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OCR Issues Guidance on Telehealth Remote Communications Following Its Notification of Enforcement Discretion
March 20, 2020

On March 20, 2020, the Office for Civil Rights (OCR) at the U.S Department of Health and Human Services (HHS) issued guidance on telehealth remote communications following its Notification of Enforcement Discretion during the COVID-19 nationwide public health emergency.

The Notification, issued earlier this week, announced that effective immediately, OCR is exercising its enforcement discretion to not impose penalties for HIPAA violations against health care providers in connection with their good faith provision of telehealth using communication technologies during the COVID-19 nationwide public health emergency.

The new guidance is in the form of frequently asked questions (FAQs) and clarifies how OCR is applying the Notification to support the good faith provision of telehealth. Some of the FAQs include:

  • What covered entities are included and excluded under the Notification?
  • Which parts of the HIPAA Rules are included in the Notification?
  • Does the Notification apply to violations of 42 CFR Part 2, the HHS regulation that protects the confidentiality of substance use disorder patient records?
  • When does the Notification expire?
  • Where can health care providers conduct telehealth?
  • What is a “non-public facing” remote communication product?

“We are empowering medical providers to serve patients wherever they are during this national public health emergency,” said Roger Severino, OCR Director. “We are especially concerned about reaching those most at risk, including older persons and persons with disabilities,” Severino added.

  • The FAQs on telehealth remote communications may be found here.
  • The press release on telehealth remote communications may be found here.
  • The Notification of Enforcement Discretion on telehealth remote communications may be found here.

For more information on HIPAA and COVID-19, see OCR’s February 2020 Bulletin, use this link.

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From ANCOR:

We’re hearing that the Senate could begin voting as early as tonight (on the third-round stimulus package, which we’re working to ensure includes funding for key I/DD programs and prioritizes Medicaid-funded services). We’ve seen a fabulous response to the action alert we sent late yesterday (thank you!), but we need to ensure several influential Senators hear from advocates on this issue. Please use this link to reach your legislator.

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ANCOR is issuing a third call to action this week because we just updated our message to Congress about funding supports for people with intellectual / developmental disabilities (I/DD) during the COVID-19 outbreak. The new message reflects greater urgency, given Congressional negotiations that are occurring right now.

The Ask: Please use this updated email action tool to ask Congress to fund disability supports as it negotiates a third COVID-19 package.

The Details: Senate Republican and Democrats are working on competing packages for a third round of COVID-19 funding legislation. Because the negotiations surrounding combining these packages are creating new openings for the needs of people with I/DD to be heard, we are sending Congressional offices a revised message from the one we sent yesterday. This new message further emphasizes how urgently disability supports need funding to ensure the well-being of the people they support during the outbreak. It also expresses disappointment that these supports have not been included in funding packages to date. It is very important that you speak up during this critical time when legislation is being drafted!

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The following information was provided to RCPA by Jeffrey J. Worley, Esq. | Gibbel Kraybill & Hess LLP.  We appreciate his sharing of this important information.

FMLA and Paid Leave
Congress passed the Families First Coronavirus Response Act on March 18, 2020, and the President signed the legislation shortly thereafter. The provisions below become effective within 15 days. We will provide further guidance on the details of below as they are released in the coming days. The Act contains the following provisions that will affect a business’s employees directly:

The Family Medical Leave Act Expansion.
The following modifies the rules under the expansion of FMLA due to the COVID-19 emergency and does not change the other sections of the Act :

  • Employers* with “fewer than 500 employees” in 20 or more calendar weeks in 2020 or 2019 are now subject to the FMLA extension.
  • Eligible employees** are now those that were employed for 30 calendar days or more.
  • Qualifying need for leave now means an employee who is unable to work or telework due to the need to care for a child under the age of 18 years old if such child’s elementary or secondary school, or place of care is closed or a childcare provider is unavailable due to a COVID-19 emergency declared by a Federal, State, or local authority.
  • Leave: 1. The first 10 days of leave under the expansion may be unpaid leave; 2. If an employee has accrued vacation, personal, medical, or sick leave he or she may substitute it for unpaid leave; 3. After an employee has exhausted the first 10 days of leave, an employer must provide paid leave each additional day of leave taken; 4. These payments are set at two-thirds of the employee’s normal pay at the normal scheduling period, but cannot exceed $200/day or $10,000 aggregate.
  • Return: employers with fewer than 25 employees may not be required to put an employee on leave back in his or her position that no longer exists due to the health emergency. Several requirements apply.
  • Tax relief may be available for payment made pursuant to the expansion.

