|
Hospital Assessment Moves Forward
Late last week, HFS began the informal approval process with the federal government regarding revisions to the state's hospital assessment program. As we have previously told Healthcare Council members, this is a must-pass piece of legislation as the current assessment expires at the end of the current fiscal year. Ordinarily the feds would require a statute in place before they grant approval, but obviously these are unchartered waters for both the state and federal governments.
New Healthcare Executive Order - Sweeping Regulatory Suspensions for Hospitals
Yesterday the Pritzker Administration issued another COVID-19-related executive order. Here is a topline summary:
The proclamation grants the Illinois Department of Public Health wide latitude in suspending certain requirements found in the
Hospital Licensing Act, the Emergency Medical Services (EMS) Systems Act, the Department of Public Health Powers and Duties Law, and the Illinois Adverse Health Care Events Reporting Law of 2005.
Suspends of the following provisions of the Hospital Licensing Act,
- 10 ILCS 85/6.09. Notice of discharge; aged patients and patients with disabilities on Medicare.
- 210 ILCS 85/6.09b. Patient notice of observation status.
- 210 ILCS 85/6.14g. Reports to the Department; opioid overdoses.
- 210 ILCS 85/6.22. Arrangement for transportation of patient by an ambulance service provider.
- 210 ILCS 85/10. Board creation; Department rules.
- 210 ILCS 85/10.8. Requirements for employment of physicians.
- 210 ILCS 85/10.10. Nurse Staffing by Patient Acuity.
- 210 ILCS 85/11.8. Closed captioning required.
Suspends provisions of the H
ospital Report Card Act, (except Section 35 - Whistleblower Protections) and Section 40 (Private Right of Action), and the corresponding regulations set forth in Title 77, Part 255 of the Illinois Administrative Code, are hereby suspended.
Suspends the following provisions of the Department of Public Health Powers and Duties Law:
20 ILCS 2310/2310-218(c). Phlebotomy on Children and Adults with Intellectual and Developmental Disabilities.
20 ILCS 2310/2310-540. Uterine cytologic examinations for cancer. This provision is suspended only to the extent it requires every hospital licensed by the State of Illinois to offer a uterine cytologic examination for cancer to every female in-patient 20 years of age or over unless considered contra-indicated by the attending physician or unless it has been performed within the previous year, and to the extent it requires the hospital to maintain records to show either the results of the test or that the test was not applicable or that it was refused.
Suspends all reporting deadlines set forth in the Illinois Adverse Health Care Events Reporting Law of 2005, but does not suspend the obligation to report, only the timing of such report. The deadlines shall resume upon the termination of all Gubernatorial Disaster Proclamations.
Suspends The Emergency Medical Services (EMS) Systems Act to the extent necessary to permit EMS personnel or services to transport patients to and alternate care facility (ACF) authorized by this Executive Order.
Hospitals licensed by IDPH, or the State of Illinois, through one of its agencies or in cooperation with one or more federal or local government bodies, may establish an ACF to provide room and board, nursing, and diagnosis or treatment to COVID-19 patients, or to non-COVID-19 patients in order to increase regional hospital capacity to respond to COVID-19 pursuant to emergency rules promulgated by IDPH. The Hospital Licensing Act, is suspended in its entirety as applicable to the ACFs, provided the ACFs meet the standards set forth in emergency rules promulgated by the IDPH.
Work Comp Emergency Rule
This week the Illinois Workers' Compensation Commission issued an emergency rule that would significantly shift the workers' compensation burden of proof in COVID-19 cases. While the Chamber's Employment Law Council handles workers' compensation issues, we wanted to share Employment Law Council Executive Director Jay Shattuck's analysis of the rule for those who may have an interest.
Shattuck Analysis
The Commission approved changes to the emergency rule that was advanced on Monday. The changes expand the application of the rule to additional entities not covered by Monday's version of the rule. The changes, in addition to those entities covered in Section 1 Part 12 of the Governor's Executive Order 2020-10, adds parts 7, 8, 9, 10 and 11. Broadly these new parts include:
7. Healthcare and Public Health Operations;
8. Human Services Operation;
9. Essential Infrastructure
10. Essential Government Functions; and
11. Businesses Covered by this Executive Order: "any for-profit, non-profit, or educational entities, regardless of the nature of the service, the function it performs, or its corporate or entity structure."
