Tuesday, April 07, 2020

COVID-19 Pandemic - West Virginia and Federal Health Care and Legal Resources UPDATED

Prepared and updated by Bob Coffield, Flaherty Sensabaugh Bonasso PLLC
LAST UPDATED: 4/7/2020

We all are working to adapt to the volatile and fluid nature of the changes brought on by the COVID-19 pandemic. I hope this post finds you well, at your home and social distancing. Mountaineers are always free (montani semper liberi), but today and going forward please follow the "stay at home" order issued by the State of West Virginia. Let's bend and flatten this curve West Virginians along with the help of all humans around our globe.

It remains difficult to grasp and stay up to date on the fluid nature of the changing information relevant to our health care and business clients. The legal and regulatory landscape is in constant flux and a lot of questions are arising from our clients. As our health care law team works remotely to stay connected, share information, and attempts to analyze the most recent changes from the various state and federal agencies which regulate and oversee health care providers and the industry, we have pulled together this "resource" page post. We are regularly checking these various aggregation points for new or updated information that are specifically related to West Virginia. We thought it would be valuable to have an access point where not only we can go, but the general public can go, to access the latest information. 

We will be adding and updating these resources as we go forward. If you know of any resource that we have not included, please leave a comment or send us an email. We will assess the information and consider adding it to the resource materials.