*Regulations may be passed to exempt small businesses with fewer than 50 employees if compliance would jeopardize the business as a going concern

**Regulations may be passed that exclude health care providers and emergency responders and those employers may elect to exclude employees from the definition without further regulations

Emergency Paid Sick Leave.
The following modifies establishes rules for paid sick leave due to the COVID-19 emergency:

  • Employers* who employ “fewer than 500 employees” are subject to the requirements.
  • Eligible employees** are all employees of an employer, regardless of the amount of time employed.
  • Qualifying need for leave means an employee that is unable to work or telework due to the following: 1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19; 2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19; 3. The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis; 4. The employee is caring for an individual who is subject to an order as described in (1) or has been advised as described in (2); 5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions; 6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
  • Leave: 1. Full-Time employees shall receive 80 hours of paid leave; 2. Part-Time employees shall receive leave equal to the number of hours usually worked in a two-week period; 3. Compensation for (1)-(3) above shall be at the regular rate of pay, but not exceed $511 per day and $5,110 in the aggregate, and compensation for (4)-(6) above shall be at the rate of two-thirds of normal pay, but not exceed $200 per day and $2,000 in the aggregate.
  • Employers may not: 1. Require an employee to find a person to cover their hours; 2. Require an employee to use other paid leave; 3. Retaliate against an employee for seeking paid sick leave; 4. To the extent their current policies provide more benefits or leave, substitute their policies with this Act.
  • A posted notice is required under the Act, but the Secretary of Labor will release examples before compliance is required.

* Regulations may be passed to exempt small businesses with fewer than 50 employees if compliance would jeopardize the business as a going concern

** Except that an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.

Each situation is different and you should contact our offices or your legal counsel for specific guidance.  Should you have any questions concerning the above, particularly when leave starts and stops, and calculating the amount of leave and pay required by the act, please do not hesitate to contact Jeff at jworley@gkh.com or 717.291.1700. More laws, regulations, and guidance will be issued to provide greater detail to employers in how they are to enact the requirements of the new Act.

As we go through this, I would encourage all of you to keep open lines of communications with your employees.  This is something that none of us have been through.  Your employees are concerned about their health, their finances, and their jobs.  Keep a listening ear-but also know that you do not have to provide instantaneous responses.  Things are changing hour by hour.  It is ok to not know how to respond.  But is important that you are listening and communicating.

For additional information as to how GKH is responding this situation, please see the link below-
https://gkh.com/news/2020/03/coronavirus-preparations/

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From ANCOR:
Two minutes of your day is all we need to ensure the well-being of people with intellectual and developmental disabilities (I/DD) and that the supports they rely on aren’t overlooked during the COVID-19 outbreak.

The Ask: Use our email tool to remind your members of Congress that I/DD supports and services are essential lifelines to people with I/DD and their families. They must be funded so that their delivery is not compromised during this public health crisis.

The Details: Congress is working at breakneck speed to address the unique needs of various populations in our country through three different funding packages, one of which is expected to be focused on health care. We need your voice right now to ask Congress to include I/DD supports, including Home and Community-Based Services, in that package.

It is crucial for Congress to understand that disability supports are a key component of health services for people with I/DD, and to understand the implications for people’s lives in the community after the crisis if community supports cannot remain financially viable during this crisis.

The COVID-19 crisis is exposing key vulnerabilities in I/DD supports, as people are asked to stay home as community centers and day programs close to try to limit the spread of COVID-19. In turn, providers of those programs face uncertain futures. When the dust settles and we return to life after the pandemic, will there be any place for people with I/DD to go? We need Congress to ensure the answer is yes.

The I/DD workforce is already in crisis. These staffing shortages will be significantly exacerbated as DSPs fall sick or have to tend to loved ones. This is the time for Congress to work on strengthening disability supports through funding for key provisions such as overtime and hazard pay to incentivize DSPs to stay and other workers to join the field; priority access to protective gear and training; financial relief for supports such as day services so they remain viable after the outbreak; and more. Most importantly, we need Congress to include I/DD services in any stimulus package to ensure there are supports to return to once the current pandemic subsides. With 700,000 people on states’ waiting lists for services, now is not the time to lose critical capacity.

