Federal and State Regulatory and Legislative Issues

Congress passed and President Trump sign into law The Coronavirus Aid, Relief and Economic Security (CARES) Act. Click here for a summary of some of the provisions of the legislation that may be most applicable to surgeons and their practices. Please note: Information regarding the application process, including implementation of how to apply for any financial assistance, has not been determined yet. We will include updates regarding this as soon as it is available.

Relief for small businesses run by physicians was included in the $2 trillion legislation Congress passed. The CARES Act modifies the 7(a) Small Business Administration (SBA) loan program in the following ways:

1. Setting eligibility requirements at 500 employees or fewer
2. Allowing 501(c)(3) non-profits to be eligible
3. Increasing the maximum loan amount to $10 million
4. Expanding allowable uses to include payroll support, employee salaries, and debt obligations

The modifications in the CARES Act also provide a process for loan forgiveness for certain payroll costs as well as mortgage, rent, and utilities.

The CARES Act includes $100 billion for health care services related to the COVID-19. Specifically, the funds are to prevent, prepare for, and respond to coronavirus, domestically or internationally, for necessary expenses to reimburse, through grants or other mechanisms, eligible health care providers for health care related expenses or lost revenues that are attributable to coronavirus.

The Budget Control Act of 2011 (P.L. 112–2) requires mandatory across-the-board reductions in federal spending, also known as sequestration. When applied to Medicare, the sequester reduces payments to providers by 2 percent. The CARES Act temporarily lifts the sequester on Medicare from May 1 through December 31, 2020. Because of this provision, physicians treating Medicare beneficiaries will see payment rates increase by 2 percent during this time period.

The CARES Actextends federal Good Samaritan civil liability protections to interstate volunteers who are licensed in their home state to physicians who provide volunteer medical services during the public health emergency related to COVID-19.

The CARES Act also contains several telehealth provisions, which include the following:

• Reauthorizes Health Resources and Services Administration (HRSA) grant programs that promote the use of telehealth technologies for health care delivery, education, and health information services
• Allows high deductible insurance plans with a health savings account to cover telehealth services prior to a patient reaching the deductible
• Removes restrictions that limited Medicare telehealth service situations where the physician or other professional has treated the patient in the past three years
• Allows federally qualified and rural health centers to provide telehealth services to Medicare patients not located at the clinic
• Expands telehealth services to include home dialysis, home care, and hospice care.

The American College of Surgeons (ACS) and 22 other surgical groups that comprise the Surgical Coalition sent letters of support March 24 to the Senate and House of Representatives urging inclusion of the Immediate Relief for Rural Facilities and Providers Act of 2020 in the third COVID-19 relief package. Sponsors of the legislation were Sens. Michael Bennet (D-CO) and John Barrasso (R-WY), and Reps. Phil Roe, MD (R-TN), and Kim Schrier, MD (D-WA). The legislation proposed to provide emergency grants to physicians’ practices to alleviate strain resulting from the pandemic by making funds available for meeting office payroll expenses. The bill also provided for emergency low interest loans to enable practices to maintain or resume operations and restore the economic viability of the practice. In addition, the legislation proposed to provide financial resources to strengthen rural facilities during the public health crisis. Read the House letter. Unfortunately, the act was not included in the third COVID-19 relief package. The ACS will continue to advocate for its inclusion in any subsequent legislation dealing with the pandemic.

To increase the number of health care professionals available to respond to the COVID-19 public health emergency, the Centers for Medicare & Medicaid Services has eased Medicare Part B enrollment requirements for physicians and nonphysician practitioners (NPPs). The agency established toll-free hotlines at each Medicare Administrative Contractor (MAC) to allow providers to initiate temporary Medicare billing privileges, CMS also has waived several screening requirements—such as application fees, fingerprint-based criminal background checks and site visits—to enroll as a participant in the Part B program on a provisional basis.

MACs will attempt to screen and enroll providers by phone and will notify providers of their approval or rejection of temporary Medicare billing privileges during the phone conversation. Physicians and NPPs who fail the screening requirements will be denied temporary Medicare billing privileges and will not be reimbursed for services furnished to Medicare beneficiaries. Upon the lifting of the public health emergency declaration, providers must submit a complete enrollment application to establish full Medicare billing privileges.

Providers seeking temporary billing privileges should only call the hotline for their MAC. A full list of the toll-free hotline telephone numbers for each MAC is available in the agency’s COVID-19 Medicare Provider Enrollment FAQ document. For more information, contact Lauren Foe, American College of Surgeons Senior Regulatory Associate, at lfoe@facs.org.