COVID-19 Legal Guidance for Healthcare Professionals and Healthcare Providers in Minnesota
Last update 4.1.2020 – 8am CST
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.
Minnesota Department of Human Services now has temporary authority to waive or modify requirements during the COVID-19 pandemic. The following changes have been made, some pending federal approval:
- Preserving health care coverage for Children’s Health Insurance Program, Medical Assistance and MinnesotaCare
- Waiving certain licensing regulatory actions and extending licenses for family child care, child and adult foster care, and community residential and treatment settings
- Suspending application requirements for economic assistance and housing programs
- Suspending referral requirement for Minnesota Family Investment Program
- Waiving certain requirements for Child Care Assistance Program payments and procedures
- Allowing foster care caseworker visits by video
- Suspending new actions for child support remedies
- Allowing phone or internet visits for waiver programs
- The commissioner waived certain requirements for face-to-face visits for seniors and people with disabilities receiving long-term services and supports. For people receiving home and community-based services under Medical Assistance, this means that assessments for needs can be done by phone or online connection, and that case managers can conduct phone or online visits. The affected programs are Alternative Care (AC), Brain Injury (BI) waiver, Community Alternative Care (CAC) waiver, Community Access for Disability Inclusion (CADI) waiver, Developmental Disabilities (DD) waiver, Elderly Waiver (EW), Essential Community Supports (ECS), and Federal OBRA Level II Evaluations. Personal Care Assistance (PCA) programs include assessments but do not require case management. This change also applies to people served under Rule 185 case management who choose not to waive the annual reassessment.
- Waiving work requirements for certain SNAP participants
- Suspending sanctions for some Minnesota Family Investment Program and Diversionary Work Program participants
- Expanding access to telemedicine services for Children’s Health Insurance Program, Medical Assistance and MinnesotaCare enrollees (CV16). The commissioner eased certain limits on receiving care and services through telephone and video visits that can instead be provided safely and effectively without a face-to-face visit by:
- Expanding the definition of telemedicine to include telephone calls so providers who have a telemedicine agreement in place with DHS can serve patients through telephone visits;
- Allowing a provider’s first visit with a patient to be conducted on the phone;
- Allowing Children’s Health Insurance Program (CHIP), Medical Assistance or MinnesotaCare enrollees to have more than three telemedicine visits in a week; and
- Requiring managed care plans to follow these policies.
These measures help enrollees and providers follow social distancing best practices. DHS is also considering how best to provide flexibility for greater use of communications technology in specific settings and for certain types of treatment, including group therapy and residential treatment settings.
12. To assure the DHS Licensing is not interfering with the work providers are doing to care for their clients or service recipients during this pandemic, the Department of Human Services is suspending or modifying most licensing enforcement activity until May 1, 2020, as follows:
- Suspending routine licensing and certification reviews. (under Minnesota Statute 245A, 245H.05)
- Continuing to respond to critical incidents involving high risk of harm to clients or allegation of abuse and neglect — and prioritizing on-site visits as needed on a case-by-case basis. In addition, DHS Licensing staff, county licensing staff and private licensing agencies will communicate with and provide technical assistance to providers to the greatest extent possible, using remote technologies that support social distancing and community mitigation.
- Conducting on a case-by-case basis inspections for licensing applications, pre-licensure visits and change of premises inspections (under 245A.04). This is in order to prioritize enabling programs to provide additional capacity. DHS Licensing staff, county licensing staff and private licensing agencies will conduct these activities to the greatest extent possible using remote technologies that support social distancing and community mitigation.
- Suspending payment of outstanding fines previously ordered (under 245A.07)
- Suspending the issuance of fix-it tickets for licensed family child care providers and licensed child care centers (under 245A.065) and providing technical assistance
- Suspending the issuance of correction orders (under 245A.06) and providing technical assistance
- Suspending the issuance of fines under 245A.07
- Suspending the issuance of licensing actions other than Temporary Immediate Suspensions under 245A.07, subdivision 2 unless necessary to enforce pandemic or licensing regulations as necessary to enforce the health and safety of those receiving care or services.
- Automatically extending for three months licenses for family child care, child and adult foster care and community residential settings that are set to expire during March, April or May 2020; any training, re-licensing or documentation requirements are extended. (245A.04, 245A.16 )
- Extending training timelines for existing staff and license holders that expire during the declared peacetime emergency and cannot be met. Further direction on orientation and training will be coming.
13. In response to the CDC public health strategies to reduce community transmission of COVID-19, DHS is temporarily allowing the provision of remote support for the services listed below. Delivery of remote support must be real-time, two-way communication (i.e. phone calls, or other technology medium) with the person. The provision of services through remote support must be performed within:
- the scope of the service,
- the person’s support plan, and
- the amount of service authorized.
The lead agency must document in the person’s support plan why the increase in services or change in delivery of in-person services to remote support are needed related to COVID-19.
List of services where remote support may be delivered
24 hour emergency assistance; Case management; Day Support (formerly DTH); Employment development; Employment exploration; Employment support; Extended personal care services that only require verbal cueing and/or instruction; Foster care; Family training and counseling; Independent living skills training; Individualized home supports; Integrated Community Support; Personal Support; Positive supports; Prevocational Services; Residential habilitation/supported living services; Residential habilitation/in-home family support; Specialist services
If you are an existing provider and these services are not in your MHCP Provider Record you can request to add these to your record by submitting a request via MPSE or complete and fax the DHS-6638 paperwork. Because of COVID-19, providers may contact the Provider Helpdesk at 651-431-2700 once you submit a request if you would like your request to be expedited due to access issue.
Minnesota Executive Orders. Most executive orders relate to shutting down certain businesses and activities, and expanding aid. Healthcare facilities are exempt from shutting down. 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.
Eligibility for Critical Sector Worker Exemption
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 we will work with agency subject matter experts to review and respond as quickly as possible with a determination.
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.
Home Health Agencies: Guidance for Infection Control and Prevention Concerning Coronavirus Disease 2019 (COVID-19) in Home Health Agencies
UCare Minnesota to follow CMS guidance for private plans and DHS guidance for MHCP plans. UCare will be waiving the three times a week limit for medically necessary telehealth services
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.
- 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.
Minnesota Department of Health COVID-19 factsheets, statistics and information. Health Questions for Patients and Staff: 651-201-3920 or 1-800-657-3903. This hotline is staffed by the MN Department of Health and will be operating from 7AM-7PM.
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.
Health Insurance. If you are uninsured right now, you can get covered through MNsure. Apply on MNsure.org by April 21. In response to the potential growth of coronavirus (COVID-19) cases, MNsure is offering a special enrollment period to eligible Minnesotans.
Small Business Emergency Loans Minnesota. Small 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.