Please speak up TODAY for the inclusion of disability supports in any package Congress prepares to address COVID-19 today, to help ensure people with disabilities have the support they need, when they need it the most.

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Late last week, the House passed the Families First Coronavirus Response Act (HR 6201). The final bill was extensively negotiated between House Democrats and the White House. The bill is now with the Senate for passage early next week. This is the second funding package in the federal response to COVID-19.

The bill proposes:

Increased Federal Funding

  • Provides states with a 6.2% increase on their traditional FMAP for all medical services, if they agree to certain terms.
  • FMAP increase will last the length of the Public Health Emergency.
  • This will not apply to either an expansion or administrative FMAP.
  • No specific rate increase to ensure that relief for the Medicaid states is shared with disability workforce.
  • Provides the territories with a 6.2% increase on their traditional FMAP and a corresponding increase in their allotments for the next two fiscal years.
  • Provides $1 billion in grant funding to help states manage and expand their unemployment insurance programs.

Sick Leave

  • Employees of employers with fewer than 500 employees and government employers, who have been on the job for at least 30 days, with the right take up to 12 weeks of job-protected leave under FMLA to be used for any of the following reasons:
    • To adhere to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus;
    • To care for an at-risk family member who is adhering to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus; and
    • To care for a child of an employee if the child’s school or place of care has been closed, or the child-care provider is unavailable, due to a coronavirus.
  • After the two weeks of paid leave, employees will receive a benefit from their employers that will be no less than two-thirds of the employee’s usual pay.
  • Employers with 500 or less employees will get all wages associated with the sick leave and FMLA provisions 100% covered via tax credits.
  • Employers with more than 500 employees are excluded.
  • DOL will have the option of exempting workers at any company with fewer than 50 employees, if it determines that providing paid leave “would jeopardize the viability of the business as a going concern.”
  • The caregiving component of the paid sick leave provisions does not cover a family member or other individual stepping in as a caregiver if COVID-19 results in someone losing their usual source of care and does not apply to caring for adults with disabilities.
  • Unlike earlier drafts, it does not establish a permanent paid sick leave entitlement for all families.
  • $15 million for the Internal Revenue Service to implement tax credits for paid sick and paid family and medical leave.
  • Amendments to FMLA would expire in a year and exemptions are available for small businesses.
  • There is no additional funding for SSA to administer these programs.

Testing, Treatment, and Other Medical Provisions

  • Zero cost-sharing in Medicaid program related to testing and diagnosis of COVID-19, waiving all cost sharing for labs and diagnostics.
  • State option to provide coverage for the uninsured for these services through the Medicaid program. Provides states with 100% FMAP for all the services related to the cost sharing for those states taking up this state option.
  • Leaves Medicaid cost-sharing in place for medical services related to treatment of COVID-19.
  • No provisions ensure people with disabilities have access to a 90-day medication and medical supply fills.

Telehealth

  • Waives current prohibitions surrounding the furnishing of telehealth services in the Medicare program, during the current public health emergency, furnishing a service allowable under the Medicare program, even if the program did not pay for such service, is a qualifying relationship.
  • Silent on Medicaid telehealth.

Nutrition Assistance

  • $250 million for the Senior Nutrition program in ACL.
  • $400 million to assist local food banks to meet increased demand for low-income Americans during the emergency. Of the total, $300 million is for the purchase of nutritious foods and $100 million is to support the storage and distribution of the foods.
  • Suspends the work and work training requirements for SNAP during this crisis.

We will continue to share information with our members as we become aware.

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Hole torn in a dollar bill with medicaid text

News from ANCOR:

FINANCE DEMOCRATS DENOUNCE TRUMP ADMIN FOR HARMFUL MEDICAID BLOCK GRANT PROPOSALS

Washington, D.C. – Senate Finance Committee Ranking Member Ron Wyden, D-Ore., and all Democratic members of the Finance Committee today called on the Trump administration to end its harmful attacks on the Medicaid program, which provides essential health care to more than 70 million Americans. The letter comes ahead of the committee’s hearing on the president’s budget.

