COVID 19 IMPACT ON HEALTH CARE LIABILITY AND BUSINESS Presented by: - - PowerPoint PPT Presentation

COVID‐19 IMPACT ON HEALTH CARE LIABILITY AND BUSINESS

Presented by: Mark A. Fogg Jennifer R. Lake

In the Beginning

• Federal Health & Human Services March 17th Notice
• f Declaration under the Public Readiness and

Emergency Preparedness Act

• Qualified immunity for HC professionals & entities
• Applies to medical “covered countermeasures”
• Protections are product‐oriented
• Covered countermeasure patient comp fund
• May be limited to COVID‐19 patients only

Early Risk Management Counseling

• Document alterations in care delivery due to COVID‐

19 to maximize liability protections (e.g. telehealth was used because…)

• Still the first line of defense:

What is reasonable under the circumstances at the time?

Loosening of Telehealth Rules

• HHS Office of Civil Rights March 17th Notification
• Waiver of potential HIPAA penalties for good faith use
• f telehealth
• Can use any non‐public facing remote communication
• Applies to all patients, not Just COVID‐19
• CMS Reimbursement for telehealth visits by a physician

licensed in another state, Notification March 13

• Created massive confusion
• DEA exception on Ryan Haight Act re telehealth and

controlled substances

Volunteer Immunity

• Prior: Volunteer Protection Act and state statutes
• Hodgepodge of federal and state Laws
• New: CARES ACT Volunteer Immunity (Section 3215)
• Unpaid volunteer, limited to COVID‐19 patients,

qualified immunity, must be within scope of practice

• No liability under state or federal law, protection exists

during public health emergency

• Limited role of Good Samaritan statutes due to

requirements of no compensation and not in a health care facility

Delay of Elective and Non‐Essential Surgeries and Procedures

• Governors issue Executive Orders in almost all states
• rdering delay of electives to protect PPE
• Colorado‐ EO 2020‐009, March 23 – April 26:

All hospitals,

• utpatient

surgeries and procedure providers are directed to cease all elective and non‐ essential surgeries and procedures

Response: Executive Orders Liability Immunity

• Power to amend or modify statutes
• New York: Gov amends Good Samaritan statute
• Healthcare providers as state agents with state immunity

protections

• Michigan: HC as “Emergency Management Workers”
• Crisis Standards of Care
• Colorado: Governor’s Expert Emergency Epidemic

Response Committee (“GEEERC”)

• Adjusting best practices to best efforts

Response: Increased Flexibility in Telehealth, Licensing & Scope of Practice

• Flexibility in communication modalities (audio included

in telehealth definition)

• Ability to obtain temporary licenses, telehealth licenses,

expedited licenses, reactivate licenses

• Allowing out of state licensed physicians to practice

within a state

• Expand scope of practice and focus on education and skill

sets to allow practicing outside of traditional scope

GEEERC and Covid‐19

• Crisis Standards of Care that GEEERC created for

COVID‐19

• Emergency Medical Services
• Personal Protective Equipment
• Hospital, Including Crisis Triage
• Chief Medical Officer of CDPHE activated EMS and

PPE crisis standards of care, but not hospital crisis triage

Application of Colorado Liability Immunity for Health Care

• Providers that in “good faith comply completely” with Board
• f Health rules and Executive Orders shall be immune from

civil or criminal liability

• Potential Immunity:
• Delay of elective procedures mandated by Executive Order

and resumption of elective procedures in compliance with CO Public Health Order 20‐29

Resumption of Elective Surgeries and Procedures

• Suggested approach, resources, and special COVID‐19 consent

form posted on COPIC and Childs McCune websites:

• Collect and retain background data that it is a safe

environment to perform elective surgeries/procedures

• Create a patient education communication on elective

surgeries/procedures during the COVID‐19 pandemic

• Utilize a special consent form for electives
• CDPHE amended Public Health Order 20‐29 (July 24, 2020)
• PPE Reserves, adequate screening and testing, CDC

recommended infection control, face masks

Key Colorado Government Links

Governor Executive Orders:

• State of emergency (extended to Aug. 6):

https://drive.google.com/file/d/1Wpn4DIw1GzOFcA6hxzTnz 3ksFkF3lmja/view

• Easing of telehealth restrictions (extended to July 27):

https://drive.google.com/file/d/1f0gSxY6JlClCwpofNYCtF_W BQ_Hjbk9t/view

• Opening up scope of practice restrictions (extended to July

12): https://drive.google.com/file/d/1VzMwH2ChLGczFVVZTSMqt No7GqUguN‐5/view

Key Colorado Government Links

Elective and non‐essential surgeries and procedures:

• Cease

and Desist Order (in effect until April 27): https://drive.google.com/file/d/15PDjUCnUpR‐ yet99q6NbPAWh52TUWoo0/view

• CDPHE Order on limited recommencement of elective

surgeries and procedures (extended to July 24): https://drive.google.com/file/d/1BhAXUL0U5j0Qp9g2qPRjZaF xp4o‐g5Hi/view

• Public Health Order on hospital data reporting for COVID‐19

(in effect until Aug. 31): https://drive.google.com/file/d/1wa_‐ A0Y2kOZeJJkpq0ZjO7rXuA1CDv‐o/view

