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September 11, 2020

Health Law Weekly

COVID-19 Updates and Developments (Week of September 7)

  • September 11, 2020

Senate Republicans fell short of the votes needed to bring a pared-down COVID-19 relief measure to the floor, dimming the prospects for additional stimulus legislation in the near term.

The measure was unveiled earlier in the week and included an estimated $500 billion in funding. The measure, among other things, would have extended expired federal pandemic unemployment insurance compensation until December 27 at $300/week (down from the original $600/week benefit) and included funding for vaccines, testing, and small businesses.

The measure also would have provided liability protections from COVID-related lawsuits for businesses, schools, and other organizations. Notably, the measure didn’t include additional funding for state and local governments, a priority for Democrats. 

In May, House Democrats cleared a $3 trillion bill that included $1 trillion in funding for state and local governments. House Speaker Nancy Pelosi reportedly agreed to a lower figure for a comprehensive stimulus package, about $2 trillion, in subsequent negotiations.

Republicans in late July introduced a $1 trillion relief package that also failed to gain traction.

On September 10, the Senate voted 52-47 in favor of the trimmed-down measure, which is shy of the 60 votes needed to advance the bill to the floor.

Agency Action

Department of Health and Human Services (HHS)

September 9—HHS issued guidance expanding state-licensed pharmacists’ authority to order and administer COVID-19 vaccinations to individuals three years of age and older subject to certain requirements. HHS issued the guidance under the Public Readiness and Emergency Preparedness Act (PREP Act). "This action builds upon our Administration's progress toward delivering a safe, effective, and widely available vaccine by 2021," said Assistant Secretary for Health ADM Brett P. Giroir, M.D. "Allowing pharmacists to order and administer COVID-19 vaccines will greatly expand convenient access for the American people." To order or administer a COVID-19 vaccine, the guidance requires pharmacists and state-licensed or registered pharmacy interns to meet certain requirements including completing an accredited practical training program and two hours of immunization-related continuing pharmacy education. Pharmacists also must comply with recordkeeping and reporting requirements in the jurisdiction where the vaccine is administered. The authorization preempts any state and local laws that prohibit qualifying pharmacists or pharmacy interns from ordering or administering COVID-19 vaccines. 

September 3—HHS announced plans for how it will tie a $2 billion distribution of provider relief funds to nursing homes to patient outcomes. In July, the agency said it would distribute an additional $5 billion in funds under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to aid nursing homes. About $2.5 billion was delivered to nursing homes by the end of August. Another $2 billion is slated for distribution based on performance indicators. According to HHS, nursing homes will not need to apply for the performance-based incentive payments; instead, the agency will distribute the $2 billion in funds based on nursing home data submissions. The payments will be divided into four performance periods (September, October, November, and December), lasting a month each. HHS said distributions will be based on a full month’s worth of data, which will undergo additional scrutiny and auditing. Facility performance will be measured against a baseline level of infection in the relevant community on two outcomes: ability to keep new COVID infection rates low among residents and ability to keep COVID mortality low among residents.

Internal Revenue Service (IRS)

September 9—IRS issued guidance that Medicaid coverage of COVID-19 testing and diagnostic services will not prevent an uninsured individual from being eligible for the premium tax credit through the Affordable Care Act marketplace. Specifically, Notice 2020-66 indicates that Medicaid coverage of COVID-19 testing and diagnostic services is not “minimum essential coverage” under a government-sponsored program for purposes of Section 36B of the Internal Revenue Code. The Families First Coronavirus Response Act authorized states to provide COVID-19 testing and diagnostic services to uninsured individuals under the Medicaid program.

Equal Employment Opportunity Commission (EEOC)

September 8—The EEOC issued updated guidance for employers on COVID-19 and federal workplace anti-discrimination laws. The updated guidance makes clear that employers may require employees to undergo COVID-19 testing before entering the workplace without running afoul of the Americans with Disability Act (ADA). “The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard,” EEOC said. The guidance also clarifies the EEOC’s existing position that employers may inform their workforce that employees with disabilities may request accommodations in advance for when the workplace re-opens. Employers still must consider subsequent requests if the employee opts not to request an accommodation in advance.