REOPENING GEORGIA – ADVICE FROM A HEALTH CARE ATTORNEY€¦ · CMS Issued Emergency Waivers—Telemedicine On April 9, 2020, CMS issued emergency waivers to help providers contain

REOPENING GEORGIA – ADVICE FROM A HEALTH CARE ATTORNEY

Georgia Academy of Family Physicians—WebinarTuesday, April 28, 2020

6:00pm EST

Sarah Benator, JD, MPHPartner/AttorneySouthern Health Lawyers, LLC

Disclosure Statement:Ms. Benator has no financial relationship with any commercial interests to disclose.

Richard D. Sanders, Esq.Partner/AttorneySouthern Health Lawyers, LLC

Disclosure Statement:Mr. Sanders has no financial relationship with any commercial interests to disclose. .

FACULTY EDUCATORS

New Federal PPP FundsHIPAA & Telemedicine Waivers

Families First Coronavirus Response ActThe CARES Act

Forecasting Reopening

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New Federal PPP Funds

■ Congress passed a legislative package last week that approved anadditional $310 billion in funding for the Paycheck Protection Program(PPP).

■ The initial $349 billion in PPP funding was exhausted on Thursday, April 16,2020.

■ The legislative package also includes $75 billion in aid for hospitals, $60billion for the Small Business Administration’s Economic Injury DisasterLoan Program and $25 billion to expand virus testing across the UnitedStates.

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Limited Waiver – HIPAA & Telemedicine ■ In mid-March 2020, OCR announced it will not be imposing penalties for providers who

use communication devices or other technologies that do not meet HIPAA’s requirementsin order to treat patients via telemedicine.

■ OCR is now permitting covered health care providers to use any remote communicationdevices or platforms to provide good-faith telehealth services.

– These telehealth services can be for any type of health care service, whether related to COVID-19 or not.

■ The only limitation on the type of communication technology is that it must be “non-public facing,” meaning that it cannot share the patient’s information publicly.

– For example, a covered health care provider could not publicly respond to a patienton Twitter, but Facebook Messenger’s video chat, or other commonly usedapplications for private video communication, like FaceTime or Skype are nowacceptable.

■ OCR recommends that covered health care providers alert patients of the privacy andsecurity risks and take precautions where possible, if innovative telemedicine platformsare utilized.

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CMS Issued Emergency Waivers—Telemedicine

■ On April 9, 2020, CMS issued emergency waivers to help providers contain thespread of COVID-19.

■ Among these waivers is CMS's temporary waiver of requirements that out-of-state practitioners be licensed in the state where they are providingservices. These licensing requirements will be waived when the followingconditions are met by the physician or non-physician practitioner:

1. Must be enrolled in the Medicare program;2. Must have a valid license in the state that relates to Medicare enrollment;3. Is furnishing services in a state where emergency is occurring; and4. Is not affirmatively excluded from practice in the state.

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CMS Emergency Waivers Caveat

■ There is a caveat. In order for the physician or non-physician practitioner toavail him- or herself of the CMS waivers under the conditions described onthe previous slides, the state also has to waive its licensure requirements,either individually or categorically, for the type of practice for which thephysician or non-physician practitioner is licensed in his or her home state.

■ These vary by state. Georgia, for example, has a waiver, but out of statepractitioners must apply for an emergency practice permit. Tennessee, on theother hand, has a blanket waiver requiring no special permit.

■ For a full analysis of these waivers by state, please click here:https://www.fsmb.org/siteassets/advocacy/pdf/states-waiving-licensure-requirements-for-telehealth-in-response-to-covid-19.pdf.

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CMS Telemedicine Waivers—Location of Services

■ Providers can now render telehealth services to Medicare beneficiaries in their home.

■ Under normal circumstances, Medicare will cover telehealth services for a beneficiaryonly if the beneficiary is located at a certain originating site of care (e.g., in a medicalfacility) in a qualifying rural area and received the telehealth services at such originatingsite of care or in other limited circumstances.

■ Because of the public health emergency, CMS has expanded coverage and reimbursementfor telehealth services (now rendered on or after March 1), by no longer limiting theavailability of Medicare telehealth services to patients in rural settings and waiving the“eligible originating site” requirement.

