In a special LabFocus The Joint Commission revealed they have resumed some laboratory survey activities. TJC stated that “[a]ccount executives are contacting organizations due for a survey to assess the impact that the coronavirus pandemic had on their operations and their current state.” To determine which organizations will be surveyed, TJC is looking at “a number of factors” and prioritizing where it is safe to survey with a priority on low-risk areas. As we discussed in an earlier Health Law Pulse blog post, TJC is employing certain safety procedures in response to the coronavirus pandemic:
- Limiting the numbers of individuals in group sessions. The use of audio or video conference calls can be incorporated by the organization to safely expand the number of attendees.
- Minimizing the number of people who accompany the surveyor on tracer activities.
- Using masks will be a routine practice, and we will expect the organization to provide masks and/or other personal protective equipment (PPE) to surveyors and reviewers while on-site.
- Maximizing the use of technology to eliminate the need for a number of people to sit directly next to an individual for an extended time. For example, conducting electronic medical record reviews using screen-sharing or displaying/projecting the record. Other examples include simulating an activity if we are unable to enter a high-risk space, and interviewing patients or staff by phone.
- Driving in separate cars to off-site locations or home visits.
In a June 26, 2020 letter to Centers for Medicare & Medicaid Services Administrator Seema Verma the American Hospital Association (AHA) urged the Trump administration to “temporarily extend certain waivers and make others permanent beyond the duration of the COVID-19 public health emergency.” The letter states that AHA members found the flexibilities provided during the COVID-19 public health emergency have provided for “a better patient experience and high-quality outcomes in the long term, regardless of whether they are operating in a public health emergency environment.” The AHA provides a number of recommendations, such as: a permanent expansion of telehealth services including the provision of telehealth through everyday communications technologies like FaceTime and Skype; continuing to permit health care professionals to practice at the top of their licenses and continuing to allow out-of-state providers to perform services so long as they are licensed in another state; permitting continued flexibility to increase bed capacity during emergencies; and flexibility relating to certain administrative requirements. The AHA also specifically asks for a delay of the following rules and requirements during the pandemic:
- Delaying and reconsidering the implementation of the new CoP requirement regarding Admission Discharge Transfer (ADT) sharing established under CMS’s interoperability rule, as hospitals have redirected resources necessary to comply with this rule to their COVID-19 responses.
- Delaying the Jan. 1, 2020 appropriate use criteria (AUC) deadline for providers to use clinical decision support mechanisms to verify AUC before ordering and performing advanced imaging tests.
- Permanently suspending the release of the Medicaid Fiscal Accountability Final Rule.
- Supporting a congressional delay of Medicaid Disproportionate Share Hospital (DSH) cuts through at least 2021.
The U.S. Centers for Disease Control (“CDC”) has updated and expanded the list of people at risk of severe COVID-19 illness. The CDC has removed a specific age threshold and now states that while “older adults and people with underlying medical conditions remain at increased risk for severe illness” it is also “clear that a substantial number of Americans are at increased risk of severe illness.” The new guidance provides “that among adults, risk increases steadily as you age, and it’s not just those over the age of 65 who are at increased risk for severe illness.” The CDC also updated the list of underlying conditions that increase risk of severe illness:
- Chronic kidney disease
- COPD (chronic obstructive pulmonary disease)
- Obesity (BMI of 30 or higher)
- Immunocompromised state (weakened immune system) from solid organ transplant
- Serious heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies
- Sickle cell disease
- Type 2 diabetes
Norton Rose Fulbright attorneys will continue to provide relevant updates for healthcare providers on the Health Law Pulse related to the COVID-19 pandemic.