Welcome to the second quarter of 2020! The coronavirus pandemic has changed the way physicians interact with their families, practice medicine and spend money. Perhaps you’ve been on the front lines in the critical care units. Perhaps you’ve been seeing patients by telemedicine or fielding lots of phone calls and trying to figure out how to get paid for what you do. Perhaps you’ve been isolating at home with not a lot to do, spending more time with family and doing some online CME. The question on your mind might be: When this pandemic ends, what position will I be in? What will I do moving forward?

Background. 2020 started with unsettling news of viral outbreaks. The Pennsylvania Department of Health (DOH) first published a Health Advisory of an outbreak of pneumonia of unknown etiology (PUE) in Wuhan, China, on Jan. 9, 2020. The next day brought a Health Advisory of elevated influenza activity, with influenza B/Victoria and A (H1N1)pdom9 being the predominant viruses. On Feb. 9, one month after news of the PUE in Wuhan, secretary of the DOH, Dr. Rachel Levine, published a Health Advisory transmitting Interim U.S. Guidance for Risk Assessment and Public Health Management of Healthcare Personnel with Potential Exposure in a Healthcare Setting to Patients with Novel Coronavirus (2019- nCoV). Within a month, Pennsylvania announced its first presumptive cases of 2019-nCoV. A week later, Gov. Tom Wolf closed school for a period of 10 days beginning March 16, 2020. He later closed them for the rest of the school year. He also closed “non-essential” businesses (March 17) and, a week later, all “non-life sustaining” businesses. Physicians were faced with decisions about seeing patients, but it soon became clear that any care that wasn’t a potential emergency should be deferred.

As this issue of the Bulletin goes to press, the COVID pandemic marches on, with new hot spots emerging – fortunately not Allegheny County, although there are more than enough cases to have people worried. Stories of overwhelmed healthcare systems flood the airways, but here at home, we find outpatient centers closed, specialists seeing only truly emergent cases, and all “elective” cases cancelled. Elective cases apparently include breast cancer staging. While necessary to stop the spread of the pandemic, patients wait for an appointment that is rescheduled to May, and then rescheduled to June or July.

Challenges for physicians. The COVID pandemic has brought both shared and distinct challenges to physicians based on their specialties and locations of practice. For example, most healthcare providers have faced shortages of face masks and other personal protective equipment (PPE). 

Certain surgeons and office-based physicians have both seen non-emergency patients and procedures be deferred until the end of the pandemic. With this decrease in volume, physicians worry about paying staff – many of whom have had to be furloughed – paying ongoing expenses and otherwise keeping their doors open for emergency patients that cannot be handled via telemedicine now, and for all patients in the future.

Independent practices are particularly hard hit, but even the Mayo Clinic has been furloughing employees. Meanwhile, emergency department physicians and critical care unit physicians are facing COVID head on, risking their health and their lives to treat patients with COVID and its complications.

Relief. Relief has come from the federal government in three forms (so far): the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which benefits small businesses; the Families First Coronavirus Response Act (FFCRA); and Medicare blanket waivers.

The CARES Act. The CARES Act provides a multitude of resources for small businesses, the most popular of which is a non-repayable grant from the federal government. The CARES Act stipulates that this money is to be used “to prevent, prepare for, and respond to Coronavirus … for necessary expenses to reimburse … health care providers for eligible healthcare-related expenses or lost revenues that are attributable to coronavirus.” Because the entire healthcare system has been dramatically impacted by the coronavirus, the purpose is quite broad since many providers are taking care of significantly more patients, those who have been diagnosed as well as those that haven’t been diagnosed – but all are impacted by the pandemic.

The Centers for Medicare and Medicaid Services (CMS) also states that “This quick dispersal of funds will provide relief to both providers in areas heavily impacted by the COVID-19 pandemic and those providers who are struggling to keep their doors open due to healthy patients delaying care and cancelled elective services.” CMS therefore aims to have the funds help providers/suppliers who are directly and indirectly impacted by this COVID-19 pandemic, not just those who are directly taking care of COVID-19 patients.

CMS states that “All facilities and providers that received Medicare fee-for-service (FFS) reimbursements in 2019 are eligible for this initial rapid distribution.” The intent is for every entity that bills Medicare to receive its portion of the funds. Each provider has 30 days to accept the money and sign an agreement with CMS. CMS will be providing additional information regarding the terms of the agreement, and they should be reviewed before deciding to retain the funds.