■ Therefore, telehealth services can now be provided in all care settings, including for apatient receiving care at home, for the duration of the public health emergency.

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CMS Telemedicine Waivers—New Patients

■ Providers no longer need an established relationship with a patient to render telehealthservices.

■ Previously, a Medicare beneficiary was eligible for reimbursable telehealth services underthis expanded waiver only if the beneficiary received a Medicare-paid service fromsomeone in the provider’s practice in the last three years; however, Congress relaxed thisthree-year requirement in the CARES Act.

■ Consequently, providers may provide telehealth services to both existing and newpatients.

■ Absent modifications to state law, state licensure laws that require an establishedprovider-patient relationship prior to the provision of telehealth services.

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CMS Telemedicine Waivers—Controlled Substances■ The Controlled Substances Act permits a practitioner to prescribe controlled

substances (including e-prescriptions issued via telemedicine) to an individual onlyafter the practitioner has conducted an in-person evaluation.

■ The DEA declared practitioners may issue prescriptions for controlled substances topatients via telemedicine (even for patients for whom they have not conducted an in-person medical evaluation) only during the COVID-19 outbreak, provided: (1) theprescription is issued for a legitimate medical purpose; (2) the telemedicinecommunication is conducted using an audiovisual, real-time, two-way interactivecommunication system; and (3) the practitioner is acting in accordance with applicablefederal and state laws.

– Again, many states have their own rules and regulations regarding in-person orface-to-face evaluations in connection with prescriptions of controlled substances.Therefore, it is important to review applicable GCMB rules prior to prescribingcontrolled substances.

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Families First Coronavirus Response Act■ The Families First Coronavirus Response Act (FFCRA) signed into law on March 18,

2020, set to take effect on April 1, 2020 and will continue to December 31, 2020.

■ Two key aspects of the FFCRA regarding leave for employees and paid benefits: (1) the Emergency Family and Medical Leave Expansion Act (Emergency FMLA), and (2) the Emergency Paid Sick Leave Act (EPSLA).

■ The Emergency FMLA portion of the FFCRA compels employers with fewer than 500 employees to provide paid family leave to employees with 30 days or more of tenure, who are unable to work or telework due to childcare needs triggered by COVID-19.

■ The EPSLA calls for paid sick leave to all employees, regardless of tenure, who are unable to work because of government shelter in place orders, COVID-19-related illness and several other circumstances triggered by the pandemic.

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Eligibility—Emergency FMLA

■ The FFCRA temporarily amends the Family and Medical Leave Act of1993 (FMLA) to allow eligible employees to take FMLA for "a qualifyingneed related to a public health emergency.”

■ Employees of covered employers are eligible for leave and benefitsunder Emergency FMLA if they have been employed with their employerfor at least 30 calendar days (which encompasses more employees thanother sections of the FMLA, which only require 1,250 or more hours ofservice in the past 12-month period).

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Qualifying Reasons—Emergency FMLA■ The public health emergency leave created by the FFCRA is available if an

employee is unable to work (or telework) because of a need to care for a "sonor daughter under 18 years of age” and the child’s school or place of care isclosed or a childcare provider is unavailable due to a public health emergency.

– This is the only qualifying need for public health emergency leave.

■ Therefore, if an employee can still work remotely or is not caring for aqualifying child, they are not eligible for public health emergency leave.

■ Under the FMLA, "son or daughter" is defined as "a biological, adopted, orfoster child, a stepchild, a legal ward, or a child of a person standing in locoparentis who is either under 18 years of age or is 18 years of age or older andincapable of self-care because of a mental or physical disability."

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Compensation—Emergency FMLA■ The first 10 days of Emergency FMLA will be unpaid. Employees may elect to

substitute accrued but unused vacation, personal, medical or sick leavebenefits (if applicable).

■ All subsequent Emergency FMLA (potentially up to the remaining 10 weeks ofpermitted leave) must be paid by the employer. The paid portion of such leavemust be in an amount no less than two-thirds of the employee's regular rate,up to $200 per day and $10,000 in the aggregate. The weekly pay amounts areto be calculated based on employees’ weekly schedules.

