Coronavirus Related Legal Considerations for the Senior Housing and Skilled Nursing Industries

The Senior Housing Industry has been uniquely impacted by the coronavirus pandemic. In addition to the various logistical, practical, and educational measures senior housing communities should be taking to monitor, respond to and mitigate the coronavirus pandemic, for which recommendations can be found with the American Health Care Association,  Centers for Disease Control and Prevention, Argentum, and American Seniors Housing Association, there may be legal considerations for senior housing communities as well, including but not limited to:

• State licensing requirements for healthcare professionals: Subject to certain limitations, many state medical licensure laws provide exceptions for in-state licensing for physicians and other healthcare professionals in emergency situations, and many states have expressly waived certain licensing requirements. See further guidance here.
  
  
• Utilization and disclosure of PHI pursuant to HIPAA:  HIPAA has a number of exceptions to the requirement that covered entities obtain written individual authorization before using and disclosing PHI that may be relevant to business associates or covered entities treating patients with coronavirus. See further guidance below:
  
  • Managing the Commercial Impact of the Coronavirus: Implications for Health Care 
  • COVID-19: HHS Permits Business Associates to Use and Disclose PHI for Public Health and Health Oversight Purposes Without Amending BAAs
    
    
• Obligations of and implications for landlords and tenants under leases: Landlords and tenants should review the force majeure, notice, insurance, and other relevant provisions under their leases, begin communication with their tenants, landlords, and/or lenders, and update their “form leases” to address the coronavirus and other epidemics. See further guidance here.
  
  
• Application and implications of the Families First Coronavirus Response Act (“FFCRA”): The FFCRA took effect on April 1, 2020, and, among other things, requires covered employers to provide varying amounts of paid leave in the form of Emergency Paid Sick Leave and Emergency Family and Medical Leave. The FFCRA also provides certain fully refundable tax credits giving covered employers dollar-for-dollar reimbursements for the costs of providing covered employees with paid leave under the FFCRA’s Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. See further guidance below:
  
  • UPDATE: Families First Coronavirus Response Act Is Enacted Into Law 
  • Department of Labor Issues Temporary Rule Regarding Families First Coronavirus Response Act
  • IRS Issues Guidance on FFCRA Paid Leave Tax Credits – Updated as of April 24, 2020
    
    
• Application and implications of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”): The CARES Act creates a $349 billion loan program for small businesses, to provide loans that can be forgiven through a process that incentivizes companies to retain employees. These Paycheck Protection Program loans will be made on a first-come, first-serve basis, and the SBA’s affiliation rules generally apply for determining eligibility, with said affiliation rules waived for only certain specific categories of business. The CARES Act also provides certain fully refundable tax credits available to eligible employers equal to 50% of qualified wages paid to an employee in a particular calendar quarter. See further below:
  
  • The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) Is Enacted into Law
  • SBA Loans Under the CARES Act - Updated as of April 25, 2020
  • IRS Issues Guidance on Employee Retention Credits Under CARES Act – Updated as of April 24, 2020
  • Applied for a PPP Loan? Simple Steps Now to Avoid Government Scrutiny Later - Updated as of May 4, 2020
    
    
• Impacts for Post-Acute Providers from the CARES Act, CMS Blanket Waivers, and the CMS Interim Final Rule: Significant changes to standard conditions of payment and participation for post-acute providers have been made to ease burdens faced by post-acute care providers and increase access to care for patients due to coronavirus. CMS has also issued blanket waivers under the Stark physician self-referral law that require physicians that refer designated health services to a provider with whom they have either a compensation arrangement or ownership relationship to meet a fair market value or other designated exception for those financial arrangements to be appropriate.  See further guidance below:
  
  • COVID-19: Notable Impacts for Post-Acute Providers from the CARES Act, CMS Blanket Waivers, and the CMS Interim Final Rule 
  • COVID-19: CMS Issues Temporary Blanket Waivers of Sanctions for Stark Violations; Health Care Providers Gain Needed Flexibility to Deal with Physician Arrangements
  • COVID-19: “Hospitals Without Walls” and “Patients Over Paperwork” - Key Takeaways For Hospitals From CMS’ Additional Blanket Waivers 
    
    
• Regulations and statutes regarding preparation and response (including with regard to PPE): Under the General Duty Clause of the OSH Act of 1970, all employers have a duty under the law to maintain a safe workplace for employees. Employers should be aware of OSHA’s standards on PPE, bloodborne pathogens, and sanitation, among others. Employers should also be aware of other regulations and statutes that may come into play when implementing their preparation and response plans. See further guidance below:
  
  • Managing the Commercial Impact of the Coronavirus: OSHA Provides Guidance Regarding Coronavirus Preparation and Response
  • OSHA Guidance Allows Alternatives in Light of N95 Shortage Due to Coronavirus

It is important for senior housing communities to take additional steps now in order to mitigate their risk of suffering negative impacts from the coronavirus. For more information about recommended steps, please contact your Foley relationship partner. For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the CDC and the World Health Organization.

Foley has created a multi-disciplinary and multi-jurisdictional team, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries.  Click here  for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form.