Title III – Supporting America’s Health Care System in the Fight Against Coronavirus, Subtitle D – Finance Provisions

Early in the morning on Thursday, March 26, 2020, the Senate passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”).  On Friday, March 27, 2020, the House of Representatives also passed the CARES Act and  President Trump quickly signed it into law the same day.

In this continuing series of blogs by lawyers at Forrest Firm, P.C., we will examine the most important, relevant, and impactful provisions of the CARES Act.  Our goal is not to provide you with a granular level examination of each provision of the CARES Act, but rather to provide a macro view of the CARES Act in clear, concise, and understandable language that will enable readers to move forward with their businesses and lives with confidence.  These are trying times, and here at Forrest Firm we want these articles to support our clients, positively impact our communities, and be available to help you with questions and concerns raised by the CARES Act.

This Subtitle of the CARES Act addresses telehealth, home and community-based care as reimbursable expenses under health insurance regulations, health insurance regulations pertaining to insurance plan coverage, qualified medical expenses, reimbursement and payment rates, prescription drug plans, and other insurance provisions affected by the pandemic.

Exemption for Telehealth Services.  Section 3701 of the CARES Act adds a safe harbor to the Internal Revenue Code to insure that high deductible health plans which, prior to the coronavirus emergency did not have a deductible for telehealth and other remote care services, may still be treated as high deductible health plans.

Inclusion of Certain Over-the-Counter Medical Products As Qualified Medical Expenses.  Section 3702 of the CARES Act amends the Internal Revenue Code definition of “qualified medical expenses” for health savings accounts, Archer Medical Savings Accounts, and flex reimbursement plans to include “menstrual care products,” meaning “a tampon, pad, liner, cup, sponge, or similar product used by individuals”  [Author: presumably these individuals are women].

Increasing Medicare Telehealth Flexibilities During Emergency Period.  Section 3703 of the CARES Act removed limitations on the Department of Health and Human Services’ ability to temporarily waive or modify the application of portions of the Social Security Act which provided reimbursements for telehealth services provided in any emergency area during an emergency period.

Enhancing Medicare Telehealth Services for Federally Qualified Health Centers and Rural Health Clinics During Emergency Period.  Section 3704 of the CARES Act adds a provision to the Social Security Act enhancing payment rates for telehealth services furnished via a telecommunications system by a federally qualified health center or rural health clinic during an “emergency period” to rates similar to the national average payment rates for comparable telehealth services under the physician fee schedule under section 1848, even if the federally qualified health center or rural health clinic providing the telehealth service is not at the same location as the beneficiary.

Temporary Waiver of Requirement for Face-to-Face Visits Between Home Dialysis Patients and Physicians.  Section 3705 of the CARES Act allows for the waiver of the requirement of periodic face-to-face visits between individuals with end stage renal disease receiving home dialysis and their physicians.

Use of Telehealth to Conduct Face-To-Face Encounter Prior to Recertification Of Eligibility for Hospice Care During Emergency Period.  Section 3706 of the CARES Act waives the requirement that a hospice physician or hospice nurse practitioner conduct an in-person examination to determine recertification for continued eligibility for hospice care during the coronavirus emergency, instead allowing for a face-to-face encounter via telehealth.

Encouraging Use of telecommunications systems for Home Health Services Furnished During Emergency Period.  Section 3707 of the CARES Act requires the Department of Health and Human Services to consider ways to encourage the use of telecommunications systems to provide home health services for remote patient monitoring.

Improving Care Planning for Medicare Home Health Services.  Section 3708 of the CARES Actcertain Medicare sections to allow for the reimbursement for services of nurse practitioners, clinical nurse specialists, and physician assistants that provide home health services, instead of limited reimbursement to physician services.

Adjustment of Sequestration.  Section 3709 of the CARES Act temporarily suspends most Medicare  sequestration  (across the board spending reductions) from May 1, 2020 to December 31, 2020.

