Capital-Star article and another account of her news conference in the Pittsburgh Tribune-Review.

PA Safety Net Admin2020-10-28T06:00:31+00:00October 28th, 2020|Coronavirus, COVID-19|Comments Off

COVID-19 Update: Monday, October 26

The following is the latest COVID-19 information from the state and federal governments as of 3:45 p.m. on Monday, October 26.

Pennsylvania Update

Governor Wolf

Governor Wolf has written to President Trump asking him to work with Congress to provide funding to enable the state to continue its Regional Response Healthcare Collaborative Program (RRHCP) for which current funding expires on December 31. The RRHCP is a partnership between the state’s departments of Human Services and Health and the Pennsylvania Emergency Managemental Agency through which selected Pennsylvania health systems work with long-term-care facilities that are vulnerable to the COVID-19 pandemic by providing assistance with preparation, prevention, response, and education.

Department of Health

The Department of Health has published an executive summary of the state’s plan to distribute and administer COVID-19 vaccines in Pennsylvania once such vaccines become available. Among other matters, the plan identifies critical populations and addresses vaccine provider enrollment, storage and handling, communication, and safety concerns.
The Department of Health has issued a training PowerPoint to assist skilled nursing facilities with capacity and testing reporting requirements.
The Department of Health has updated its FAQ on drugs for treating COVID-19.
The Department of Health has issued a health advisory titled “Additional Factors to Determine Close Contacts of Persons with COVID-19” with recommendations for implementing new guidance from the CDC on the identification and quarantine of close contacts.
The state has begun distributing its second allotment of COVID-19 antigen test kits provided by the federal government to Clinical Laboratory Improvement Amendments (CLIA)-certified institutions in Berks, Huntingdon, Union, and Westmoreland counties.
During a Monday news conference, Secretary Levine called for an extension of the authorization for the Pennsylvania National Guard to help with the state’s COVID-19 response.

Department of Health – by the numbers

Pennsylvania’s COVID-19 case count has now surpassed 195,000. The daily total has been in four figures every day this month except for one, which has not happened since the early months of the pandemic. This includes the three highest single-day new case counts since the pandemic began.
With today’s latest figures, the death count now nears 8700. Daily death counts are now generally lower than they were in the spring.
Overall, more than 30,000 residents and employees of long-term-care facilities have contracted COVID-19. Those figures encompass 1049 facilities in 63 of Pennsylvania’s 67 counties.
More than 12,000 health care workers in the state have contracted COVID-19.
The state-wide positivity rate for COVID-19 tests is now five percent, up from 4.2 percent last week; 30 counties are currently above five percent. Counties with what the state calls “concerning” positivity rates including Huntingdon (12 percent), Bradford (11.2 percent), Lawrence (9.0 percent), Lebanon (8.7 percent), and Westmoreland (8.4 percent).
According to the state’s weekly data dashboard, Berks, Bradford, Centre, Elk, Huntingdon, Lackawanna, Lawrence, Lebanon, Luzerne, Mifflin, Montour, Northumberland, Philadelphia, Schuylkill, and Westmoreland counties are in a “substantial” level of community transmission. Allegheny County is now in a low level of community transmission.
The rate of response to contact tracing efforts is not very good, but Secretary Levine reports that among those who have recently been diagnosed with COVID-19 and who responded to inquiries about their recent whereabouts, 55 percent said they had visited a restaurant in the past two weeks and 13 percent said they had visited a bar.
Over the past two weeks more than 2000 cases have been diagnosed among school-aged children. This reflects a change in the nature of who is contracting COVID-19: while the numbers are up in all age groups, such cases are more common in people under the age of 50 than they were in the spring and early summer.
Labs are reporting an average of 34,000-35,000 test results a day.
The number of people currently hospitalized with COVID-19 is more than twice what it was on October 1.
Secretary Levine said that the number of hospitalized COVID-19 patients generally lags behind case count trends by about two weeks and can therefore be expected to continue rising in the coming weeks.
The number of COVID-19 patients currently breathing with the help of a ventilator also is up significantly this month.
But Secretary Levine explained that far fewer hospitalized COVID-19 patients are assisted by ventilators now than they were during the pandemic’s early days. Back in the spring, roughly 30 percent of hospitalized COVID-19 patients in Pennsylvania were assisted by ventilators; now, only about 10 percent are.
She attributed this decline to how much providers have learned over the past few months about how to care for COVID-19 patients. Both treatment and therapeutics have improved since the spring. Patients continue to get very sick but the health care delivery system is better equipped to treat them.
25 percent of hospital adult ICU beds are currently unoccupied, as are 22 percent of medical/surgical beds, 36 percent of pediatric beds, 13 percent of pediatric ICU beds, and 40 percent of airborne isolation unit beds. These figures are similar to what they were a week ago.

Department of Human Services

DHS’s Office of Mental Health and Substance Abuse Services (OMHSAS) published a memorandum in August informing behavioral health managed care organizations, county mental health/intellectual disability offices, and behavioral health providers that specified state regulatory provisions have been temporarily suspended during the COVID-19 disaster emergency declaration period. OMHSAS has now re-issued this memorandum to update signature requirements for treatment and service plans. The notice applies to inpatient psychiatric services, outpatient psychiatric services, intensive behavioral health services, outpatient drug and alcohol services, mental health procedures, partial hospitalization, intensive case management, psychiatric rehabilitation services, community residential rehabilitation services, and long-term structured residences.