HEALS Act Highlights for Aging Services

Legislation | July 28, 2020 | by Mollie Gurian, Jill Schumann

Senate Republicans introduced the HEALS Act package on July 27. This article summarizes key provisions as they relate to aging services. 

On July 27, 2020, the Senate introduced the HEALS Act – the Health, Economic Assistance, Liability Protection and Schools Act. The package was introduced as a series of individual bills originating in the Appropriates, HELP, Finance, Small Business and Judiciary Committees. In addition to bills introduced by the Chairs of those Committees, Senator Cornyn introduced the SAFE TO WORK Act which addresses liability protections; Senator Tim Scott introduced a bill to increase the tax deductibility of business meals from 50 to 100%, and Senator Romney introduced the TRUST Act which instructs Congress to consider mechanisms to address the sustainability of mandatory programs like Medicare and Social Security. This article outlines key provisions of the HEALS Act of interest to LeadingAge members.

No Dedicated Fund for Aging Services

The package includes $25 billion for the provider relief fund to be split among all eligible providers, and which is only a fraction of the $100 billion dollars that LeadingAge believes aging services providers need. We were glad to see that the Medicare Accelerated and Advanced payment program repayment timeline was extended though given the financial strain aging services providers are under, we believe that more relief, such as loan forgiveness, is warranted. We remain concerned that the many settings in which older adults live are not receiving the resources they need.

COVID-19 Testing

The package contains $16 billion dollars for testing. This amount is insufficient; LeadingAge asked for $10 billion for aging services providers alone. Furthermore, the testing money is for states; there is no mention of a national testing strategy which we believe is critical.

PPE Incentives

The package incentivizes PPE production in America via tax credits and directs that the National Strategic Stockpile be refilled and provides funds for that. Additionally, there is a refundable payroll tax credit equal to 50% of an employer’s “qualified employee protection expenses,” such as testing for COVID-19, PPE, cleaning expenses, and a few other qualified expenses. While we appreciate that Senate Republicans are trying to incentive PPE production in America and want to refill the National Strategic Stockpile, this package does not require immediate action to manufacture and distribute sufficient quantities of PPE to meet the needs of this crisis. Aging services providers need PPE now, not a hope that companies will act on a tax credit. The Defense Production Act needs to be invoked with funding from Congress to ensure that more expansive PPE production begins as quickly as possible.

Needs of Older Adults in Affordable Housing Not Yet Addressed

The Senate package does not address the needs of more 750,000 older adults in HUD federally-subsidized and privately-owned housing programs. Affordable senior housing providers have been hemorrhaging funds since March to prevent the virus from harming residents and staff. Yet, the Senate bill does nothing to help ensure apartment communities, home to residents with incomes below $14,000 a year, can be kept clean and disinfected while allowing residents to access the services they need to remain in independent housing. We expect much more from Congress and urge inclusion of $300 million for Service Coordinators, $50 million for wireless internet for telehealth and to combat social isolation, and $845 million to pay for the cleaning, PPE, services, staffing, security, and more that affordable senior housing communities continue to provide as the virus rages on. The Senate bill does not extend the evictions moratorium for nonpayment of rent that expired on July 25. Twenty-two percent of older adult households are renters, most of them with vastly lower incomes than homeowners. Without an extension of the evictions moratorium, the Senate bill places these older adults at immediate risk of housing instability.

Nursing Home Provisions

The package does contain several specific provisions addressing the impact of Coronavirus on nursing homes, including authorizing CMS to establish federal strike teams to supplement state strike teams. We note that CDC/CMS have already established and deployed such teams. There is $150 million dollars appropriated for CMS to use for strike teams for resident and employee safety in skilled nursing facilities and nursing facilities including activities to support clinical care, infection control and staffing. If enacted, CMS would provide a report to the Committees on Appropriations in both chambers 30 days after enactment outlining a plan for executing strike team efforts, including how safety and infection control measures will be assessed, how facilities will be chosen, and the frequency at which nursing homes would be visited.

CMS is further instructed to: provide training on infection control; enhance diagnostic testing; and promote the implementation of televisitation. These provisions are all helpful, but will require serious funding to be meaningful, and do not address the key issues of PPE, a national testing strategy and funding for loss of revenue and increased expenses.

Liability Provisions

The liability provisions limit the types of cases that can be brought to gross negligence or willful misconduct and that the gross negligence or willful misconduct of the defendant caused the injury. The bill preempts and supersedes less stringent state laws, and sets a statute of limitation at a year to bring a case. The definition of “health care provider” is broad and likely includes the whole continuum except housing, though housing would be covered under the general business protections. Acts, omissions, or decisions resulting from a resource or staffing shortages shall not be considered gross negligence or willful misconduct. This would preempt and supersede state laws unless the state law is stricter or limits liability protections.

Telehealth Flexibility Extensions

We are pleased that the package includes an extension to the current telehealth flexibilities through Dec 2021 (or the end of the public health emergency if it extends beyond that date). The package also orders a MedPAC report on the impact of telehealth flexibilities on access, quality, and cost by July 1, 2021. It requires that HHS post data on the use of telehealth throughout the pandemic and provide legislative recommendations to Congress. This policy ensures that patients are not left without access to care while giving Congress time to weigh data and recommendations on the future of telehealth in the Medicare program. The addition of home health providers to those that can be fully reimbursed for telehealth services was not included in the bill. It is critical that home health providers be added to the provider types that can be reimbursed for utilizing telehealth especially as the Congress is considering the future of telehealth beyond the emergency.

Loan Provisions

Proposed changes to the PPP are headed in the right direction but don’t do enough to help aging services on the front lines. The proposed expansion of allowable PPP costs may have limited utility to aging services providers that have spent down all or most of their loan, as well as those who still have PPP funds but are subject to the 60% payroll rule. While the opportunity for some borrowers to receive a second PPP loan is promising, only a limited subset of aging services providers would qualify, since they tend to experience increased costs- not just reduced revenues. There is also a new longer-term, repayable loan for organizations to support financial stability over time. While promising, its eligiblity criteria may restrict most aging services providers from qualifying. And, providers operating multiple sites still have no relief under the PPP if they have more than 500 employees. 

Medicaid Not Mentioned

In contrast to the HEROES Act, which increases FMAP, includes Maintenance of Effort provisions, delays MFAR, and increases HCBS payments, HEALS is silent on Medicaid. HEALS does address some funding and reauthorization of Older Americans Act provisions.

Staffing Provisions

Several provisions relate to staffing issues, but much needed pandemic or heroes pay for frontline workers is not included. There are $500M in Department of Labor grants to states for dislocated worker employment and training activities to lead to employment in in-demand sectors or occupations, including health care and direct care. HEALS provides support to child care providers so they can continue to serve working parents and provide safe environments. The proposal does not include exclusion/exemption for health care employees for either FMLA or paid leave.