Expanding the Use of Telehealth Amid the Coronavirus Pandemic
The coronavirus outbreak has generated a frenzy of activity related to telehealth as a method of triaging and treating those who are infected, as well as an alternative source of treatment for high-risk patients. Given that coronavirus symptoms can vary from very mild to severe and that the virus spreads through close contact, telehealth can be a powerful tool in combating the crisis. Healthcare providers, supported by states and payers, can leverage telehealth in ways not possible in previous epidemics to triage, diagnose and treat patients, while effectively protecting healthcare workers and reducing the spread of the disease. States, which have broad authority as payers, regulators and stewards of public health, can play a key role in driving the use of telehealth as a method of treatment by implementing reimbursement policies that enable providers to offer virtual care services to patients.
How Manatt Can Help: With extensive experience in the telehealth space, Manatt can assist states, payers and providers in quickly identifying and addressing any barriers to the rapid scaling of telehealth triage and treatment capabilities, as well as in supporting effective implementation strategies.
For More Information: Contact Jared Augenstein, director, Manatt Health, at firstname.lastname@example.org or 212.790.4597.
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Addressing the Added COVID-19 Challenges That Long-Term Care Faces
The epicenter of the COVID-19 pandemic in America is a nursing facility in Washington State. Today more than 1.4 million Americans reside in the nation’s 15,600 nursing facilities (CDC Center for Health Statistics, 2016), and millions more live in other congregate care settings. These seniors and other medically fragile individuals who require long-term care (LTC) support are at the highest risk of experiencing severe cases if they contract COVID-19.
Roughly 62% of nursing home care is paid by Medicaid (Kaiser, 2018). Another 10 million vulnerable Americans who need assistance with daily care or personal routine needs receive care in their homes and communities, with Medicaid as the primary payer. Given these statistics, state Medicaid programs are at the forefront of efforts to help contain and mitigate the spread of the virus.
How Manatt Can Help: Manatt stands poised to help states, health plans and providers enhance access to telemedicine in an effort to minimize face-to-face interactions and reduce risk for both LTC recipients and providers. Manatt also can help ease regulatory barriers that may inhibit access to public coverage of critical benefits, as well as provide reimbursement training and other services to support an already overworked formal and informal LTC workforce.
For More Information: Contact Stephanie Anthony, senior advisor, Manatt Health, at email@example.com or 212.7904505.
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Navigating the COVID-19 Pandemic’s Impact on Employers
The coronavirus pandemic presents unique concerns for employers as they navigate and plan for its impact on business operations. While different industries will be affected in different ways, there are some issues that all employers share. For example, every organization faces the challenge of balancing employees’ medical privacy against the need to protect employees, customers and vendors from contracting this highly infectious disease in the workplace—all while attempting to mitigate the potential and economic impacts of widespread business disruption.
How Manatt Can Help: Manatt can draw on integrated resources from its labor and employment, healthcare regulatory, and employee benefits practices to advise employers on the state and federal laws that should shape their responses to the coronavirus pandemic. We can provide experienced guidance to address employers’ key concerns during the COVID-19 crisis, including ensuring employers’ medical inquiries of workers are consistent with the Americans with Disabilities Act; providing a safe workplace and paid or unpaid leave, as required by state or federal law; avoiding discrimination on the basis of race or national origin; planning for and managing telecommuting; and taking appropriate steps if widespread disruption requires that portions of a workforce be laid off, including continuation of employee benefit plans. Manatt also can provide guidance to ensure employers are in compliance with state and federal privacy laws.
For More Information: Contact Michael Kolber, partner, Manatt Health, at firstname.lastname@example.org or 212.790.4568 or Esra Hudson, partner, Employment and Labor, at email@example.com or 310.312.4381.
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Understanding Data Privacy Requirements in the Age of COVID-19
Section 1135 of the Social Security Act authorizes the Department of Health and Human Services (HHS) to waive the requirements of certain healthcare laws when the agency declares a public health emergency (PHE) under Section 319 of the Public Health Service Act and the President declares an emergency or disaster under either the National Emergencies Act or the Stafford Act. In response to the coronavirus outbreak, HHS declared a nationwide PHE retroactive to January 27, 2020, and the President has declared a national emergency under the National Emergencies Act retroactive to March 1, 2020.