“This Administration in coordination with your Department has taken every opportunity to try to gut Medicaid and put critical health coverage for millions of vulnerable Americans on the chopping block,” the senators wrote. “It is time for the Trump Administration’s ongoing assault on the Medicaid program to end. The public has spoken loud and clear – Medicaid serves as a lifeline to millions of Americans and their loved ones, and they do not want to see it block granted, capped, or gutted.” 

Last month, the Trump administration announced new guidance for the Medicaid program that would hand states a playbook to implement block grants. In return for placing arbitrary funding caps on its Medicaid program, the state would get unprecedented authority to cut benefits and access to care, including prescription drugs, and further restrict coverage by charging unaffordable premiums and cost sharing, and implementing arbitrary paperwork requirements. This week, the Trump administration followed up to their illegal guidance with a budget that proposes to gut Medicaid by nearly $1 trillion, block grant and cap the program, and push their failed paperwork requirements on all states.

Such policies would lead to devastating cuts to Medicaid, jeopardizing affordable, comprehensive care for millions of Americans benefiting from the Medicaid expansion and endangering health care for millions more, including seniors and individuals with disabilities who rely on Medicaid for nursing and home-based care, children and individuals with complex needs who depend on Medicaid to get the help they deserve to stay and thrive in their communities and at school, those suffering from opioid use disorders who count on Medicaid to get the treatment they so desperately need, and individuals impacted by public health emergencies in need of critical care.

The full letter can be found here.

Joining Ranking Member Wyden on the letter are Sens. Debbie Stabenow, D-Mich., Maria Cantwell, D-Wa., Bob Menendez, D-N.J., Tom Carper. D-Del., Ben Cardin, D-Md., Sherrod Brown, D-Ohio, Michael Bennet, D-Colo., Bob Casey, D-Pa., Mark Warner, D-Va., Sheldon Whitehouse, D-R.I., Maggie Hassan, D-N.H., and Catherine Cortez-Masto, D-Nev.

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The US Constitution requires a census of all residents in the entire country every 10 years. The census counts every person living in the US once (and only once) in the right place. You are counted based on where you are living on April 1, 2020. Please encourage individuals that you serve to participate.

WHY IT IS IMPORTANT FOR ALL TO PARTICIPATE:

Fair representation & legislative redistricting

The Census determines:

  • How many seats PA has in the US House of Representatives
  • How US congressional and state legislative districts are redrawn

$675+ billion in federal public funding
The Census determines how much funding each state receives for the next 10 years.

Pennsylvania receives $26.8 billion each year
That’s $2,000 per Pennsylvanian

The data collected in the 2020 Census will impact the amount of federal funding our communities get for the next decade for programs like…

  • Medicare (Part B)
  • Medicaid
  • CHIP
  • WIC
  • Healthcare Centers

2020 Census will determine how much food support children, adults, and seniors receive…

  • SNAP
  • School Breakfast Program
  • National School Lunch Program
  • Children and Adult Care Food Program

2020 Census will determine how much we invest in the future of our children…

  • Federal Pell Grants
  • Federal Direct Student Loans
  • Title I Grants to Local Educational Agencies
  • Special Education Grants
  • Head Start

2020 Census will determine how much PA’s highways, railways, airports, and ports receive…

  • Highway Planning and Construction
  • Federal Transit Formula Grants
  • Federal Transit Capital Investment Grants

2020 Census will determine how much safe affordable housing will be available…

  • Very Low to Moderate Income Housing Loans
  • Section 8 Housing Choice Vouchers
  • Section 8 Housing Assistance Payments
  • Public and Indian Housing
  • Community Development Block Grant (CDBG) Entitlement Program
  • Public Housing Capital Fund

2020 Census determines how much funding rural areas receive for services and infrastructure…

  • Rural Electrification Loans and Loan Guarantees
  • Water and Waste Disposal Systems for Rural Communities
  • Rural Rental Assistance Payments
  • Business and Industry Loans
  • Cooperative Extension Services

2020 Census determines how much support our children and families receive…

  • TANF
  • Title IV-E Foster Care
  • Unemployment Insurance Administration
  • Adoption Assistance
  • Child Care Mandatory and Matching Funds

Your census responses can never be used against you. Under Title 13 of the US Code, the US Census Bureau cannot release any information about an individual. Your answers can only be used to produce statistics.

Census employees and contractors are sworn for life to always protect your information. Violators face fines up to $250,000 and up to five years in prison.

