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Elder Care and Elder Law Updates Regarding COVID-19

By Anthony B. Ferraro

On March 13, 2020, President Trump issued a national emergency declaration due to the COVID-19 pandemic. Technically speaking this declaration resulted in the issuance of what is called a 1135 Waiver, which allows Centers for Medicare and Medicaid Services (CMS) to waive many rules and regulations, including conditions of participation for hospitals and long-term care facilities as well as other medical providers. Below is an overview of some other updates:

♦ The Social Security Administration is closing its field offices. But payments to beneficiaries should not be affected.

♦ CMS sent recommendations to hospitals and other medical providers that all elective surgeries, nonessential medical, surgical and dental procedures be delayed due to the outbreak.

♦ CMS is temporarily loosening restrictions for (i) Medicare beneficiaries to use telehealth services for common office visits, mental health counseling, and preventive health screenings and (ii) HIPAA violations in connection with telehealth measures (by waiving penalties for such violations if the providers act in good faith through everyday communication technologies).

♦ CMS is waiving the requirement for a 3 day prior hospitalization for coverage of Skilled Nursing Facility (SNF) stays. For beneficiaries who exhausted their SNF benefits, it authorizes renewed coverage without starting a new benefit period.

♦ CMS is suspending nonemergency health inspections across the country.

♦ CMS is restricting all visitation, except in end-of-life and other compassionate care situations (including family caregivers who are not essential caregivers, except in end-of-life situations).

♦ Home health agencies are expected to provide ongoing care, even when therapeutic interventions are required.

♦ CMS is temporarily waiving requirements that an out-of-state provider be licensed in the state where they are providing services when they are licensed in another state.

Cautionary Notes Upon Entering Long-Term Care During Coronavirus

One important result of the 1135 Waiver is that the 3-day inpatient stay requirement has been temporarily waived. This means that patients covered by traditional Medicare no longer need the 3-day inpatient stay to access Medicare Part A SNF benefits, as long as the patient has skilled care needs. This applies to patients with any sort of medical condition and not just those affected by COVID-19.

Some believe that CMS’s rationale for this is to free up acute hospital beds for an anticipated increase in the number of COVID-19 patients that may require hospitalization. One important factor is that patient rights have not been waived, thus patients need to consent to their transfer and of course the skilled nursing facility must be able to meet their medical needs.

 Cautionary Notes:

 ♦ Notwithstanding this welcomed flow of transfers from hospitals to skilled nursing facilities, we urge all of our clients to be sure that prior to entering any long-term care facility, whether it be a skilled nursing facility, assisted living facility, supportive living facility etc., that the contract for admission to the facility should be reviewed by your attorneys.

♦ Once the potential 100 days of Medicare Part A coverage for a skilled nursing facility has passed, and the patient is not able to return home, patients will either have to pay out-of-pocket or look to gain eligibility in the Medicaid Long-Term Care program once Medicare has run out. Again, we think it is essential that clients consult with counsel before they seek eligibility or file an application for Medicaid in any long-term care facility.

Remote Notarizations and Witnessing of Documents

In response to the COVID–19 pandemic, Gov. Pritzker declared all counties in the state of Illinois as a disaster area on March 9, 2020 (Gubernatorial Disaster Proclamation “Proclamation”) and on March 26, 2020 issued Executive Order No. 12, pursuant to his authorization under the Illinois Emergency Management Agency Act providing:

1. For the period during the duration of the Proclamation related to the COVID-19 outbreak, the requirement that a person must “appear before” a Notary Public is satisfied if the Notary Public performs a remote notarization via two-way A/V communication technology, provided that the Notary Public commissioned in Illinois is physically within the state while performing the notarial act and the transaction follows the guidance posted by the Illinois Secretary of State on its website. Note, there are ten requirements for remote notarization in that guidance.

2. During the duration of the Proclamation, any act of witnessing required by Illinois law may be completed remotely via two-way A/V communication provided that:

a. The two-way A/V communication technology (“AV’) allows for direct, contemporaneous interaction between the individual signing the document (“signatory”) and the witness by sight and sound;

b. the AV must be recorded and preserved by the signatory or the signatory’s designee for a period of at least three years;

c. the signatory must attest to being physically located in Illinois during the AV communication;

 d. the witness must attest to being physically located in Illinois during the AV communication;

 e. the signatory must affirmatively state on the AV communication what document the signatory is signing;

 f. each page of the document being witnessed must be shown to the witness on the AV and initialed by the signatory in the presence of the witnesses;

 g. the act of signing must be captured sufficiently up close on the A/V communication for the witness to observe;

 h. the signatory must transmit by fax or electronic means a legible copy of the entire signed document directly to the witness no later than the day after the document is signed;

 i. the witness must sign the transmitted copy of the document as a witness and transmit the signed copy of the document back via fax or electronic means to the signatory within 24 hours of receipt; and

j. if necessary, the witness may sign the original signed document as of the date of the original execution by the signatory provided that the witness receives the original signed document together with the electronically witnessed copy within 30 days from the date of the remote witnessing.

3. All provisions of the Electronic Commerce Security Act of the State of Illinois remain in full effect.

4. During the duration of the Proclamation, absent an express prohibition in a document against signing in counterparts, all legal documents, including deeds, last wills and testaments, trusts, durable powers of attorney for property, and durable powers of attorney for healthcare may be signed in counterparts by the witness(es) and the signatory.

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