Connecticut Orthopaedic Society (COS) Webinar – COVID-19 Crisis: How Can You Exit or Modify a Contract You Can No Longer Afford or Comply With?

April 23, 2020
12:30 PM

Speakers: Barry B. Cepelewicz 

Garfunkel Wild Partner/Director Barry B. Cepelewicz  will present at the Connecticut Orthopaedic Society (COS) Webinar – COVID-19 Crisis: How Can You Exit or Modify a Contract You Can No Longer Afford or Comply With? on April 23, 2020 .

With the continuing spread of COVID-19, many physicians, practices, and ambulatory surgery centers are experiencing a significant disruption of business on a scale never seen before. Whether it’s an employment agreement, vendor agreement, professional services agreement, management agreement, lease or otherwise, contracts that were once favorable and profitable are now impossible to perform or pay for.

This program will discuss how you can use force majeure provisions and/or the related doctrines of impossibility of performance, impracticability of performance and/or frustration of purpose to modify or terminate your contracts. The program will conclude with a discussion of business interruption insurance.

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Approximately $30 billion of the $100 billion appropriated for healthcare providers in the Coronavirus Aid, Relief, and Economic Security (CARES) Act has been distributed to providers across the country. To many, it was a surprise payment – that came with terms and conditions which raise many questions. It is anticipated that additional guidance will follow from the Department of Health and Human Services (HHS), but here is some of what we know now (which remains subject to change):

Who is eligible?

Healthcare facilities and providers who received Medicare fee-for-service (FFS) reimbursements in 2019 are eligible for the initial relief funds. Funds are distributed based on the tax identification number used to bill Medicare claims.

How was my share of the funds determined?

Payments are based on a provider’s share of total Medicare FFS reimbursements in 2019. Total FFS payments were approximately $484 billion in 2019.

I had to shut down my practice. Will I still get relief funds?

Yes, as long as you provided diagnoses, testing, or care for individuals with possible or actual cases of COVID-19 after January 31, 2020 you remain eligible to receive funds even if your practice is not currently operational. Care does not have to be specific to treating COVID-19. HHS broadly views every patient as a possible case of COVID-19.

What conditions are attached to keeping the relief funds?

Within 30 days of receiving the funds, providers must sign an attestation confirming receipt of the funds and agreeing to the Terms and Conditions of payment. If the funds are not returned within 30 days, the provider is deemed to have accepted the terms and conditions. In addition, providers must agree not to seek collection of out-of-pocket payments from a COVID-19 patient that are greater than what the patient would have otherwise been required to pay if the care had been provided by an in-network provider. If a provider is unable or unwilling to comply with the terms and conditions, it must return the funds.

What can I use the money for?

The Terms and Conditions currently state, among other things, that the provider certify that the funds will only be used to prevent, prepare for, and respond to coronavirus, and shall reimburse the provider only for health care related expenses or lost revenues that are attributable to coronavirus. In addition, the provider must certify that the funds cannot be used to reimburse expenses or losses that have been reimbursed from other sources or that other sources are obligated to reimburse. It is recommended that the relief funds be segregated so that they can be properly accounted for. Providers are required to maintain records and documentation related to expenditure of the relief funds, and any provider that received $150,000 or more must provide quarterly reports to HHS. The terms and conditions include other restrictions regarding use of the funds that do not directly relate to COVID-19, which should be carefully reviewed.

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Given that more guidance is anticipated, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.  

Click Here to download the Legal Alert.

 

CT Governor Signs Orders Regarding Waivers for Healthcare Providers Related to COVID-19, Restricting Surprise Bills for Out-of-Network Services and Uninsured COVID-19, and Extending Permits and Pre-Licensure for Health Care Professionals

On April 5, 2020 and April 7, 2020, Governor Lamont signed two executive orders, Executive Order 7U (“EO 7U”) and Executive Order 7V (“EO 7V”) that (i) protects health care professionals from civil liability related to health care services related to COVID-19; (ii) restricts surprise bills from out-of-network providers and for uninsured patients; (iii) implements additional workplace measures around safety for COVID-19; (iv) waives fees and extends temporary practice permits for certain health care professionals, and (v) allows certain health care professionals to practice prior to licensure during the public health emergency. The orders are effective for the duration of Connecticut’s public health emergency, declared on March 10, 2020 unless otherwise stated below.

Civil Immunity Waiver for Providers Related to COVID-19 Health Services

EO 7V supersedes EO 7U and protects health care professionals and health care facilities from civil liability related to acts or omissions when rendering health care services in connection with COVID-19. Health care professionals include any individual who is licensed in any state to provide health care services and any retired professional, and any professional with an inactive license or volunteer approved by the State Commissioner of Public Health. Health care facility includes any state approved hospital, clinic, nursing home, field hospital or other facility designated by the Department of Health for temporary use.

The order provides civil immunity to health care professionals and facilities that act in good faith act while providing COVID-19 related health care services during the public health emergency. However, health care professionals and facilities are not immune from activities that constitute a crime, fraud, malice, gross negligence, willful misconduct or other conduct prohibited act under the Connecticut and Federal False Claims Act.

