COVID-19 Legal Guidance for Healthcare Professionals and Healthcare Providers in Minnesota

Last update 5.21.2020 – 7am CST

Legal guidance for healthcare professionals and businesses operating in Minnesota. Contact Holt law for clarification on these resources to apply your situation to the law.

1. Minnesota Department of Human Services – COVID-19 Legal Changes to Telemedicine and Programs

  • Minnesota Health Care Programs Provider Manual – COVID-19 (includes telemedicine changes)
    • Telemedicine
      • Until further notice, Minnesota Health Care Programs (MHCP) is temporarily expanding coverage of telemedicine visits.These changes are effective April 1, 2020:
        • Providers can provide services virtually via telephone when providers determine it is safe and effective to do so. This coverage change applies to MHCP members in fee-for-service programs.
        • The current limitation of three telemedicine encounters per week will be suspended.
        • MHCP will cover evaluation and management services provided via telephone using the telephone services CPT codes. Follow CPT guidelines for use of 99441, 99442 and 99443.
        • In delivering telemedicine, the distant site (provider’s location) can be the eligible provider’s home. The originating site (member’s location) can be delivered to members while they are in their home.
        • Providers with current telemedicine assurance statements on file may begin providing telephonic telemedicine immediately.
        • Providers without a telemedicine assurance statement must submit the Telephonic Telemedicine Provider Assurance Statement (DHS-6806A) (PDF) before providing telemedicine services.
        • Billing Telemedicine. Providers who had an approved telemedicine assurance statement prior to April 1, 2020, and have a TD specialty code on their provider file, should continue to bill with place of service 02 for telemedicine. New telemedicine providers on or after April 1, 2020: Do not bill place of service 02 at this time. We are finalizing system edits to recognize this place of service. Effective April 1, 2020, Federally Qualified Health Center and Rural Health Clinic telemedicine services (including telephonic) will be included for the purposes of the face-to-face encounter payment methodology. Any service when provided face-to-face that would generate an encounter will continue to generate an encounter if provided via telemedicine, provided it meets all telemedicine requirements.
  • Temporary expansion of remote support for HCBS waiver services. As of May 4, 2020, the DHS commissioner will allow remote support (real-time, two-way communication) temporarily as a service delivery option for several waiver services. Remote support may be delivered through phone or other interactive technology medium.

  • Minnesota Department of Human Services via “Waivers and Modifications” now has temporary authority to waive or modify requirements during the COVID-19 pandemic. The following changes have been made:

2. Minnesota Law Changes and Executive Orders – COVID-19

  • Minnesota Executive Orders. Most executive orders relate to shutting down certain businesses and activities, and expanding aid. Healthcare facilities are exempt from shutting down, subject to a few conditions. One executive order allows DHS to suspend and temporarily waive its rules, including traditional requirements in telehealth services. DHS has taken actions outlined above which may change on a daily basis. Copy of most recent Safe-At-Home Order is here.
  • Executive Order 20-56 allows some Non-Critical Businesses to reopen under certain conditions. If it has not done so already, a Non-Critical Business choosing to open or remain open must establish and implement a
    COVID-19 Preparedness Plan (“Plan”). Each Plan must provide for the business’s implementation of Minnesota OSHA Standards and MDH and CDC Guidelines in their workplaces. These requirements are set forth in
    guidance published by DEED and DLI (“Plan Guidance”) available on DEED’s website (https://mn.gov/deed/safework/).

     