COVID-19 Data Resources and Real Time Tracking of the COVID-19 Crisis:
  • The COVID Tracking Project - Most Recent Data (by state)The COVID Tracking Project collects information from 50 US states, the District of Columbia, and 5 other US territories to provide the most comprehensive testing data we can collect for the novel coronavirus, SARS-CoV-2. We attempt to report positive and negative results, pending tests, and total people tested for each state or district currently reporting that data.
State of West Virginia Health Care Regulatory Agencies and Departments (including a short description of the scope of each agency/department along with a list of current COVID resources):
  • Office of Health Facility Licensure and Certification (OHFLAC)OHFLAC’s primary functions are processing licensure application and investigating complaints filed against its regulated health care facilities. OHFLAC supervises eight programs: Administration; Behavioral Health Program; Chronic Pain Management Clinic Program; Life Safety Program; Medicare/Hospital Program; Nurse Aide Program; Nursing Home Program; and Assisted Living Program.
    • 3/12/2020 announcement in response to COVID-19, including reporting requirements for all West Virginia providers to report "any postive COVID-19 illness in patients/residents/clients and employees to the local health department and OHFLAC". The notification requirements and information that must be reported are listed on this announcement.
  • Office of the West Virginia Attorney GeneralThe Office of the Attorney General is responsible for prosecuting and defending legal actions on behalf of the State, and for ensuring that the rights of the State and its citizens are protected in matters before the circuit courts of this State, the West Virginia Supreme Court of Appeals, and all federal courts. The Attorney General is entrusted with enforcing the laws of the State as they relate to consumer protection, unfair trade practices, civil rights, and other important areas
    • No current information/updates.
  • West Virginia Board of Occupational Therapy: The West Virginia Board of Occupational Therapy regulates and licenses persons providing occupational therapy services to the general public in the State of West Virginia. The Board's purposes are to protect consumers and promote quality of occupational therapy services, and to assure the highest degree of professional care and conduct on the part of occupational therapist and occupational therapist assistants. 
    • West Virginia Board of Physical Therapy: The WVBOPT is a state regulatory board created by the WV Legislature to regulate the practice of physical therapy and athletic training in order to protect the public from the unauthorized, unqualified and unregulated practice of physical therapy. The WVBOPT is a part of the Executive Branch of the Government which enforces laws
    • West Virginia Registered Nursing Board: The WV RN Board promotes and protects public health, safety, and welfare through the regulation of registered professional nurses, advance practice registered nurses and dialysis technicians. The WV RN Board also oversees the prescriptive authority privileges through collaborative practice agreements.
      • COVID-19 Information. Per this summary, the West Virginia RN Board by vote, has suspended some rules to expedite licensure. These rule suspensions are TEMPORARY in nature and all suspended requirements will have to be fulfilled after the emergency order is lifted.
        • Bullet Points for Board Voted Suspended Rules On 3/20/2020:
          • A Criminal Background Check (CBC) will still be required. However, if the facility where the applicant would go is closed and there isn’t one within a 50 mile radius then the applicant does NOT have to get the CBC. The applicant would have get the CBC as soon as other fingerprinting resources are available or within 30 days of the lifting of the State of Emergency, whichever comes first.
          • The temporary permit (TP) is extended for more than 90 days. Therefore, the applicant would be able to have a temporary permit for more than 90 days. This applies to both exam applicants and endorsement applicants.
          • Verifications do not have to be requested by applicants through NURSYS. The Board will utilize NURSYS and individual state websites.
          • For limited prescriptive authority, the applicant does not have to provide documentation of pharmacotherapy in the clinical practice.
          • Reinstatement applicants will not have to provide continuing education.
        • Bullet Points from the Governor’s Signed Executive Order on 3/23/2020 (but see Executive Order 12-20 issued 3/26/2020, which rescinded the suspension of certain requirements):
          • If a person is licensed in another state as a RN or APRN a WV license is NOT required to practice in WV as long as disciplinary action hasn’t been taken or there is none pending.
          • There is no renewal of licenses.
          • CRNAs can administer anesthesia without supervision. Suspension Rescinded by Governor 3/26/2020
          • APRNs with prescriptive authority do not need a collaborative physician. Suspension Rescinded by Governor 3/26/2020 
          • No limitation on prescriptive writing privileges for APRNs with prescriptive authority as to prescriptive formulary limitations, prescriptive refill and supply limitations. Suspension Rescinded by Governor 3/26/2020
          • Continuing education not required for APRNs. Suspension Rescinded by Governor 3/26/2020
          • Disciplinary timelines for hearings are waived and may be conducted by telephone at the discretion of the agency.
    • West Virginia State Board of Examiners for Licensed Practical Nurses: The WV LPN Board is a legally constituted agency of State government established by the West Virginia Legislature. The Board promotes and protects the public health, safety and welfare through licensure of practical nurses
      • Notice: The West Virginia LPN Board is instituting policies of social distancing to make our workplace as safe as possible. Staff who are able to perform their duties from home are working remotely. For a quicker response please use the message center in the nurse portal.
    • West Virginia State Tax Department: The State Tax Department’s primary mission is to collect and accurately assess taxes due to the State of West Virginia in support of State services and programs.
      • Coronavirus 2019 (COVID 19) Response
      • 3/25/2020 letter by Senate President Carmichael and House Speaker Hanshaw among other West Virginia Legislators requesting Governor Justice to issue an Executive Order extending the deadline for filing state income tax returns in West Virginia from April 15 to July 15. (via @BradMcElhinny tweet).
      • In his press conference held at 3:00 PM, March 25, Governor Jim Justice stated, “I have instructed State Tax Commissioner Dale Steager to extend the West Virginia state tax filing and payment deadline to July 15, 2020, to align with the Federal tax filing deadline.” The Administrative Order will be posted on the State Tax Department’s website at tax.wv.gov by end of day tomorrow, March 26.
    West Virginia Hospitals and Health Care Systems Information: 
    • Charleston Area Medical Center (CAMC)
    Federal Legislation and Information: 
    • CMS Medicare and Medicaid Programs; Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency (Interim Final Rule with comment period), issued 3/26/2020 and applicable beginning on 3/1/2020. This interim final rule with comment period (IFC) gives individuals and entities that provide services to Medicare beneficiaries needed flexibilities to respond effectively to the serious public health threats posed by the spread of the 2019 Novel Coronavirus (COVID-19). Recognizing the urgency of this situation, and understanding that some pre-existing Medicare payment rules may inhibit innovative uses of technology and capacity that might otherwise be effective in the efforts to mitigate the impact of the pandemic on Medicare beneficiaries and the American public, we are changing Medicare payment rules during the Public Health Emergency (PHE) for the COVID-19 pandemic so that physicians and other practitioners, home health and hospice providers, inpatient rehabilitation facilities, rural health clinics (RHCs), and federally qualified health centers (FQHCs) are allowed broad flexibilities to furnish services using remote communications technology to avoid exposure risks to health care providers, patients, and the community. We are also altering the applicable payment policies to provide specimen collection fees for independent laboratories collecting specimens from beneficiaries who are homebound or inpatients (not in a hospital) for COVID-19 testing. We are also expanding, on an interim basis, the list of destinations for which Medicare covers ambulance transports under Medicare Part B. In addition, we are making programmatic changes to the Medicare Diabetes Prevention Program (MDPP) and the Comprehensive Care for Joint Replacement (CJR) Model in light of the PHE, and program-specific requirements for the Quality Payment Program to avoid inadvertently creating incentives to place cost considerations above patient safety. This IFC will modify the calculation of the 2021 and 2022 Part C and D Star Ratings to address the expected disruption to data collection and measure scores posed by the COVID-19 pandemic and also to avoid inadvertently creating incentives to place cost considerations above patient safety. This rule also amends the Medicaid home health regulations to allow other licensed practitioners to order home health services, for the period of this PHE for the COVID-19 pandemic in accordance with state scope of practice laws. We are also modifying our under arrangements policy during the PHE for the COVID-19 pandemic so that hospitals are allowed broader flexibilities to furnish inpatient services, including routine services outside the hospital.
    • KFF Medicaid Emergency Authority Tracker: Approved State Actions to Address COVID-19. This page aggregates tracking information on approved Medicaid emergency authorities to address the COVID-19 Coronavirus emergency. We currently include details on Section 1135 waivers and 1915 (c) Waiver Appendix K strategies, but will update soon to add additional emergency authorities.
    Other Guidance, Resources and Information: 

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