For more information about this blog post, please contact Khaled J. Klele, Ryan M. Magee, or Labinot Alexander Berlajolli.

New Jersey Extends Criminal and Civil Immunity to Facilities:

On Saturday, April 11, the New Jersey Department of Health (“NJDOH”) extended civil immunity to healthcare facilities triaging COVID-19 patients, such as hospitals.  The State already extended civil immunity to practitioners pursuant to Executive Order No. 112 as we stated in our previous Update. Concerned with the scarcity of medical equipment, including ventilators, the NJDOH stated in Executive Directive 2020-006 that it is in the “public interest to implement measures that accomplish the goal of ensuring that all healthcare facilities that may face a shortage of ventilators or other scarce resources adopt and adhere to medically ethical and appropriate guidelines for the allocation of ventilators, ICU/critical care beds, and critical care staff, and develop a structure to effectuate those guidelines.”  In other words, the State is concerned with how hospitals will decide how to allocate medical equipment among patients should medical equipment, such as ventilators, become scarce, and the potential liability that may flow from those decisions.

NJDOH Executive Directive 2020-006 extends civil liability immunity to hospitals regarding such decision-making as long as hospitals follow the State’s Allocation of Critical Care Resources During a Public Health Emergency (the “Policy”).  The Policy sets forth criteria to assist hospitals in determining how to best use medical equipment if the equipment becomes scarce.  The Directive states that “A healthcare facility that adopts the Department of Health's model policy Allocation of Critical Care Resources During a Public Health Emergency, as well as the healthcare facility's agents, officers, employees, servants, representatives and volunteers, shall not be civilly liable for any damages arising from an injury to a patient caused by any act or omission pursuant to, and consistent with, such policy. Such immunity supplements any other immunities and defenses that may apply.”

On the same date, Attorney General Gurbir S. Grewal issued an AG Enforcement Directive No. 2020-03 extending criminal immunity to healthcare facilities, again, as long as they follow the Policy.

CMS Distributes $30 Billion in Grants to Providers Under the CARES Act

On March 27, 2020,  President Trump signed the CARES Act, which provides $100 billion in relief funds to hospitals and other healthcare providers to support healthcare-related expenses or lost revenue because of COVID-19.  The Trump Administration began distributing the first $30 billion in grants – not loans – on April 10, 2020.  This is different from the Accelerated and Advance Payment Program because this $30 billion is a grant and not a loan.

All facilities and providers that received Medicare fee-for-service (FFS) reimbursements in 2019 are eligible for this initial $30 billion grant distribution.  A provider’s portion of the initial $30 billion is calculated as follows:  Provider’s 2019 Medicare FFS divided by $484 billion and then multiply that ratio by $30 billion.  All payments will automatically show up in the accounts of providers based on their Taxpayer Identification Number with the “HHSPAYMENT" as the payment description.

As a condition to receiving these funds, you must execute an attestation within thirty days of receiving payment.  The attestation will be sent this week but it will state, among other things, that the provider will not seek collection of out-of-pocket payments from a COVID-19 patient that are greater than what the patient would have otherwise been required to pay if the care had been provided by an in-network provider.  You must also accept the terms and conditions.  If you do not return the payment within 30 days, then CMS will view that as acceptance of the terms and conditions.  If you do not wish to comply with the terms and conditions, then you must do the following: contact HHS within 30 days of receipt of payment and then remit the full payment to CMS as instructed.

The Trump Administration is also determining how to disburse the remaining $70 billion.  It is believed that there will be targeted distributions that will focus on providers in areas particularly impacted by the COVID-19 outbreak and providers requesting reimbursement for the treatment of uninsured Americans, among others.

Many providers should have already received their grants under the CARES Act.  If you do not receive your payment this week, then immediately contact your MAC.