The result of the revised emergency rule is that any Illinois employer, private, public for-profit or non-profit, whose worker is exposed to COVID-19 now has the burden shifted upon it to prove that the COVID-19 injury, disease, or incapacity did not occur at the workplace.
Other concerns are:
Arising Out of & in the Course of Employment:
The original provision to create the rebuttable presumption has a couple of clarifications but continues to provide that "if the petitioner's injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus during the Gubernatorial Disaster Proclamation 2020-38 and any subsequent COVID-19 disaster proclamations, the exposure will be rebuttably presumed to have arisen out of and in the course of the petitioner's COVID-19 First Responder or Front-Line Worker employment"
Causal Connection:
The emergency rule goes on to provide that the petitioner "will be rebuttably presumed to be causally connected to the hazards or exposures of the petitioner's COVID-19 First Responder or Front Line Worker employment.
Rule Attacks "Increased Risk" Doctrine:
Our read is that the emergency rule will result in undermining Illinois' long standing application of the law's doctrine of "increased risk" which states a workers' compensation claimant must show that they were at greater risk of injury than the public because of the requirements of their job. Replacing this doctrine would be "positional risk," a standard where an employee is entitled to workers' compensation benefits if his or her job was responsible for him or her being at the location of the accident.
IWCC Exceeds Its Authority with Emergency Rule:
Illinois current law provides a rebuttable presumption already for first responders. Subsection (f) of Section 6 of the Workers' Compensation Act (820 ILCS 305/6) provides a rebuttable presumption to firefighters, emergency medical technicians, emergency medical technician-intermediates, advanced emergency medical technicians, or paramedics for any bloodborne pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis, or cancer resulting in any disability (temporary, permanent, total, or partial). It also provides a presumption for these workers for any hernia or hearing loss. A similar provision is provided in the Occupational Diseases Act (820 ILCS 310/1). The Commission is exceeding its authority by expanding the scope of the rebuttable presumption to workers who are not identified under the statute.
While current statute may provide workers' compensation or occupational disease benefits based on the facts of the claim of the petitioner regardless of their profession, trade or worker classification, the statute does not provide a rebuttable presumption to workers other than those delineated in the statute.
This issue is clearly in flux, but we will keep you informed on regular basis of important developments.
COVID-19 Budget Hit Previewed
The Governor's Office of Management and Budget issued new estimated budgetary impacts for the current fiscal year, as well as Fiscal Year 2021 this week as a result of the circumstances surrounding COVID-19. GOMB currently estimates a budget reduction of $2.7 billion this year and $4.6 billion for next year. This obviously puts considerable pressure on the administration as they work to not only finish this year but craft a budget before June 30 (not to mention that the proposed budget for next year includes passage of the progressive income tax constitutional amendment in the Fall.
Working Groups Finalized
The Illinois House finalized their membership for legislative working groups on a variety of different topics this week. The Senate had previously completed membership assignments and has begun meetings. Notable House Working Groups include Access to Healthcare, Healthcare & Human Services and Mental Health & Addiction. This is of course in addition to ongoing budget conversations that will be driving many of the policy decisions necessary before the end of the fiscal year.
US Chamber Releases Initial Thoughts on Returning to Work
This week, our partner the U.S. Chamber of Commerce, unveiled a starting point for policymakers as they consider reopening the nation. Check out the full report here.
Department of Insurance Has First Prior Authorization Form Meeting
Today DOI convened its first meeting regarding the implementation of P.A. 101-0463, which requires the creation of a universal prior authorization form for insurers for use with prescription drugs. The discussion was primarily focused on goals and the path forward to develop a form by July 1. Next steps include looking at other states that have adopted uniform forms and a request for the submittal of suggestions or recommendations at least a week before the next meeting. Future meetings will be advertised on the Department's website, but the next meeting is scheduled for 11 am on May 15. Meetings are open to the public via a conference call line.
JCAR Update
DHS adopted an emergency amendment to General Administrative Provisions (89 IAC 10; 44 Ill Reg 6107) effective 4/6/20 for a maximum of 150 days. An identical proposed amendment appears at 44 Ill Reg 5991. The emergency and proposed rules allow applicants for cash assistance, medical assistance, or the Supplemental Nutrition Assistance Program (SNAP) to verbally assent to an application by telephone if they cannot sign an application in person or submit an electronic signature meeting the normal security requirements. DHS states that this emergency rule allows Family Community Resource Centers to handle increased requests for assistance during the COVID-19 pandemic.
|
