Annual Advisory Board Roundtable

COVID-19’s Tectonic Legal Shifts for HME

Legal expert Jeffery Baird discusses how the Public Health Emergency has already changed the legal landscape, and what else might be in store for HME providers.

Introduction: Each fall, members of HMEB’s Editorial Advisory Board share their time and expertise to examine the various factors that will impact providers in the coming months. In this first installment, Jeff Baird, Esq., chairman of the Health Care Group at law firm Brown & Fortunato, P.C., discusses regulatory and legal changes providers should expect:

Because of COVID-19, the legal landscape for HME suppliers during the latter part of 2020 and moving forward is littered with uncertainty and possibility. There exist continued negotiations regarding additional government aid and relief programs to assist providers/suppliers during the pandemic. There is uncertainty surrounding how long existing waivers and regulatory relaxation may last. The inevitability of investigations and criminal charges for those defrauding the government and patients has already started. HME suppliers need to be aware of each of these issues and prepare for a 2021 that will likely be anything but normal.

We know that Congress is continuing to debate and politicize additional business relief programs, like an additional round of PPP funding. What seemed likely to occur a few months ago is a great unknown now as the U.S. has shifted to presidential election mode. While there are still efforts at additional programs, cooperation and compromise may be impossible during what will likely prove to be one of the most contentious election cycles ever seen. Consistent with this theme, HHS has further delayed the reporting requirements of the Provider Relief Fund, now pointing to an early 2021 reporting date. Unfortunately, at this point, it seems likely that additional programs will also be delayed in favor of election cycle political brinksmanship.

HHS, Congress and President Trump (via executive order) provided an unprecedented number of waivers and regulatory framework changes to allow new and existing health care providers/suppliers to continue to do business during the pandemic. One example of these changes includes the rapid expansion of telehealth, including the types of providers who may provide telehealth services, the types of telehealth services that may be billed, the technology that may be used during a telehealth visit and the locations where both patients and providers may be located during a visit.

It is not yet clear how many of these changes may be rolled back or when such a rollback may occur, but all providers/suppliers should be on the lookout. Other important waivers that are already seeing regulatory drawbacks include procedures for new provider enrollment as well as requirements for surveys and audits. If the pandemic subsides, we can expect increasing surveys and audits moving forward.

About the Author

Jeffrey S. Baird, Esq. is chairman of the Health Care Group at law firm Brown & Fortunato, P.C., where he represents pharmacies, HME companies, and other healthcare providers throughout the United States. He can be reached at (806) 345-6320 or jbaird@bf-law.com.

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