■ For employees who have worked for less than six months prior to takingEmergency FMLA, the remaining time must be paid based on the employee’sreasonable expectation at hiring of the average number of hours theemployee would normally be scheduled to work.

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■ Employers with 25 or more employees will have the same obligation as under traditional FMLA to return any employee who has taken public health emergency leave to the same or equivalent position upon return to work.

■ Employers with fewer than 25 employees need not restore employees to their prior, or an equivalent, position if all the following conditions are met:

1. The employee took public health emergency leave;2. The position no longer exists due to changes in employers' economic or operating

conditions that affect employment and are caused by the public health emergency duringthe period of leave;

3. The employer made reasonable efforts to restore the employee to an equivalent positionwith equivalent benefits, pay and other terms and conditions of employment; and

4. After failing to find an equivalent position, the employer contacts the employee if anequivalent position becomes available during the "contact period," which is the earlier ofthe date on which the public health emergency leave concludes and the date that is 12weeks after such leave began.

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Job Protections—Emergency FMLA

Eligibility—Emergency Paid Sick Leave Act

■ Unlike Emergency FMLA, paid sick time under the EPSLA isavailable for immediate use by employees of coveredemployers, regardless of how long the employee has beenemployed.

■ In addition, the EPSLA uses the Fair Labor Standards Act’s(FLSA) expansive definition of "employee," which includespart-time and temporary employees.

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Qualifying Uses—Emergency Paid Sick Leave Act

■ The EPSLA allows a full-time employee to take up to 80 hours of paidsick leave, paid at the employee’s regular rate, when the employee is:– Subject to a federal, state or local quarantine or isolation order

related to COVID-19;– Advised by a health care provider to self-quarantine due to COVID-19

concerns; and/or– Experiencing COVID-19 symptoms and seeking medical diagnosis.

■ Emergency paid sick leave wages taken pursuant to the above-describedconditions, are capped at $511 per day, up to $5,111 in the aggregate,per full-time employee.

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Qualifying Uses—Emergency Paid Sick Leave Act■ By contrast, an eligible employee can only earn up to $200 per day – or a

maximum of up $2,000 for their 10 days of paid sick leave – if any of theother qualifying uses apply:– The employee is caring for a family member who is subject to a

federal, state or local quarantine or isolation order, or advised by ahealthcare provider to self-quarantine, due to COVID-19;

– The employee is caring for their child due to a COVID-19-relatedschool/childcare provider closure; or

– The employee is "experiencing any other substantially similarcondition" specified by the Secretaries of the Department of Healthand Human Services, Treasury Department and Department ofLabor.

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Requesting Leave, Notice Requirement—Emergency Paid Sick Leave Act

■ Employers can require employees to follow reasonable notice procedures to receivepaid sick leave under the EPSLA.

■ All employers must conspicuously post a notice regarding the requirements of theEPLSA in physical work locations.

■ There is no requirement to maintain a handbook policy or actively notify employeeswho are working remotely. However, the U.S. Department of Labor recommends thatemployers consider electronically distributing the requirements of the EPLSA if theemployer is not posting it in physical workspaces due to office closures.

■ Finally, an employer may not change its current paid leave policy after enactment, toavoid the obligations of the additional leave mandated by the EPSLA.

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Tax Credits■ The FFCRA provides a series of quarterly payroll tax credits for employers

who are required to provide the public health emergency leave and paidsick leave, which are allowed against the employer portion of the SocialSecurity taxes.

■ Only employers who are required to offer Emergency FMLA and paid sickleave will qualify for these credits.

■ Employers are entitled to a refundable tax credit equal to 100% of thequalified public health emergency leave wages paid by employers foreach calendar quarter, capped at $200 per day, for each individual, up to$10,000 per calendar quarter.

■ Employers are entitled to a refundable tax credit equal to 100% of thequalified emergency sick leave wages paid by employers for eachcalendar quarter.

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The Coronavirus Aid, Relief and Economic Security Act of 2020 (CARES Act)

■ The Coronavirus Aid, Relief and Economic Security Act of 2020 (CARES Act)signed into law on March 27, 2020, includes provisions designed to providerelief for both businesses and individuals financially impacted by COVID-19.

