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Potential Policies Impacting PM&R in the Next COVID-19 Stimulus Package

Aug 03, 2020

In Congress, both parties are working toward an agreement on the next COVID stimulus package before the upcoming August recess, but with each passing day, the prospects for agreement seem to decrease. In May, House Democrats passed the HEROES Act, an 1800+ page proposal expected to cost nearly $3.5 trillion over the next ten years. However, the Republican-led Senate did not consider the bill, and instead paused to evaluate the impact of previous stimulus packages before attempting another Congressional response. In late July, Senate Majority Leader Mitch McConnell (R-KY) released a series of bills serving as the Republican’s opening bid for bipartisan negotiations, collectively referred to as the HEALS Act and totaling approximately $1 trillion in cost. However, internal disagreements among Republicans and staunch opposition from the Democrats make it likely that an eventual compromise package will look quite different from either side’s initial offers. Negotiations are shifting daily, but for now, both parties generally seem to agree that another major bill is necessary to combat the ongoing economic and public health impacts of the COVID-19 pandemic.

Below, we outline some of the major policies most relevant to Academy members and what the outlook could be for the next bill. In late June, AAPM&R sent a letter to Congress advocating for additional aid to physiatrists in a fourth COVID-19 legislative package.

Liability Protections

Republicans under Sen. McConnell have long expressed that their top priority for the next package is instituting widespread liability shields as they push for the country to reopen. Under the Republican proposal (the SAFE TO WORK Act, introduced by Sen. John Cornyn (R-TX)), businesses, nonprofits, educational institutions, employers, and health care providers would receive extremely broad protection from liability for claims relating to potential COVID infection. Specifically, the bill would create an exclusive federal cause of action for both exposure and medical liability-related claims, ensuring that state laws would be preempted and that the federal court system would hear any COVID lawsuits.

These federal suits would only provide a narrow lane for plaintiffs to receive relief, requiring that they must provide “clear and convincing evidence” that the defendant failed to take reasonable steps to follow public health guidelines and was either grossly negligent or exercised intentional misconduct in committing an act to spread COVID infection. This is a significantly higher standard of proof than typical civil cases. Plaintiffs would also need to prove that the defendant’s actions actually caused their exposure and infection with COVID, a bar that will be hard to meet, especially when there is still relatively little knowledge regarding how to trace a patient’s contraction of the virus.

Additionally, the legislation includes specific protections from medical liability. Personal injury suits related to any medical services provided during the public health emergency (PHE) and through October 1, 2024 would be similarly barred in state courts and limited to federal courts, and plaintiffs would face the same burden of a “clear and convincing” standard of evidence for gross negligence or willful misconduct by a health care provider. While the proposal has significant support within the Republican caucus, Democrats have so far strongly opposed the far-reaching liability provisions.  Democrats are particularly opposed to changes proposed to the civil rights protections under the Americans with Disabilities Act (ADA) which appeared unexpectedly in the bill. It is likely that an eventual package will still include liability protections, but the provisions in the SAFE TO WORK Act will have to be significantly modified if it is to achieve bipartisan consensus.

AAPM&R has advocated for medical liability protections throughout the pandemic. Our efforts have focused on ensuring clinicians caring for COVID-19 patients are protected, but also ensuring that all physicians are protected as the nation grapples with overflowing facilities, delaying “non-essential” procedures, and newly expanded telehealth capabilities.

Telehealth Expansion

During the PHE, Congress and CMS have greatly expanded the provision of telehealth to Medicare beneficiaries by a much wider range of providers and for many more services than were previously allowed. However, the majority of these flexibilities are authorized under legislation that is currently tied to the declared PHE period or waivers of regulations that will also expire with the PHE. There is widespread agreement in Congress that at least some of the current telehealth authorities should be extended, but how and when that may happen is still unclear.

Several legislators have proposed bills that would evaluate the current use of telehealth under the PHE to better understand its impact on beneficiaries and the Medicare program, with the intent of eventually enshrining some of these policies permanently in statute. Additionally, the Republican HEALS Act includes a proposal to extend CMS’ authority for telehealth waivers at least through the end of 2021 and expand such flexibilities for Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) for five years after the end of the PHE. However, Congress will have to come to an agreement on any action to permanently allow telehealth to be conducted more broadly once the PHE has ended. Currently, it is unclear whether lawmakers will attempt to address permanent telehealth policies in the next COVID package or postpone the debate to future legislation.

Funding for Testing and PPE

While both parties recognize a need for significant new funding for testing, contact tracing, and virus surveillance, as well as additional funds for health care provider relief, the two proposals differ greatly in the amounts allocated to these categories. Currently, the Democrat-penned HEROES Act includes $75 billion for these efforts under a required national system, while the Republican proposal would provide $16 billion for testing and tracing but no mandate for a federal program.

The Academy has pushed for the federal government to ensure that hospitals and practices have adequate access to Personal Protective Equipment (PPE). Under the HEROES Act, Congress would improve the domestic production of PPE and expand the authorities of the Strategic National Stockpile (SNS), as well as creating a federal Medical Supplies Response Coordinator. The HEALS Act would specifically direct the SNS to partner with manufactures and distributors of PPE to expand the reserve amounts in the Stockpile and require the federal government to source PPE 100% domestically within five years (incentivizing production with significant tax credits). 

Economic and Employment Proposals

An eventual compromise package seems likely to include some extension of the federal unemployment benefits provided under the CARES Act in March, though these funds will probably fall below the $600/week in extra weekly benefits that expired at the end of July. Additionally, individuals will likely see an additional direct stimulus payment, likely at the same income levels under the CARES Act ($1,200 for earners below $75,000 annually, with phased reductions at higher income levels). Also expected are more funds for both the Provider Relief Fund (which has provided grants to providers and the Paycheck Protection Program, but the amounts of such funding will be settled during bipartisan negotiations.

The negotiations for the next COVID package have been predictably unstable, and the White House in particular has floated the possibility of addressing key policies, including unemployment benefits, as standalone bills. Currently, leaders in both parties remain committed to a full-fledged stimulus package and will continue working towards a compromise in the coming weeks, perhaps into September.