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COVID-19: Updates and Developments (Week of May 11)

  • May 15, 2020

House Democrats unveiled May 12 a $3 trillion relief package to further address the growing economic fallout of the coronavirus pandemic.

The Health and Economic Recovery Omnibus Emergency (Heroes) Act (H.R. 6800), includes nearly $1 trillion in funding for state and local governments; an additional $75 billion for COVID-19 testing, contact tracing, and isolation measures; and more direct payments to individuals and families.

Among other provisions, the legislation also includes a $200 billion fund to ensure that essential workers receive hazard pay, according to a summary of the bill.

“The Heroes Act focuses on three pillars: opening our economy safely and soon; honoring our heroes; and, then, putting much-needed money into the pockets of the American people,” said House Speaker Nancy Pelosi (D-CA) in a statement.

Republicans, however, blasted the measure, which House Minority Leader Kevin McCarthy (R-CA) called a “liberal wishlist” that “stands no chance of becoming law.” The House is expected to vote on the bill on Friday, May 15.

In the Senate, Majority Leader Mitch McConnell (R-KY) has put the brakes on another round of massive stimulus legislation after the $2 trillion CARES Act passed last month, although he indicated in recent remarks that another relief package was likely. 

McConnell said he has spoken with the Treasury Secretary, the White House Chief of Staff, and the President and "we all believe that another bill probably is going to be necessary. But I’m not prepared today to put a precise date on when that will be." He also made clear that litigation protections for frontline workers, universities, and businesses would be part of any additional relief package.

Liability protections have become a hot button issue, with provider groups asking for them and consumer advocates arguing against broad immunity shields.

In a May 11 letter, AARP urged the leaders of the Senate Judiciary Committee, which held a hearing this week on the issue, to reject proposals for granting immunity related to COVID-19 to long term care facilities.

“AARP strongly urges you to protect the safety of residents, including by maintaining the rights of residents and their families to seek legal redress to hold facilities accountable when residents are harmed, neglected, or abused,” the letter said.  

Senator John Cornyn (R-TX), who is leading the effort for additional liability protections, said May 12 on the Senate floor that while legitimate lawsuits involving willful or reckless conduct should be allowed, liability limitations should be in place to “prevent frivolous and nuisance lawsuits from harassing our frontline health care workers . . . which were acting reasonably and complying in good faith with health guidelines.”

Agency Developments

Department of Health and Human Services (HHS)

May 13—HHS awarded $15 million under the CARES Act to 159 organizations to increase telehealth workforce capabilities during the COVID-19 pandemic. The funding will be used by the organizations to train students, physicians, nurses, physician assistants, allied health and other professionals to maximize telehealth.

Centers for Medicare & Medicaid Services (CMS)

May 13—CMS released a new toolkit that provides resources for addressing the challenges nursing homes face in combating COVID-19. The toolkit, which was developed with input from each state, is intended to help nursing homes and state and local governments improve quality and implement strategies for managing and preventing the spread of COVID-19 in long term care settings. The toolkit outlines best practices on infection control, workforce staffing, and a host of other issues. CMS also announced contracts with 12 Quality Innovation Network-Quality Improvement Organizations (QIN-QIOs) that will be reaching out to nursing homes with previous citations for infection control deficiencies, as identified through Nursing Home Compare, to provide virtual technical assistance on quality improvement.

Internal Revenue Service (IRS)

May 12—The IRS issued Notice 2020-29 extending the claims period for health flexible spending arrangements (FSAs) and dependent care assistance programs through December 31, 2020 and expanding taxpayers’ ability to make mid-year elections for health coverage, health FSAs, and dependent care assistance programs because of changes in needs resulting from the COVID-19 pandemic. The guidance indicates that previously provided temporary relief for high deductible health plans may be applied retroactively to January 1, 2020. The IRS also issued Notice 2020-33, which increases the limit for unused health FSA carryover amounts from $500, to a maximum of $550, as adjusted annually for inflation.

Other Developments

May 14—The Trump administration announced May 14 a plan for restructuring the Strategic National Stockpile. In addition to increasing supplies, the plan calls for leveraging technology "to provide real-time visibility of supply chains" and for "reducing dependency on foreign supplies." President Trump also issued an executive order "providing the authority to ensure America is producing critical goods necessary to build up our strategic stockpiles."

May 14—The National Association of Accountable Care Organizations (NAACOS) and eight other leading health care organizations are asking CMS to take additional steps to support ACOs during the COVID-19 pandemic. At the end of April, CMS announced it was adjusting its methodology for assessing ACOs' performance under the Medicare Shared Savings Program to account for COVID-19 costs. Instead of the annual application cycle for 2021, ACOs also have the option to extend for another year at their current risk level. In a letter to CMS Administrator Seema Verma, the groups urged the agency for further relief including giving ACOs an option to be fully protected from losses in exchange for a reduced shared savings rate of no less than 40%; extending the current deadline to voluntarily terminate their participation in the Shared Savings Program to no sooner than October 31; reversing the agency's decision to cancel the 2021 application cycle; and paying ACO shared savings payments and bonuses as soon as possible. The groups signing the letter included the American College of Physicians,  American Medical Association, and Medical Group Management Association. 

May 13—The Federal Bureau of Investigation and the Cybersecurity and Infrastructure Security Agency issued a warning that China and affiliated cyber actors are attempting to identify and illicitly obtain valuable intellectual property and public health data on vaccines, treatments, and testing from networks and personnel in the United States conducting COVID-19-related research. In a Public Service Announcement, FBI and CISA urged “all organizations conducting research in these areas to maintain dedicated cybersecurity and insider threat practices to prevent surreptitious review or theft of COVID-19-related material.”

May 13—The Kaiser Family Foundation released an analysis estimating that roughly 5.7 million could be faced with few affordable options for insurance after losing coverage through their employers. The analysis notes that more than 31 million filed for unemployment insurance between March 1 and May 2. Around 27 million of those may be uninsured as a result of losing their employer-sponsored coverage, while roughly 12.7 million are eligible for Medicaid and additional 8.5 million are eligible for federal marketplace subsidies. The remainder, however, may find themselves in the “coverage gap” for Medicaid, ineligible for federal subsides through the ACA marketplaces, or be limited by other requirements, the analysis found.

May 12—Several medical practices and a patient in Michigan are suing Governor Gretchen Whitmer arguing her decision to re-declare a state of emergency violates state law and is unconstitutional. According to the lawsuit, filed in the U.S. District Court for the Western District of Michigan, Whitmer re-declared a state of emergency after the state legislature determined it should not extend beyond April 30. Plaintiffs allege that Whitmer’s “sweeping assertion that she can rule by emergency powers, potentially for years and without any regard for the Legislature, exceed the scope of her statutory authority and violates the safeguard of the Michigan Constitution’s Separation of Powers clause." The complaint also contends that executive orders prohibiting all “non-essential” medical treatments are unconstitutionally vague, violate procedural and substantive due process, and violate the dormant commerce clause. “Plaintiffs who are healthcare providers are also facing dire financial outlooks that could very well spell disaster for—and permanent shuttering of—their businesses,” the complaint says.