Surprise Billing for Out-of-Network Services and COVID-19 Services to Uninsured Patients

Effective April 5, 2020 through the duration of the public health emergency, an out-of-network provider who renders emergency services to an insured patient may bill the insured’s health carrier directly and health carriers shall reimburse the out-of-network provider as if the services were provided by an in-network provider. EO 7U suspends the Connecticut statute allowing health carriers and out-of-network providers to agree to a greater reimbursement amount than in-network providers receive, effectively requiring out-of-network providers to accept the in-network reimbursement rate.

Also under EO 7U, hospitals, health systems and hospital-based facilities are prohibited from collecting from an uninsured patient an amount greater than the Medicare rate for services related to the treatment of COVID-19. This rule remains in place unless and until there is an executive order calling for federal funds to cover uninsured patient’s costs related to COVID-19. Hospitals, health systems and hospital-based facilities are required to maintain fiscal records of services provided to uninsured patients for COVID-19 treatment.

EO7V: Protective Workplace Measures, Temporary Permit Extension and Fees Waived, and Practice Permitted Prior to Licensure for Certain Health Care Professionals

EO 7V calls for mandatory rules around additional workplace protective measures. These legally binding rules, issued by the Connecticut Department of Economic and Community Development, can be found here.

Also under EO 7V, the application fees for temporary practice permits are waived and temporary practice permits are extended to the duration of the public health emergency for athletic trainers, respiratory care practitioners, physician assistances, occupational therapists and assistants, and master social workers.

Finally, EO 7V permits physical therapists, physical therapy assistants, radiographers, registered nurses, nurse practitioners, clinical nurse specialists, nurse anesthetists, marital and family therapy associates and professional counselor associates to practice prior to licensure for the duration of the public health emergency.

A link to the full text of Executive Order 7U is available here and Executive Order 7V is available here.

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Should you have any questions regarding this Alert, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.  

Click Here to download the Legal Alert.

 

On April 7, 2020, the New York Statement Department of Health (“NYSDOH”) issued guidance allowing adult Social Day Care (“SDC”) programs to provide services during the current COVID-19 public health emergency. SDC providers that contract with Managed Long-Term Care Plans (“MLTCP”) will be reimbursed for SDC services provided telephonically or through telehealth platforms provided certain requirements are met.

General Requirements: The SDC activities must be offered at the request of the participant and reflect the participant’s interest, goals, and preferences as documented in the SDC care plan.

Socialization: The remote activities should meet participant’s needs for interaction and activity such as stretching activities, games, educational activities, arts and crafts, etc.

  • Such remote activities can be delivered via Skype, Google Meet, Zoom, FaceTime, smartphones, or other audio/visual modalities.
  • If participants do not have access to internet or smartphones, the SDC may deliver materials to participants or set up times for activities via telephone.

Monitoring: SDC providers should ensure the health and well-being of the participants by speaking with the participants via telephone and, if needed, by delivering meals, groceries, supplies, or medication. The SDC providers should notify the MLTCP of any need for intervention that may be required.

Transportation: Unless and until further guidance is given by NYSDOH, SDC providers should not provide transportation to participants.

Reimbursement: SDC services that satisfy NYSDOH requirements will be reimbursed in accordance with the provider’s MLTCP agreement and with NYSDOH Medicaid Telehealth guidance.

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Should you have any questions regarding this Alert, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.  

Click Here to download the Legal Alert.

 

Garfunkel Wild Complimentary Webinar – An Employer’s Practical Guide To Facing Day-To-Day Coronavirus Challenges

Monday, April 20, 2020
12:00 PM – 1:00 PM EDT

Speakers:  Andrew ZwerlingMarianne MonroySalvatore Puccio and Lauren Levine

Garfunkel Wild’s Andrew Zwerling, Marianne Monroy, Salvatore Puccio and Lauren Levine will present the webinar  “An Employer’s Practical Guide To Facing Day-To-Day Coronavirus Challenges” on April 20, 2020.

In the last several weeks, myriad laws and protocols have been issued by Federal and local governments in response to the outbreak of the global COVID-19 virus and to dissipate the profound economic and health and safety impacts of the virus. Examples of this are the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, which are part of the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security Act (CARES ACT). At this juncture, while most employers are familiar with the eligibility requirements and magnitude of the leave benefits under these new statutes, they are lacking practical information and guidance on how to implement these requirements.

The webinar will address such issues as:

How to deal with COVID-related health issues in the workplace:

• What measures can employers take to determine if employees coming into the workplace have COVID-19 or related symptoms?
• Can employers tell their employees if a co-worker contracts COVID-19?
• What types of accommodations must an employer consider related to COVID-19?

Planning for your PPP Loan:

• Can employers furlough employees until the PPP loan comes in?
• How can employers apply for a PPP loan?
• How can employers deal with reductions in force and salary reductions in light of a PPP Loan?

Addressing Unemployment Insurance Issues:

• How do the new federal unemployment provisions work?
• What is the interplay between State and Federal Standards?
• What are the rates of unemployment under the new rules?
• What to do with employees who don’t want to return to work?

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