On March 14, 2020, the U.S. House of Representatives voted 363 to 40 (with
one representative voting present) to pass
H.R. 6201 – Families First Coronavirus Response Act. The bipartisan legislation, negotiated between House Speaker Nancy Pelosi
and Treasury Secretary Steven Mnuchin, provides certain sick leave
benefits, expands food assistance and unemployment benefits, and revises
certain tax provisions related to the same. It also provides additional
appropriations for efforts in the Coronavirus Preparedness and Response
Supplemental Appropriations Act (P.L. 116-123).
If it becomes law, the legislation also would provide free novel
coronavirus (COVID-19) testing for most healthcare consumers, something
House Democratic leadership and President Donald Trump have stated is an
important national priority. The legislation would also make changes to
existing laws that could affect healthcare providers. Here are five key
things for healthcare providers to know about the legislation.
Emergency OSHA Standards. The legislation would require
promulgation of new Occupational Safety and Health Administration emergency
temporary standards for employers in the healthcare sector within one month
of enactment. It would require the secretary of labor to issue permanent
OSHA standards addressing these issues within six months of the temporary
standards. These emergency OSHA standards would require the development and
implementation of a comprehensive infectious disease exposure control plan
to protect healthcare workers from exposure to the pathogens that cause
COVID-19. As drafted, the standards would be based on the CDC’s 2007 “
Guideline for Isolation Precautions: Preventing Transmission of
Infectious Agents in Healthcare Settings,” which was drafted in response to the severe acute respiratory syndrome
outbreak (SARS) but never officially finalized into regulatory guidelines.
The standards will also apply to (i) hospitals and skilled nursing
facilities that are run by state governments that are otherwise excused
from OSHA standards and (ii) employees in other sectors that the Centers
for Disease Control and Prevention or OSHA designate as being at elevated
risk of COVID-19 exposure.
COVID-19 Diagnostic Tests at No Cost to Most Patients.
Private health plans, including group health plans and health insurance
issuers offering group or individual health insurance (e.g., grandfathered
health plans), Medicare, Medicare Advantage, Medicaid, CHIP plans, TRICARE
and Indian Health Services would be required to cover testing for COVID-19
without cost or beneficiary cost-sharing. The legislation also ensures
healthcare consumers will not be charged for the applicable medical office
or hospital visit occurring in conjunction with the COVID-19 diagnostic
test. Commercial health plans, including Medicare Advantage plans, would
not be allowed to require prior authorization or utilization management to
receive the COVID-19 diagnostic test. Furthermore, the legislation would
provide $1 billion for the National Disaster Medical System to reimburse
healthcare providers that provide these tests to the uninsured and increase
the federal share of Medicaid and CHIP expenditures for these tests.
Notably, the legislation, as currently drafted, does not extend coverage to
any follow-up medical care that may be required based on COVID-19 test
Liability Protection for Personal Respiratory Protective Devices. The legislation adds certain personal respiratory protective devices as
covered countermeasures under the Public Readiness and Emergency
Preparedness (PREP) Act Declaration for emergency use during the COVID-19
pandemic. Under the PREP Act Declaration, those who produce, manufacture,
distribute, administer or proscribe certain covered countermeasures
(including pandemic or epidemic products, security countermeasures, and
certain drugs, biologics or devices authorized for emergency use), are
immune from suit and liability under both federal and state law with
respect to claims arising out of the administration or use of such device.
The legislation would add to this immunity personal respiratory protective
devices that are approved by the National Institute for Occupational Safety
and Health and used in response to the COVID-19 outbreak before Oct. 1,
2024. This immunity may provide additional protection for manufacturers
that need to increase production quickly for those individual patients who
need devices in response to the COVID-19 outbreak.
Increased Medicaid Spending and Allotments. As
currently drafted, the legislation increases the federal medical assistance
percentage (FMAP) for Medicaid by 8 percent for each state and certain
territories for the duration of the COVID-19 public health emergency. To
receive these additional funds, states must maintain eligibility standards
that are no less restrictive than those currently in place on the date of
enactment. The legislation would also increase Medicaid allotments for U.S.
Sick and Family Leave Benefits. As noted above, the
legislation would create new emergency sick and family-care leave benefits
for employees of certain smaller employers. McGuireWoods’ labor and
employment team is actively preparing guidance for employers facing these
changes. Healthcare providers will want to review this guidance carefully
as the new benefits could challenge their operations if employees are
self-isolating or caring for their family members in light of the COVID-19
pandemic. Additionally, employers will want to consider plans to ensure
care providers assist their communities during this outbreak.
Next Steps. House leadership is expected to prepare a technical corrections bill.
Thereafter, the U.S. Senate could take up the measure. President Trump has
indicated that he would sign the legislation.
Please contact the authors for additional guidance on how this legislation
could affect the delivery of patient care and the operation of healthcare
providers. McGuireWoods has published
additional thought leadership related to how companies across various
industries can address crucial Coronavirus-related business and legal