On March 14, 2020, the U.S. House of Representatives voted 363 to 40 (with one representative voting present) to pass H.R. 6201 – Families First Coronavirus Response Act. The bipartisan legislation, negotiated between House Speaker Nancy Pelosi and Treasury Secretary Steven Mnuchin, provides certain sick leave benefits, expands food assistance and unemployment benefits, and revises certain tax provisions related to the same. It also provides additional appropriations for efforts in the Coronavirus Preparedness and Response Supplemental Appropriations Act (P.L. 116-123).
If it becomes law, the legislation also would provide free novel coronavirus (COVID-19) testing for most healthcare consumers, something House Democratic leadership and President Donald Trump have stated is an important national priority. The legislation would also make changes to existing laws that could affect healthcare providers. Here are five key things for healthcare providers to know about the legislation.
Emergency OSHA Standards. The legislation would require promulgation of new Occupational Safety and Health Administration emergency temporary standards for employers in the healthcare sector within one month of enactment. It would require the secretary of labor to issue permanent OSHA standards addressing these issues within six months of the temporary standards. These emergency OSHA standards would require the development and implementation of a comprehensive infectious disease exposure control plan to protect healthcare workers from exposure to the pathogens that cause COVID-19. As drafted, the standards would be based on the CDC’s 2007 “ Guideline for Isolation Precautions: Preventing Transmission of Infectious Agents in Healthcare Settings,” which was drafted in response to the severe acute respiratory syndrome outbreak (SARS) but never officially finalized into regulatory guidelines. The standards will also apply to (i) hospitals and skilled nursing facilities that are run by state governments that are otherwise excused from OSHA standards and (ii) employees in other sectors that the Centers for Disease Control and Prevention or OSHA designate as being at elevated risk of COVID-19 exposure.
COVID-19 Diagnostic Tests at No Cost to Most Patients. Private health plans, including group health plans and health insurance issuers offering group or individual health insurance (e.g., grandfathered health plans), Medicare, Medicare Advantage, Medicaid, CHIP plans, TRICARE and Indian Health Services would be required to cover testing for COVID-19 without cost or beneficiary cost-sharing. The legislation also ensures healthcare consumers will not be charged for the applicable medical office or hospital visit occurring in conjunction with the COVID-19 diagnostic test. Commercial health plans, including Medicare Advantage plans, would not be allowed to require prior authorization or utilization management to receive the COVID-19 diagnostic test. Furthermore, the legislation would provide $1 billion for the National Disaster Medical System to reimburse healthcare providers that provide these tests to the uninsured and increase the federal share of Medicaid and CHIP expenditures for these tests. Notably, the legislation, as currently drafted, does not extend coverage to any follow-up medical care that may be required based on COVID-19 test results.
Liability Protection for Personal Respiratory Protective Devices. The legislation adds certain personal respiratory protective devices as covered countermeasures under the Public Readiness and Emergency Preparedness (PREP) Act Declaration for emergency use during the COVID-19 pandemic. Under the PREP Act Declaration, those who produce, manufacture, distribute, administer or proscribe certain covered countermeasures (including pandemic or epidemic products, security countermeasures, and certain drugs, biologics or devices authorized for emergency use), are immune from suit and liability under both federal and state law with respect to claims arising out of the administration or use of such device. The legislation would add to this immunity personal respiratory protective devices that are approved by the National Institute for Occupational Safety and Health and used in response to the COVID-19 outbreak before Oct. 1, 2024. This immunity may provide additional protection for manufacturers that need to increase production quickly for those individual patients who need devices in response to the COVID-19 outbreak.
Increased Medicaid Spending and Allotments. As currently drafted, the legislation increases the federal medical assistance percentage (FMAP) for Medicaid by 8 percent for each state and certain territories for the duration of the COVID-19 public health emergency. To receive these additional funds, states must maintain eligibility standards that are no less restrictive than those currently in place on the date of enactment. The legislation would also increase Medicaid allotments for U.S. territories.
Sick and Family Leave Benefits. As noted above, the legislation would create new emergency sick and family-care leave benefits for employees of certain smaller employers. McGuireWoods’ labor and employment team is actively preparing guidance for employers facing these changes. Healthcare providers will want to review this guidance carefully as the new benefits could challenge their operations if employees are self-isolating or caring for their family members in light of the COVID-19 pandemic. Additionally, employers will want to consider plans to ensure care providers assist their communities during this outbreak.
Next Steps. House leadership is expected to prepare a technical corrections bill. Thereafter, the U.S. Senate could take up the measure. President Trump has indicated that he would sign the legislation.
Please contact the authors for additional guidance on how this legislation could affect the delivery of patient care and the operation of healthcare providers. McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial Coronavirus-related business and legal issues.