    • i. Required Plan content. As set forth in the Plan Guidance, at a minimum, each Plan must adequately address the following areas:
      • A. Require work from home whenever possible. All Plans must ensure that all workers who can work from home continue to do so.
      • B. Ensure that sick workers stay home. All Plans must establish policies and procedures, including health screenings, that prevent sick workers from entering the workplace.
      • C. Social distancing. All Plans must establish social distancing policies and procedures.
      • D. Worker hygiene and source control. All Plans must establish hygiene and source control policies for workers.
      • E. Cleaning, disinfection, and ventilation protocols. All Plans must establish cleaning, disinfection, and ventilation protocols for areas within the workplace.
  • Executive Order 20-51 Allows healthcare facilities to resume elective surgeries and procedures if certain criteria is met.
  • Eligibility for Critical Sector Worker Exemption (if not eligible under other executive order):
    • Executive Order 20-20 provides an exemption for workers who (1) work in Critical Sector and (2) cannot perform their work duties from home. Below are steps to determine whether an employee qualifies for this Critical Sector worker exemption:
      • First, please refer to the federal guidance from the Cybersecurity and Infrastructure Security Agency (CISA) [see page 3 for March 23 guidance]. If an employee fits into any of the CISA Guidance’s critical infrastructure workforce categories, then they qualify for a Critical Sector worker exemption.
      • Second, if an employee does not fall into one of categories listed in CISA Guidance, please carefully review the Governor’s Executive Order 20-20 for further guidance and additional categories of Critical Sector exempt workers.
      • Third, you can also determine eligibility for at Critical Sector worker exemption by searching by your 4-digit NAICS industry code. If an industry description is marked as YES in the Critical Industry column, then a worker in that industry qualifies for a Critical Sector worker exemption.
    • If an employee qualifies for a Critical Worker exemption based on the CISA Guidance, Executive Order 20-20, or the NAICS industry code list, and they cannot work from home, then they can leave home to work. Please note that Executive Order 20-20 requires all employees who can work from home to do so, even if they are eligible for a Critical Sector worker exemption. If an employee does not fit into any of the Critical Sector worker categories, then they must remain at home as directed in Executive Order 20-20.
    • If you still have questions about whether your business’s workers are eligible for the Critical Sector work exemption after utilizing the resources above, please fill out this form, and the State will work with agency subject matter experts to review and respond as quickly as possible with a determination.
  • Executive Order 20-40, which provides a limited first step in the process of safely returning to work, beginning only with workers at non-Critical Sector industrial, manufacturing and office-based businesses that are non-customer facing.There are 2.6 million Minnesotans working right now. EO 20-40, developed in consultation with thousands of business leaders, labor leaders, and public health experts, will allow around 20,000 businesses and roughly 80,000 – 100,000 workers to go back to work beginning on Monday, April 27.

    • In order to reopen, EO 20-40 requires these business to do three things:

      1. Create and share with their employees a COVID-19 Preparedness Plan that explains the actions they are taking to ensure social distancing and keep workers safe. The Department of Labor and Industry has created a template plan, which is optional for businesses to use as a starting point. COVID-19 Preparedness Plan template – Word document | PDF
        • Checklist guidelines for creating a COVID-19 Preparedness Plan – Word document | PDF
      2. Engage in health screening of employees each day at arrival Recommend using the MN Health Screener
      3. Continue to use telework whenever possible
  • Executive Order 20-46 allows hospitals and care providers the flexibility to temporarily hire qualified professionals who would otherwise be required to obtain a license from the Minnesota Board of Medical Practice or the Minnesota Board of Nursing to provide intensive care services and meet the healthcare needs of Minnesotans.
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3. Federal Law Changes – COVID-19; HIPAA, Medicare

  • HHS Waiving Penalties for certain HIPAA violations. Effective immediately, the HHS Office for Civil Rights (OCR) will exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency.
  • Medicare/CMS Telehealth Rules  Effective for services starting March 6, 2020 and for the duration of the COVID-19 Public Health Emergency, Medicare will make payment for Medicare telehealth services furnished to patients in broader circumstances. This includes expanding the definition of originating site to include professional services furnished in all eligible health care settings, and in the patient’s residence.  Temporary guidelines expanding the technology that can be used to furnish an eligible telehealth service.
  • Federal Families First Coronavirus Response Act. The law expands the FMLA’s reach to provide job protection and partial wage replacement for impacted employees. The law provides a new paid sick leave entitlement to impacted employees.  The law provides tax credits to employers paying out leave benefits. The law allots $1 billion for unemployment insurance benefits. COPY OF EMPLOYER NOTICE POSTER IS HERE.
    • Employment–Paid Leave – Effective April 1- December 31, 2020. Generally provides that employees of *covered employers* are eligible for the following types of paid time off from work due to to the COVID-19 crisis:
      • Two weeks/up to 80 hours paid sick leave at regular rate of pay if employee is quarantined or experiencing COVID-19 symptoms
      • Two weeks/up to 80 hours paid sick leave at 2/3 regular rate of pay if employee is unable to work because of need to care for another as follows:
        • someone who is subject to quarantine,
        • a child (under 18) whose school or child care is closed due to COVID-19, and/or
        • the employee is experiencing a substantially similar condition as specified by particular governmental agencies.
      • Up to an additional 10 weeks of paid expanded family and medical leave at 2/3 regular rate of pay, where an employee (who has been employed for at least 30 days) is unable to work due to need to care for a child whose school or child care provider is closed due to COVID-19.
      • *Note that covered employers means fewer than 500 employees, and businesses with fewer than 50 may be exempt from the school closing/child care unavailability provisions if this would jeopardize business viability.*
    • More details, payment calculations, FAQs, scenarios, and definitions here and here and here and here
  • Pandemic Unemployment Assistance Program
    • Summary of Program: Congress authorized a new Pandemic Unemployment Assistance program that covers those who do not qualify for regular Unemployment Insurance benefits, such as independent contractors and self-employed people. The program was authorized but must be created by the states, so Minnesota must build out this program before it can be implemented. More information will be available soon, however it could be several weeks before payments begin.
    • Why this might make sense for you: If you are an independent contractor or self-employed person who would not typically be eligible for unemployment benefits, but you have lost income due to the COVID-19 pandemic.

