President Trump issued an Executive Order on August 3, 2020 that will continue the momentum for telehealth in rural areas. The Executive Order seeks to assist rural hospitals, highlighting that since 2010, 129 rural hospitals in the United States have closed and that “[f]rom 2015 to 2017, the average occupancy rate of a hospital that closed was only 22 percent.” However, being located in a Medicaid expansion state decreases the likelihood of a rural hospital closing. The Executive Order also cites to the significant increase in telehealth visits since the beginning of the pandemic. In the final week of April CMS covered 1.7 million telehealth visits compared to 14,000 consultations prior to the pandemic. The Executive Order instructs:

  • The Secretary of Health and Human Services (“HHS”) to announce a new model under the Affordable Care Act’s authority “to test innovative payment mechanisms in order to ensure that rural healthcare providers are able to provide the necessary level and quality of care”;
  • The Secretaries of HHS and Agriculture, “consistent with applicable law and subject to the availability of appropriations”, to develop and implement a strategy to improve the physical and communications healthcare infrastructure in rural America;
  • The Secretary of HHS to submit a report to President Trump within 30 days regarding existing and upcoming policy initiatives addressing:
    • Increase rural access to healthcare by eliminating regulatory burdens that limit the availability of clinical professionals;
    • Prevent disease and mortality by developing rural specific efforts to drive improved health outcomes;
    • Reduce maternal mortality and morbidity; and
    • Improve mental health in rural communities.
  • The Secretary of HHS to review the telehealth services offered to Medicare beneficiaries and the flexibilities issued to providers in rural areas during the PHE and to propose within 60 days a regulation extending the measures, as appropriate.

Also on August 3, 2020, Governor Andrew Cuomo signed into law Senate Bill S8835 that clarifies the liability protections for health care professionals and facilities provided in the Emergency or Disaster Treatment Protection Act (“EDTPA”) passed on April 6, 2020. The EDTPA provided “immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained because of an act or omission while arranging for or providing healthcare services”. The law does not provide immunity where harm is the result of “an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm,” The amendments in Senate Bill S8835 defines “health care services” to mean (a) the diagnosis or treatment of COVID-19; or (b) the assessment or care of an individual as it relates to COVID-19, when such individual has a confirmed or suspected case of COVID-19. They also modify the law to provide immunity from liability only where the health care facility or health care professional is providing actual health care services in accordance with applicable law or where appropriate pursuant to a COVID-19 emergency rule. The changes apply prospectively.

Norton Rose Fulbright attorneys will continue to provide relevant updates for healthcare providers on the Health Law Pulse related to the COVID-19 pandemic.