April 30, 2020

QUESTION:        Our hospital is eligible to receive money from the CARES Act Provider Relief Fund. The HHS Terms and Conditions say that the payment will only be used to prevent, prepare for, and respond to coronavirus, and shall reimburse the Recipient only for health care related expenses or lost revenues that are attributable to coronavirus.  There is also a condition that none of the funds can be used to pay individual salaries “in excess of Executive Level II.”  Can we still use the money to offset losses that our hospital and physician practices incurred resulting from the cancellation of elective procedures due to the lockdown order in our state?


ANSWER:            Yes, as long as the funds are not used to subsidize any particular physician’s salary. The Terms and Conditions incorporate by reference HRSA guidance about the salary cap, which was part of the original Congressional grant appropriation. Effective January 2020, the “Executive Level II” salary level is $197,300.  According to HRSA: “An individual’s institutional base salary is not constrained by the legislative provision for a limitation of salary. The rate limitation simply limits the amount that may be awarded and charged to HRSA awards. For individuals whose salary rates are in excess of Executive Level II, the non-federal entity may pay the excess from non-federal funds.”  So as long as the money is not used to fund any particular individual’s salary, you should be able to use the money to offset general losses experienced by your hospital or physician practices without the salary cap affecting what you pay.

April 16, 2020

QUESTION:        We expect to have a surge of coronavirus patients in the next week or two, so we are currently credentialing and privileging practitioners to help with the patient volume.  Should we rely exclusively on disaster privileges for this, or should we consider temporary privileges instead?  What about emergency privileges?


ANSWER:          Emergency privileges are not an ideal tool for dealing with a pandemic.  Emergency privileges are intended for scenarios where a patient experiences a sudden emergency and a physician rushes to help.  For example, imagine a circumstance where a (seemingly healthy) patient is visiting your hospital and collapses suddenly.  Emergency privileges would authorize a physician to provide emergency care at the scene that goes beyond the scope of his or her clinical privileges.  That authorization would last only until the emergency was under control.

Consequently, the main question is whether you should grant temporary privileges (for an important patient care need) or disaster privileges.  If you have a week or two to prepare for a surge in patient volume, then it may be optimal to consider temporary privileges.  If you are part of a system (even if there is not a unified medical staff) you could pass a resolution allowing for the grant of temporary privileges for an important patient care need to any physician, or other practitioner, who has been fully credentialed by any hospital within the system.  The only verification that would be necessary would be confirmation from the medical staff office or credentialing verification office that the individual maintains appointment and clinical privileges within the system.  Additionally, as with any other grant of clinical privileges, you would have to query the NPDB.  This query should be made before the physician starts to work.

Disaster privileges can be used if you need to onboard someone very quickly.  Generally speaking, disaster privileges can be granted after you verify a volunteer’s identity and licensure.  Accreditation standards place certain timelines on the verification of licensure.  Note that the Joint Commission also requires an oversight process for volunteers who are licensed independent practitioners and who have been granted disaster privileges.  Specifically, based on the oversight, the hospital must determine within 72 hours if disaster privileges should continue.  A similar process must be followed for volunteers who are not licensed independent practitioners but who are “required by law and regulation to have a license, certification, or registration” (e.g., respiratory therapists).

This is a rapidly evolving topic, and it is important to consider your own unique needs and circumstances when evaluating these options.

April 2, 2020

QUESTION:        Where can we find any and all updates regarding the coronavirus?


ANSWER:          We have those resources on our “What’s New in Health Law Coronavirus (COVID-19) Resources” page at hortyspringer.com. It is a comprehensive collection of links that will keep you updated on COVID-19.  So please check the page often to get the latest.

For example, check out this simple but brilliant innovation by our friends at Armstrong County Memorial Hospital. This newly designed DIY intubation shield allows for an extra barrier of protection for healthcare providers during the COVID-19 pandemic.

March 5, 2020

QUESTION:      I heard that Congress is considering legislation that would support nationwide responses to the risk of coronavirus.  What’s the status of that legislation?

ANSWER:        Yes, Congress is currently considering the Coronavirus Preparedness and Response Supplemental Appropriations Act.  It has passed the House and is now under consideration in the Senate.  Among other things, the proposed bill provides additional funding to the CDC, FDA, and NIH, and also provides funds for the development of vaccines, therapeutics, and diagnostics.  It directs the Secretary of Health and Human Services to purchase vaccines (when they become available).

It is likely that this draft will be revised significantly before it becomes law.  If you would like to track its progress, you can do so here.

UPDATE:         The bill has passed the Senate and it now goes to President Donald Trump for his signature.

February 27, 2020

QUESTION:       What is the federal government doing regarding the Coronavirus (COVID-19)?

ANSWER:          The Centers for Disease Control and Prevention (“CDC”), of course, has taken the lead and is constantly updating the public on the situation.  Yesterday, the CDC confirmed an infection in California in someone who did not have travel history or exposure to someone else with COVID-19.  The CDC stated, “At this time, the patient’s exposure is unknown.  It’s possible this could be an instance of community spread of COVID-19, which would be the first time this has happened in the United States.  Community spread means spread of an illness for which the source of infection is unknown.  It’s also possible, however, that the patient may have been exposed to a returned traveler who was infected.”

The CDC went on to state, “This case was detected through the U.S. public health system — picked up by astute clinicians.  This brings the total number of COVID-19 cases in the United States to 15.”

PLEASE NOTE: The CDC has a dedicated Coronavirus internet site where it discusses “What You Should Know,” “Situation Updates” and “Information For…HealthCare Professionals.”