Indiana Family and Social Services Administration Issues its Own COVID-19 Related Guidance Impacting Long-Term Care Facilities

Quarles & Brady’s Long-Term Care Practice Group has been monitoring updates that impact long-term care providers. In addition to guidance issued by the Centers for Medicare and Medicaid Services (CMS) and the Indiana State Department of Health (ISDH), the Indiana Family and Social Services Administration (FSSA) has also issued guidance applicable to long-term care providers that are Medicaid or Medicaid Waiver providers.

In response to the impact of COVID-19 on health care providers, Indiana Medicaid has loosened the restrictions surrounding telemedicine. Indiana Health Coverage Programs (IHCP) issued a guidance bulletin on March 19, 2020 that is applicable to all IHCP-enrolled providers, including Medicaid Waiver providers. The ability to practice via telemedicine is effective retroactive to March 1, 2020, and is in effect for the duration of the Indiana Governor’s Declaration of Public Health Emergency for Coronavirus Disease 2019 Outbreak. Reimbursement for telemedicine is allowed at the same rate as in-person services.

In its bulletin, IHCP sets the following parameters:

• All services delivered through telemedicine are subject to the same limitations and restrictions as if delivered in person. For example, all services rendered must be within the provider’s applicable licensure and scope of practice.
• Patient consent to receiving services via telemedicine is required. The provider must document the services, indicating that the services were rendered via telemedicine, including the location of the provider and the patient, and must also document the consent. IHCP is clear that the patient and/or the provider can be located in their home at the time of service.
• Due to the federal waiver of certain Health Insurance Portability and Accountability Act (HIPAA) requirements, telemedicine services may be provided using any technology that allows for real-time interactive consultation between the provider and the patient. Examples provided in the IHCP Bulletin include computers, phones, or television monitors. The federal Office for Civil Rights (OCR) provides more specific examples of HIPAA-compliant video communication products, such as Skype for Business/Microsoft Teams, Amazon Chime, and GoTo Meeting, among others. IHCP’s bulletin extends only to voice-only communication, and not emails or text messages.
• Certain procedures and providers that require physical interaction are excluded from this telemedicine guidance. Examples include durable medical equipment (DME) and home medical equipment (HME) providers, surgical procedures, laboratory services, and radiological services.

FSSA has issued a few additional guidance documents that are consistent with what ISDH has provided in response to the COVID-19 pandemic. For example, FSSA issued the “Division of Aging COVID-19 Revised Guidance for Visitation” on March 15, 2020, which links to ISDH’s and CMS’s visitation guidelines. Our Long-Term Care Group has prepared a more detailed analysis on the CMS visitation restrictions here. FSSA issued “Guidance for Assisted Living/Residential Care Facilities Mitigation Strategies” which also largely mirrors CMS and ISDH guidance, referencing Centers for Disease Control and Prevention (CDC) guidance and strategies related to personal protective equipment (PPE), staffing recommendations to limit the number of essential staff who are those individuals who provide direct medical care (e.g., nurses and home health aides), and dedicating a particular unit and health care professionals for residents who are positive with COVID-19. FSSA’s Chief Medical Officer also provides helpful recommendations in response to COVID-19, including the recommendation that all long-term care facilities utilize the CDC’s “Coronavirus Disease 2019 (COVID-19) Preparedness Checklist for Nursing Homes and other Long-Term Care Settings.” Our Long-Term Care Group’s discussion on similar guidance by ISDH, including a summary of FSSA’s Chief Medical Officer’s recommendations, is available here.

Quarles and Brady’s Health Law Team is continuously monitoring the ever-changing landscape of the COVID-19 pandemic, including as it relates to long-term care providers. For more information, please contact your Quarles & Brady attorney or:

• Randall R. Fearnow: (312) 715-5194 / randall.fearnow@quarles.com
• Jaya F. White: (312) 715-5242 / jaya.white@quarles.com
• Ryan L. Torres: (317) 399-2813 / ryan.torres@quarles.com