The second most popular resource is the Paycheck Protection Program (PPP). Under the PPP, which also is part of the CARES Act, physician practices and other small businesses (those with under 500 employees) can work with a Small Business Administration (SBA) approved lender and receive a loan for up to 250% of its average monthly payroll costs, including compensation, group health care benefits, and state or local taxes assessed on employee compensation. This amount excludes employee or owner compensation over $100,000 annually and federal taxes.

Physician practices will be able to apply if they were harmed by COVID-19 between February 15, 2020, and June 30, 2020. PPP is retroactive to February 15, 2020, in order to help bring workers who may have already been laid off back on to payrolls. Loans are available through June 30, 2020.

The loan may be forgiven if it is used for approved expenses, such as compensation, healthcare benefits, rent, covered utilities and certain interest. Entities must apply for forgiveness and demonstrate appropriate use of PPP funds. If PPP funds are used for other purposes, the principal and interest may be deferred for up to a year after the loan is disbursed. The loan may be for a maximum term of 10 years, with a maximum interest of 4% and no loan fees or prepayment fees. SBA lenders may charge an application fee.

FFRCA. The FFRCA requires most employers to provide paid leave to employees who cannot work due to the COVID pandemic. If the employee is experiencing COVID symptoms or is required to isolate or quarantine due to a federal, state or local law, a covered employee must be paid at the regular rate of pay for two weeks (80 hours). If the employee needs to care for another with COVID or does not have childcare due to COVID closures, a covered employee must be paid at 2/3 of the regular rate of pay for two weeks (80 hours). Physician practices and small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern. However, given the availability of the PPP program, many small businesses may not qualify for this exemption.

In addition, FFRCA permits “an employer of an employee who is a health care provider or an emergency responder … to exclude such employee” from the emergency paid sick leave and paid family leave provisions of the act. These must be individual determinations and consultation with a qualified attorney is strongly recommended.

CMS waivers. CMS has stepped up and waived a considerable amount of regulations under their “patients before paperwork” initiative during the COVID pandemic. While many of the waivers are aimed at hospitals inundated with COVID patients, there are some provisions that benefit physicians for the duration of the public health emergency as well. These include: telehealth may be used to provide an additional 80 services, including telehealth to patients at home, and in nursing and assisted living facilities; physicians may provide telehealth services from their home without listing their home address as the “place of services” (some enrollment requirements with this option, however); hospitals may provide benefits (meals, etc.) to medical staff; at teaching hospitals, residents may be supervised virtually via audio/visual technology and many other supervision rules have been relaxed; “face to face” evaluation may be performed via telehealth for inpatient rehabilitation, hospice and home health; physicians can use various “apps” for telehealth; physicians may perform remote monitoring of COVID and chronic conditions; physicians may be permitted to perform telehealth services out of state under certain conditions, including that it complies with the state’s emergency plan; and other providers may be permitted to perform at “top of licensure” in order to expand the number of healthcare providers available to provide services for patients with COVID.

Conclusion. The federal government is making efforts to lessen the impact of the COVID pandemic on hospitals and small businesses, including independent physician practices and their respective employees; however, it is expected that this pandemic will cause lasting and far-reaching effects. As physicians struggle to get through the limitations on practice now, they also must take time to prepare for the easing of restrictions on travel and interaction and, ultimately, the end of the pandemic.

For example, there may be a huge demand for physician services. How will you prioritize who gets seen for non-emergent issues? Will you proactively call patients with chronic illness to come in when you can see patients? How long will you call in prescription refills without a visit?

Also, if the restrictions are eased earlier than public health officials might advise, what protective measures will you take in your practice? Do you have enough face masks and other PPE? How and when will you bring back employees? Will you bring all of your employees back?

The issues raised in this article have both state and federal implications. Be sure to consult with appropriate healthcare and employment attorneys to ensure that you understand what your responsibilities are if you take advantage of any relief programs.

DISCLAIMER: This article is for informational purposes only and does not constitute legal advice. You should contact your attorney to obtain advice with respect to your specific issue or problem.

Author profile
Beth Anne Jackson, Esq.

Ms. Jackson is a shareholder in the Health Care Practice Group of Brown & Fortunato, P.C., which is headquartered in Amarillo, Texas, and serves health care providers nationally. She is licensed in both Pennsylvania and Texas and maintains an office in the greater Pittsburgh area.