■ Key aspects of the CARES Act for Employers include:– Paycheck Protection Program,– Payroll Tax Credit,– Payroll Tax Deferment,– Net Operating Loss Carrybacks,– Minimum Tax Credit, and– Deductibility of Business Expenses.

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Payroll Protection Program (PPP)■ Paycheck Protection Program (PPP) is a loan program under the Small

Business Administration (SBA) permitting lenders to issue SBA 7(a) smallbusiness loans up to a cap of $10 million or 2.5 times the business’average monthly payroll costs over the previous year of the business tobusinesses with fewer than 500 employees.

■ PPP began on April 3, 2020 and the initial $349 billion in funding wasexhausted on Thursday, April 16, 2020; relaunched on Monday, April 27,2020 with an additional $310 billion in funding.– If PPP funding has not been obtained, we recommend GAFP

Members encourage their employers to apply for PPP funding assoon as possible because of administrative delays associated withimplementation of the program.

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Definition of Payroll Costs under PPP■ Payroll costs include:

■ Salaries, wages, commissions, or similar compensation to an employee;■ Payment of cash tip or equivalent;■ Payment for vacation, parental, family medical or sick leave not associated with COVID-19;■ Severance payments for dismissal or separation;■ Payment for group healthcare benefits including insurance premiums;■ Payment of any retirement plan contributions; and■ Payment of state and local taxes assessed on the compensation of employees.

■ Payroll costs do NOT include: ■ Compensation of an individual employee over $100,000/year or $8,333.33/month;■ FICA and Federal tax withholdings;■ Compensation for non-US residents; and■ Sick leave and family leave provided by the Families First Coronavirus Response Act.

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Allowable Uses of PPP Funds■ PPP funds can be used to cover:

■ Payroll costs (see definition on previous page);■ Group health insurance premium or other healthcare costs;■ Salaries and/or commissions;■ Rent;■ Mortgage interest (excludes pre-paid amounts);■ Utilities; and■ Other business interest incurred prior to February 15, 2020.

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PPP Loan Forgiveness Eligibility Requirements■ Who is eligible for forgiveness?

– Businesses must keep the same number of employees fromFebruary 15, 2020 through June 30, 2020** that were on itspayroll from January 1, 2020 through February 14, 2020. If thisrequirement is not met, the loan forgiveness is reduced on apro-rata basis.

– Additional loan forgiveness reductions apply if employees withcompensation under $100,000 have their compensation cut bymore than 25% when compared to the most recent quarter.Any debt forgiven is not included in taxable income.

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PPP Loan Forgiveness Continued■ How does loan forgiveness work?

– Amount of loan eligible for forgiveness is amount spent during the first 8 weeks after loan ismade on the following items:

– Payroll costs, excluding amounts for individuals with compensation greater than$100,000,

– Rent due to a lease in force prior to February 15, 2020,– Electricity, gas, water, transportation, phone and/or internet access for services which

began before February 15, 2020, and– Group health insurance premiums and other healthcare costs.

– Forgiveness is predicated on employer maintaining the same number of full-time equivalentemployees from February 15, 2019 to June 30, 2019 as during the period of January 1, 2020 toFebruary 29, 2020.

■ How is repayment treated?– The maximum interest rate on these loans is 1%.– The maximum duration of these loan is 2 years.– Payments will be deferred no less than 6 months and no more than one year.

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The CARES ACT—Additional Financial Assistance Provisions■ Payroll Tax Credit

– Employee Retention Credit is available to businesses forced to reduce hours or services, or close altogether, for the purpose of discouraging further layoffs.

– Who is eligible for tax credit?■ Companies that have had to fully or partially suspend business operations

due to governmental intervention because of COVID-19. ■ Companies whose revenue in 2020 was less than 50% of revenues from

the same quarter in 2019.■ Payroll Tax Deferment

– Employers are eligible to defer payroll taxes from March 27, 2020 through December 31, 2020

■ NOTE: These provisions are not available to businesses that participate in the SBA loan forgiveness program.

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Forecasting Reopening■ Georgia’s statewide shelter-in-place order is set to expire Thursday, April 30.