Your information is protected from cyber-attacks, threats, and leaks. The bureau’s cybersecurity meets the highest federal standards for system protection. Your information is protected no matter if you respond online, by phone, or by mail.

If you respond online, make sure the website address begins with HTTPS and includes a lock symbol.

Census workers will never ask for your SSN, banking information, money, or anything on behalf of a political party.

Real census workers carry identification. They will have an official ID badge with photo, a US Department of Commerce watermark, and an expiration date. You can call 800-923-8282 to verify a worker’s identity.

Report suspicious activity. Call your local police department if you receive a visitor falsely claiming to be representing the US Census Bureau.

April 1, 2020 is National Census Day

  • Participate in the census online, by mail, or by phone.
  • If you’re living in Pennsylvania on April 1, 2020, you are a resident.
  • Count every person living in your home on April 1, 2020.

Join in community outreach. Learn more and download resources at the official website.

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Last week, while RCPA held its Annual Conference at the Hershey Lodge, our colleagues at the Pennsylvania Chamber of Business and Industry (PA Chamber) informed us that the Federal Department of Labor submitted its final overtime rule. The PA Chamber stated the final overtime rule was published in the Friday, September 27 edition of the Federal Register. The highlights of the final rule are as follows:

  • Raises the salary threshold from the current $23,660 ($455/week) to $35,568 ($684/week);
  • Effective 1/1/2020;
  • No automatic updates or changes to the duties test;
  • Allows nondiscretionary bonuses, incentive payments, and commissions to satisfy up to 10 percent of the salary requirement; and
  • Increases the Highly Compensated Employees exemption threshold from $100,000 to $107,432 — though, as previously noted, this option is not available for employers in PA.

According to the PA Chamber, Pennsylvania employers generally accept the final overtime rule as a reasonable update to overtime regulations and employers are unlikely to challenge the final rule. Additionally, there have not been any updates on how the Pennsylvania Department of Labor and Industry will proceed with their overtime proposal.

Thanks again to our friends at the PA Chamber for keeping health and human service providers in the loop on this important issue. Please contact Jack Phillips, RCPA Director of Government Affairs, with questions.

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FOR IMMEDIATE RELEASE
(From DHS)

July 30, 2019

Medicaid’s 54th Anniversary Highlights Increased Healthcare Access for Pennsylvanians 

Harrisburg, PA – Today, Department of Human Services (DHS) Secretary Teresa Miller marked Medicaid’s 54th anniversary by highlighting the program’s success in expanding healthcare access to millions of Americans.

“Since its creation 54 years ago by President Johnson, Medicaid has had a direct and positive impact on the health of millions of Pennsylvanians for whom healthcare coverage would otherwise be unaffordable,” said Secretary Teresa Miller. “We are proud to mark today’s anniversary and the good work the people at DHS have done in implementing Medicaid and its expansion.”

Since 2015, about 1.4 million people – or one in 10 Pennsylvanians — have been covered at some point by Governor Tom Wolf’s expansion of Medicaid. As a result of Medicaid expansion, Pennsylvania has achieved its lowest uninsured rate on record and has reduced hospitals’ uncompensated care costs across the commonwealth by almost $330 million. Most importantly, Medicaid expansion has resulted in comprehensive healthcare access to more than 700,000 previously uninsured Pennsylvanians who now have the resources they need to focus on living a healthy, fulfilling life. In total, more than 2.8 million Pennsylvanians have access to healthcare through Medicaid.

The Wolf Administration remains committed to ensuring Medicaid remains accessible to any Pennsylvanian who may need it, including the 800,000 who could be negatively affected by Medicaid work requirements. One of DHS’ top priorities is increasing employment opportunities for those we serve, but work requirements are not an effective way of accomplishing this goal. Without meaningful workforce development supports and services, work requirements are just another obstacle to a higher quality of life. Tied to Medicaid, work requirements would achieve nothing but the denial of healthcare to people who need it.

“Our goal at DHS is to implement programs that empower Pennsylvanians to support themselves and their families,” said Secretary Miller. “Meeting a person’s health needs is one of the most important steps to helping them excel in education, training, and the workforce. The Wolf Administration is committed to the continued expansion of a healthcare system that advances services and supports to treat the whole person.”

For more information about Medicaid in Pennsylvania, click here.

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