In the privacy sphere, HHS has exercised its authority under Section 1135 to waive the imposition of penalties under the following Health Information Portability and Accountability Act (HIPAA) requirements: (i) the need to obtain a patient’s consent to speak with family members about the patient’s medical care; (ii) the duty to honor a patient’s request to be excluded from a facility directory; (iii) the distribution of privacy notices; and (iv) the obligation to process patient requests for restrictions on the use of their health information and their receipt of confidential communications. HHS and the Office of Civil Rights have, in addition, issued waivers and guidance intended to relax HIPAA-related restrictions on telehealth technologies, including commonly used platforms such as FaceTime and Skype. Healthcare providers may request additional waivers or enforcement discretion from HHS (typically through the regional office of the Centers for Medicare & Medicaid Services (CMS) or the state health department) based on their particular circumstances and needs.
How Manatt Can Help: Manatt can assist providers in understanding the scope of existing waivers and guidance, and also in preparing and submitting requests for additional flexibilities. We also can help clients understand and navigate the complex slate of state and federal laws governing privacy and data sharing to ensure they remain compliant while effectively treating patients and coping with the crisis.
For More Information: Contact Robert Belfort, partner, Manatt Health, at firstname.lastname@example.org or 212.830.7270.
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Responding to the Crisis With New Flexibilities in Medicaid
During the COVID-19 crisis, states have the opportunity to request added flexibilities that can broaden coverage and reduce enrollment documentation. For example, states can request a limited period of presumptive Medicaid eligibility (similar to New York’s request after 9/11) or a special enrollment period for exchange plans. New Mexico already has taken action, expanding eligibility to its Medical Insurance Pool for COVID-affected individuals who would otherwise not be covered. States also can request additional flexibilities related to easing monitoring and documentation burdens and expanding their workforce.
The COVID-19 pandemic also brings states a wide range of new challenges. Even among covered individuals, increases in utilization may raise costs. For non-covered individuals, utilization increases could strain safety net providers, affecting their ability to provide care to Medicaid enrollees for both COVID-19 and unrelated conditions.
How Manatt Can Help: As a trusted advisor to state policymakers, Medicaid agencies, providers and plans on Medicaid regulatory, policy and operational matters, Manatt brings the deep knowledge to support all stakeholders in the Medicaid program as they respond to the impacts of COVID-19. Serving as a technical advisor to CMS Medicaid and CHIP Coverage Learning Collaboratives, Manatt supported the development of disaster preparedness toolkits and inventory checklists created to guide effective responses to hurricanes, floods and wildfires. Manatt is now advising state Medicaid agencies on how to adapt these proven strategies to the COVID-19 pandemic to ensure timely access to care, address a compromised provider workforce, leverage telehealth to treat Medicaid and CHIP enrollees remotely, and prepare for a diminished state agency workforce. Central to our technical assistance support to states are our understanding of and sensitivity to state needs and pressures, and our ability to think strategically and creatively to provide support during times of crisis. We also guide health plans on strategies to streamline operations in the event of workforce diminishment, and to transition core Medicaid eligibility and enrollment functions to remote and technology-supported solutions.
For More Information: Contact Kinda Serafi, partner, Manatt Health, at email@example.com or 212.790.4625.
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Facing New Pressures From COVID-19 in Commercial Health Insurance
Health plans are facing new and growing pressures from the coronavirus pandemic. Higher-than-expected utilization may increase costs beyond actuarial projections during a time of financial and market instability. Adding to the financial strain is the potential for the U.S. Preventive Services Task Force to classify COVID-19 testing as a preventive service, which would require all Affordable Care Act-compliant plans to cover it at no cost to enrollees. Coverage requirements would be similar if an eventual vaccine is recommended by the Advisory Committee on Immunization Practices (ACIP).
Already, some state governments have sought to mandate free or low-cost coverage of COVID-19 testing. (It is important to note that states cannot regulate self-insured ERISA plans, which may cover a substantial portion of a state’s population. These plans are currently regulated by the federal Department of Labor.)