American Society of Clinical Oncology: A Guide to Cancer Care Delivery During the COVID‐19 Pandemic

• Before patient arrival
• Patient arrival
• Patient investigation for

COVID‐19

• COVID positive criteria

for infusion services

• COVID diagnostic

testing

• Pre‐screening of

asymptomatic patients with cancer

• Testing policies for HC

personnel

• PPE
• Screening of work force
• Tools for HC well‐being

and mental health

• Resources and supplies
• Social distancing in

clinical areas

• Location services/hours
• f operation
• Surge planning
• Sanitation protocols
• Support services
• Patient health and

safety education

• Telemedicine
• Medical oncology
• Radiation oncology
• Ancillary services
• Cancer screening
• Cancer surgeries
• Clinical trials

https://www.asco.org/site s/new‐ www.asco.org/files/conte nt‐files/2020‐ASCO‐Guide‐ Cancer‐COVID19.pdf

COVID‐19: Future HC COVID‐19 Cases?

• National Plaintiff Firms – Large population centers
• Inadequate infection

control

• Inadequate

supplies

• Nursing homes
• Licensing Cases
• Kansas Board

statement that COVID‐19 issues are mitigating factors

CARES Act

• Coronavirus Aid, Relief, and Economic Security Act
• Created the HHS Provider Relief Fund
• Gave Secretary of HHS broad waiver authority with

respect to Medicare rules and restrictions

• Created a variety of business assistance programs

HHS Provider Relief Fund

• $50 billion allocated to hospitals and physician practices:
• Initial $30 billion distributed based on share of

Medicare fee‐for‐service reimbursements in 2019

• Additional $20 billion distributed based on net patient

revenue

• Upon receipt of funds, providers must sign terms and

conditions

• Must document use of funds

HHS Provider Relief Fund

• Targeted distributions available for:
• Treatment of uninsured COVID‐19 patients
• Participants in state Medicaid program
• Must submit revenue information to HHS by

July 20

CARES Act Reimbursement Provisions

• High deductible plan can still qualify as high

deductible even if no deductible is charged for telehealth services

• Broad range of changes to Medicare policies
• CMS waived requirement that hospitalized Medicare

patients be under the care of a physician

• CMS waived requirements to allow physicians whose

privileges will expire and new physicians to be able to practice at hospital before full review and approval

Medicare Telehealth Changes

• Wide

variety

• f

services can be provided by telehealth and by audio‐only communication

• Emergency visits
• Outpatient therapy and educational services
• Radiation treatment management services
• Hospitals can receive payment for originating site

facility fee when practitioner that ordinarily practices in

• utpatient

department provides telehealth services to a patient at their home

Colorado Return‐to‐Work Guidance

• Colorado Public Health Order 20‐29 – must have a

plan to implement

• Follow CDC infection control policies
• Universal symptom screening process
• Non‐medical personnel must wear masks in medical

facilities

• If masks are removed (e.g. breaks), staff must remain

six feet apart from each other

• Reassess operations every 2 weeks

Colorado Return‐to‐Work Guidance

• If employee reports symptoms, must be sent home

immediately

• Employee must stay home until: (a) 10 days have

passed since first symptoms and (b) fever‐free and no medication for 72 hours

• https://www.cdc.gov/coronavirus/2019‐

ncov/hcp/guidance‐risk‐assesment‐hcp.html

• Must

contact health department if multiple employees exhibit symptoms

Sample ASCO Guidance

• Reduce number of staff by allowing telework for

scheduling, billing, and phone‐based staff

• Identify separate staff for care of COVID‐19‐positive

patients

• Modify duties for staff with increased vulnerability
• Provide training on infection control and cleaning
• Encourage employees to avoid non‐essential personal

travel

• Offer support and stress management resources

Employee COVID‐19 Exposure

• Workers’ compensation is exclusive remedy
• Must prove that infection arose out of or in course
• f employment
• Some states have changed this burden for COVID‐

19 cases

• Pinnacol

Assurance is

• ffering

wage replacement for quarantined first responders and healthcare employees, as well as other benefits

Employee COVID‐19 Exposure

• OSHA is requiring that employers make a work‐

relatedness determination for employee COVID‐ 19 cases

• Work‐relatedness

is presumed for illnesses resulting from exposures occurring at work

• Recordable event
• OSHA is increasing inspections

Paycheck Protection Program

• Forgivable loans for businesses with fewer than 500

employees

• Must certify in good faith that:
• Applicant is eligible for the loan
• Funds will be used for payroll,

mortgage interest payments, lease and utility payments

• “[c]urrent economic uncertainty makes this loan

request necessary to support the ongoing operations

• f the Applicant.”

Additional Financial Assistance

• Economic Injury Disaster Loans – based on

actual economic injury up to $2 million

• SBA Debt Relief – payment of 6 months of

principal, interest, and associated fees that borrowers owe for 7(a), 504, and Microloans disbursed before September 27, 2020

• Main Street Lending Program – 3 loan types

with varying terms. Available soon.

Tax Relief

• Employee retention credit
• If business operations were fully or partially

suspended, or gross receipts declined by more than 50% compared to same quarter last year

• Payroll tax deferral
• Can defer certain payroll taxes until the end of

2020

• Deferred amounts due in two installments, due at

the end of 2021 and 2022