4. LOANS

  • Small Business Emergency Loans MinnesotaSmall Business Emergency Loans for Minnesota Business Owners. (1) Range from $2,500 to $35,000 and will be based on the firm’s economic injury and the financial need. (2) Interest free. (3) Paid back monthly over five years and the first payment will be deferred six months with potentially partial forgiveness.
  • SBA Disaster Loans – Federal. COVID-19 – Economic Injury Disaster Loan Program. Variable Interest Rates and pay back terms.
  • Small business COVID-19 Emergency Loan Checklist and Guide.
  • SBA Paycheck Protection Program (PPP)
    • Summary of Program: The SBA PPP is a new federal $350 billion loan program at SBA for small businesses, self-employed people, and gig workers to help them from going under due to the COVID-19 pandemic. If employers maintain payroll, the loans would be forgiven.
    • Why this might make sense for you: If a self-employed person needs compensation or a business or nonprofit needs funds for employee compensation, including: salaries, wages, commissions, or similar compensation; cash tips or equivalents; vacation, parental, family, medical, or sick leave; payment required for providing group health care benefits (including insurance premiums); payment of retirement benefits; and payroll taxes. Funding may also be used for payment of interest on mortgage obligations, rent, utilities, and interest on pre-existing debt obligations
  • SBA Debt Relief
    • The Small Business Administration (SBA) is providing a financial reprieve to small businesses during the COVID-19 pandemic.
    • SBA will pay the principal, interest and fees to banks on behalf of businesses for current SBA loans and new loans issued up until September 27, 2020. Businesses should ask their lender for this relief.
      • Note: This includes SBA export financing programs (i.e. EWCP, Export Express, and the International Trade Loan)
    • For existing SBA Disaster Loans (home and business), payments of these loans have been automatically deferred by the SBA. For more information, visit their SBA Debt Relief page or contact your local office.

5. Unemployment Insurance – Minnesota COVID-19

  • Unemployment Guidance for Employers and Employees. Relieves taxpaying employers of benefit charges associated with the COVID-19 pandemic. This means that your UI tax rate will not increase if your workers collect unemployment benefits because of COVID-19.
    • See also the Unemployment Insurance Shared Work Program. The Shared Work program offers an alternative to layoffs for employers facing a temporary downturn in business. Administered by DEED’s Unemployment Insurance Division, the program allows employers to divide available hours of work among a group of employees instead of implementing a full layoff. These employees may then receive partial unemployment insurance benefits while working reduced hours. The purpose of Shared Work is to avoid a layoff, not to subsidize wages. Shared Work can help employers avoid the difficulties that can go along with a layoff. If employees keep working during a temporary slowdown, employers can more quickly gear up when business conditions improve. Learn more about the Shared Work Program on the Unemployment Insurance Division’s website.
  • Unemployment Guidance for Self Employed and Independent Contractors Pandemic Unemployment Assistance (PUA) benefits are specifically for self-employed, independent contractors, and others unemployed as a direct result of COVID-19 who are not eligible for regular unemployment benefits or extended UI benefits in Minnesota or any other state. This means you must apply for regular unemployment benefits before you can qualify for PUA benefits. You can apply for regular unemployment benefits either online or by phone.

    Once we determine that you are not eligible for a regular or extended benefit account, we will automatically review your account to determine if you are eligible for PUA. You will not need to complete a separate application for PUA. If you need help in a language other than English, interpreters are available by phone. Internet translation tools are available on our Other languages page if you would like to apply online. You do not have to apply for the $600 additional compensation. You will automatically receive this CARES Act benefit if we determine that you are eligible for any unemployment benefit program.

6. Employment Guidance

7. Taxes

8. Other Resources

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