How Manatt Can Help: With a team of former state and federal regulators and insurance experts, Manatt has the firsthand knowledge to support all stakeholders in effectively addressing the impact of COVID-19 on plans, consumers and providers. Manatt has deep experience in coverage issues, including advising states and providers on creating and implementing best practices for ensuring adequate coverage during crises such as the opioid epidemic. We are now helping plans, states and providers tailor those strategies to respond to the rapid regulatory and operational changes triggered by COVID-19. Manatt can provide support and guidance across a range of critical areas, including cost sharing waivers for testing and screening, telehealth coverage, prior authorization and other utilization reviews, provider network adequacy and out-of-network access, off-formulary prescription coverage and relaxed limits on drug refills, consumer communications, declarations of emergency, funding, vaccination coverage, travel insurance, and more.
For More Information: Contact Joel Ario, managing director, Manatt Health, at firstname.lastname@example.org or 518.431.6719 or Troy Oechsner, partner, Manatt Health, at email@example.com or 518.431.6714.
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Rising to Meet the COVID-19 Challenge Places Serious—Unprecedented—Demand on Healthcare Providers
As health systems and provider organizations mobilize to meet the increased demands for access, testing and treatment from the COVID-19 pandemic, they do so at a time of critical healthcare workforce staffing shortages, supply shortages and changing economics. For providers, developing a strategic response means preparing for the worst-case scenario while hoping at least to “flatten the curve” enough to manage the demands on resources. All provider segments will face tremendous challenges—and difficult decisions for patients and staff alike—in responding to the need.
In the immediate term, federal and state guidance for providers is being released daily (if not more frequently. However, questions and critical provider responses related to funding; regulatory flexibilities for issues, such as telehealth, provider networks and alternate or temporary care settings (including makeshift wards and repurposing community locations, such as hotels and schools for care delivery); care coverage and access challenges; access to needed supplies; protection of health data (including key privacy and security questions); and a myriad of other issues will continue into the foreseeable future. At the same time, provider organizations are large employers and while they face many of the same legal questions related to rapidly changing employer guidance, health systems face more complex questions and acute issues related to ensuring adequate staffing levels and regional care planning, as well as planning for child care and other flexibilities to ensure frontline clinical staff can continue to provide care.
How Manatt Can Help: Manatt is rapidly tracking and advising on emerging guidance from the U.S. Department of Health and Human Services (HHS) and state governments and can support providers in navigating the complex legal, regulatory and compliance issues that COVID-19 raises, as well as the associated questions related to funding and emergency response. We also can help providers design and execute telehealth strategies, evolve data analytics and population management approaches, work with their state agencies and Medicaid programs to develop effective regional strategies and think through complex issues that may require additional regulatory flexibility.
In addition, we bring the perspective and strategic guidance of regulatory leaders, as well as seasoned administrative and clinical leaders who have been in the trenches running health systems, academic medical centers, home health and other provider organizations. The Manatt team can help providers clarify their key questions and proactively address the mounting strategic, financial and organizational challenges that COVID-19 presents.
For More Information: Contact Randi Seigel, partner, Manatt Health, at firstname.lastname@example.org or 212.790.4567 or Brenda Pawlak, managing director, Manatt Health, at email@example.com or 202.585.6523.
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Dealing With the Inevitable: In the Midst of COVID-19, the Only Certainty Is That There Will Be Litigation
In this uncertain time—with the entire healthcare system in the midst of a novel pandemic, legal and regulatory guidance changing daily and all stakeholders racing to adapt—litigation is inevitable. This will be true for every industry, but it will be particularly true for healthcare. A barrage of ever-changing and sometimes-conflicting guidance will raise issues of first impression on topics like jurisdiction, standing and preemption. And the normal challenges of healthcare litigation will be compounded by nationwide court closures and reductions in services. Litigators will need to stay on top of all of these issues and move as quickly as the changing landscape.
How Manatt Can Help: Manatt’s nationally recognized Healthcare Litigation Group has a deep bench of litigators who come pre-armed with substantive and procedural expertise. For years, Manatt’s litigators have been on the front lines of healthcare litigation on behalf of both providers and payers. Thanks to their close integration into Manatt Health, they are up-to-date on the latest developments and ready to spring into action as litigation becomes necessary.
For More Information: Contact Greg Pimstone, partner, Manatt Health, at firstname.lastname@example.org or 310-312-4133 or Joe Laska, partner, Manatt Health, at email@example.com or 415-291-7446.
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