■ Governor Kemp signed an Executive Order on Monday, April 20, 2020 toinitiate the process of re-opening businesses throughout Georgia.

– Gyms, fitness centers, bowling alleys, tattoo parlors, barbershops,cosmetologists, hair designers, nail salons, estheticians, massagetherapists and schools for those trades would be allowed to reopenFriday, April 24.

– Dine-in restaurants and movie theaters allowed to reopen Monday,April 27 "subject to specific social distancing & sanitation mandates."

■ A subsequent Executive Order was issued by Governor Kemp on Thursday,April 23, 2020, providing further guidance on the process for reopening.

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Forecasting Reopening Continued■ Governor Kemp’s Executive Orders explicitly provide that that no

local ordinance can restrict the planned reopening of businesses,which will be implemented statewide.

■ Governor Kemp has also indicated he is unlikely to extend thestatewide shelter-in-place order after it expires at the end of thismonth.

■ Seniors and people with chronic health issues still urged tocontinue staying home until at least through Wednesday, May 13,2020 when Georgia’s public health emergency is set to expire.

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Forecasting Reopening Continued■ Relevant to GAFP Members, the Executive Orders encourage all healthcare

businesses to reopen and begin treating patients as soon as practicableincluding medical practices, dental practices, orthodontics practices, optometrypractices, ambulatory surgical centers, physicians performing elective surgeries,healthcare institutions, medical facilities, any other healthcare-related facilitythat elected to cease operations because of COVID-19.

■ The Executive Orders require that healthcare businesses conducting in-personoperations to implement measures to mitigate the exposure and spread ofCOVID-19.

■ Specifically, the Executive Orders set forth seventeen (17) health and safetymeasures applicable to healthcare businesses.

– It is not clear whether the listed seventeen (17) health and safety measuresare strict requirements or suggestions.

– The most conservative approach is for healthcare businesses to treat theapplicable seventeen (17) health and safety measures as requirements.

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Forecasting Reopening Continued■ Highlights of the applicable health and safety measures include:

– Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;

– Requiring workers who exhibit signs of illness to go home if working and not report to work or to seek medical attention;

– Enhancing sanitation of the workplace, as appropriate;– Requiring hand washing or sanitation by workers at appropriate places within the

business location;– Providing PPE as available and appropriate to the function and location of the

worker within the business location;– Discouraging workers from using other workers' desks, offices, or other work tools

and equipment; and– Prohibiting handshaking and other unnecessary person-to-person contact in the

workplace.

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Forecasting Reopening Continued■ The CDC has also developed interim guidance for businesses and employers to reduce

transmission and prepare for potential consequences related to the spread of theCOVID-19.

■ The health and safety measures required by Governor Kemp’s Executive Orders largelymirror the CDC interim guidance. For example, the CDC interim guidance recommendsthat all employees should:

– Wash their hands often with soap and water for at least 20 seconds. If soap and water are not available, use an alcohol-based hand sanitizer;

– Avoid touching your eyes, nose, and mouth with unwashed hands;– Refrain from shaking hands with others for the time being;– Cover their cough or sneeze with a tissue, then throw the tissue in the trash;– Clean and disinfect frequently touched objects and surfaces.

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Forecasting Reopening Continued■ Other recommended precautions to minimize the risk of inadvertent transmission of COVID-

19 applicable to GAFP Members include:– Placing appropriate signage on the front doors of a practice, at the front desk and at

key locations throughout (such as elevators) to provide patients with instructions as toappropriate hand hygiene and social distancing etiquette;

– Institute and train personnel on patient triage and screening protocols for every patientthat enters the practice;

– Identify a separate, well-ventilated space that allows waiting patients to be separatedby six or more feet, with easy access to hygiene supplies;

– Allowing patients to wait in a personal vehicle or outside the practice's facility wherethey can be contacted by mobile phone when it is their turn to be treated;

– Promptly and properly disinfect all waiting and treatment rooms. Ensure that cleaningstaff are following consistent and correct cleaning and disinfection procedures (such asusing an EPA-registered, hospital-grade disinfectant with an emerging viral pathogensclaim).

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Questions?

Richard Sanders, Esq.Southern Health Lawyers, [email protected](404) 806-5575

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