Medicare Hospital Inpatient Prospective Payment System Add-On Payment for COVID–19 Patients During Emergency Period.  Section 3710 of the CARES Act provides relief to hospitals by increasing the weighting factor for each diagnosis-related group under the Medicare inpatient prospective payment system by 20% for discharges during the emergency period with a primary or secondary diagnosis of the coronavirus.  Since reimbursement rates to hospitals for care provided by the hospital are usually a factor of hospital resources used with respect to discharges for certain groups when compared to other groups, this provision means that the treatment of coronavirus patients will not negatively impact a hospital’s reimbursement rate.

Increasing Access to Post-Acute Care During Emergency Period.  Section 3711 of the CARES Act waives the Medicare requirement of (i) three hours of therapy per day at least 5 days per week, or (ii) 14 hours of intensive rehabilitation therapy within a seven-day period, for inpatient rehabilitation facilities during the coronavirus emergency.  Further, for long-term care hospitals furnishing services during the coronavirus emergency, the Department of Heath and Human Services waives  (1) the “50-percent rule” requiring adjusted payments for long-term care hospitals that do not have a discharge payment percentage of at least 50% for the applicable period; and (2) site-neutral payment rate for a discharge if the admission occurs during the emergency period. 

Revising Payment Rates for Durable Medical Equipment Under the Medicare Program Through Duration of Emergency Period.  Section 3712 of the CARES Act prevents scheduled decreases in payment amounts for durable medical equipment by (2) extending the transition period for rural and non-contiguous areas through the longer of December 31, 2020 or the end of the coronavirus emergency; and (2) for all other areas, extends the transition payment amount through the duration of the coronavirus emergency period and reduces the adjusted payment amount from 100% to 75%, instead of 50%.

Coverage of the COVID-19 Vaccine Under Part B of the Medicare Program Without Any Cost-Sharing.  Section 3713 of the CARES Act expands Medicare reimbursement to include a coronavirus vaccine to insure that, when a vaccine becomes available for the coronavirus, Medicare will not charge a deductible for it.

Requiring Medicare Prescription Drug Plans and MA–PD Plans to Allow During the COVID-19 Emergency Period for Fills and Refills of Covered part D Drugs for Up to a 3-Month Supply.  Section 3714 of the CARES Act provides that, during the coronavirus emergency, prescription drugs under Medicare and a MA-PD plan will permit a fill and refill of Part D drugs in three month supplies.

Providing Home and Community-Based Services in Acute Care Hospitals.  Section 3715 of the CARES Act expands the prohibition on the Department of Health and Human Services from limiting the amount of payments under a plan for home and community-based services, in addition to a similar prohibition related to previously listed self-directed personal assistance services, or home and community-based attendant services, even if the services are provided in an acute care hospital.

Clarification Regarding Uninsured Individuals.  Section 3716 of the CARES Act amends the Families First Coronavirus Recovery Act provision that defined “uninsured individual” to ensure certain uninsured individuals may seek certain care in States in which they are not residing

Clarification Regarding Coverage of COVID-19 Testing Products.  Section 3717 of the CARES Act amends the Families First Coronavirus Recovery Act provision which provides medical assistance payments under certain conditions to remove the requirement that in-vitro diagnostic products administered are approved, cleared, or authorized under sections 510(k), 513, 514, or 564 of the Federal Food, Drug, and Cosmetic Act.

Amendments Relating to Reporting Requirements with Respect to Clinical Diagnostic Laboratory Tests.  Section 3718 of the CARES Act extends reporting periods for laboratory tests by one year and provides that no reduction in payments will occur in 2021.

Expansion of the Medicare Hospital Accelerated Payment Program During the COVID-19 Public Health Emergency.  Section 3719 of the CARES Act requires that the Department of Health and Human Services expand the accelerated payment program to hospitals with significant cash flow problems during the coronavirus emergency.

Delaying Requirements for Enhanced FMAP to Enable State Legislation Necessary for Compliance.  Section 3720 of the CARES Act allows state to receive a temporary increase of the Medicaid Federal Medical Assistance Percentage which was authorized under the Families First Coronavirus Recovery Act, even though premiums may not be imposed on beneficiaries for 30 days.

If you have any questions, please do not hesitate to contact Brian Bernhardt for more information.