A Look at the HEROES Act for Homecare

WASHINGTON, D.C. (May 26, 2020)—On Friday, May 15th, the House of Representatives approved the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, a piece of legislation designed to provide additional relief in the face of the COVID-19 pandemic. In total, enactment of the HEROES Act would result in an expenditure of an additional $3 trillion for further pandemic response efforts, such as testing and contract tracing, and support for parties experiencing coronavirus related hardships including: individuals, businesses, health care providers, and frontline workers, among others. The bill was approved mostly along party lines with a vote tally of 208 – 199 with one Republican voting in favor and 14 Democrats voting against.

The bill will now move onto the Senate where it is not expected to garner any consideration as Majority Leader Mitch McConnell (R-KY) has stated a preference to take a wait-and-see approach following previous congressional action addressing the pandemic. It has been speculated that the HEROES Act will serve as the House of Representatives starting point in negotiations with the Senate, as a way of outlining policy priorities they would like to see included and addressed as part of those negotiations. In total the HEROES Act came in at over 1800 pages with provisions impacting multiple governmental departments, agencies, and programs.

Following is a summary of the key provisions impacting homecare providers.

Division A – Appropriations

Public Health and Social Services Emergency Fund (“Provider Relief Fund”) – $175 billion to reimburse for health care related expenses or lost revenue attributable to the coronavirus, as well as to support testing and contact tracing to effectively monitor and suppress COVID-19, including $100 billion in grants for hospital and health care providers to be reimbursed health care related expenses or lost revenue directly attributable to the public health emergency resulting from coronavirus, subject to a new, quarterly application process and a new eligibility calculus which, unlike earlier payments from the Provider Relief Fund, would distribute relief funds each quarter based on cost report information submitted by the provider. Eligible providers would be eligible for 60% of lost revenues compared to 2019 and they would receive 100% reimbursement for COVID-19 related costs including temporary construction costs, equipment and test acquisitions and workforce retention. Funding could not be used for executive compensation, bonuses, stock or other financial rewards for officers or employees. Balance billing for any COVID-19 treatment costs would be prohibited. Additionally, $75 billion would be provided for testing, contact tracing, and other activities necessary to effectively monitor and suppress COVID-19.

CMS – Health Care Fraud and Abuse Control – $25 million to support program integrity activities, including investigations and prosecutions of illegal or fraudulent activity affecting funds provided through Medicare, Medicaid, or the Children’s Health Insurance Program.

Administration for Community Living – $100 million to provide direct services such as home-delivered and prepackaged meals, and supportive services for seniors and disabled individuals, and their caregivers.

HHS OIG – $75 million to provide necessary oversight and enforcement related to the COVID-19 pandemic.

Division B – Health-Related Revenue Provisions

Sec. 20203. Temporary above-the-line deduction for supplies and equipment of first responders and COVID-19 front-line employees. Provides a $500 above-the-line deduction for 2020 for the uniforms, supplies, and equipment of first responders and COVID-19 front-line employees. COVID-19 front-line employees are those that perform at least 1,000 hours of essential work, as defined for pandemic premium pay reimbursable from the COVID-19 Heroes Fund.

Credits for Paid Sick & Family Leave

Sec. 20221. Extension of credits. Extends the refundable payroll tax credits for paid sick and family leave, enacted in the Families First Coronavirus Response Act (FFCRA), through the end of 2021. This provision is effective as if it was included in FFCRA.

Sec. 20222. Repeal of reduced rate of credit for certain leave. Coordinates changes made to the requirement to provide paid sick time to allow employers to claim up to $511 per day, rather than $200 per day for leave for caregivers of individuals subject to a coronavirus related stay at home order and parents providing for children affected by a coronavirus related school closure. This provision applies to days on or after the date of enactment of this Act.

Sec. 20223. Increase in limitations on credits for paid family leave. Coordinates changes made to the requirement to provide emergency paid family and medical leave to allow employers to claim up to $12,000 in refundable payroll tax credits, rather than $10,000. Allows individuals to claim the credit for a maximum of 60 days (corresponding to the $12,000 amount) rather than 50 days. This provision is effective as if it was included in the FFCRA.

Sec. 20227. Credits not allowed for certain large employers. Provides that, notwithstanding other changes in this Act requiring that employers with 500 or more employees provide required paid sick leave and paid family and medical leave, these employers are not eligible for payroll tax credits for these wages. This restriction does not apply to federal, state, and local governments. This provision applies to wages paid after the date of enactment.

Division C – Health Provisions

Title I – Medicaid

Section 30101. Federal Medical Assistance Percentage (FMAP) increase. Increases

FMAP payments to state Medicaid programs by 14% starting July 1, 2020 through June 30, 2021.

Section 30102. Medicaid Fiscal Accountability Regulation (MFAR). Prevents the Secretary of HHS from finalizing the MFAR until the end of the public health emergency. This rule, if implemented, would establish new reporting requirements related to supplemental payments to Medicaid providers and upper payment limits (UPL) and would make changes to how supplemental payments and UPL arrangements can be made and are reviewed.

Section 30103. Home and Community Based Services (HCBS). Increases federal payments to state Medicaid programs by an additional 10% starting July 1, 2020 through June 30, 2021 to support activities that strengthen their HCBS benefit.

Title II – Medicare

Sec. 30202. Skilled Nursing Facility (SNF) Televistation. Requires SNFs to provide telephone and internet access (and information them that such technology is available) to allow residents to communicate with “external visitors.”

Section 30206. Accelerated and Advance Payment Program Improvements. Lowers the interest rate for program loans to 1%, caps the per-claim recoupment at 25% of the claim, and extends repayment period to one-year before recoupment beings and at least two years before the loan is required to be paid in full.

Division I – Small Business Provisions

Sec. 90001 – Amendments to the Paycheck Protection Program. Extends the covered period from June 30, 2020 to December 31, 2020, and makes nonprofits of all sizes eligible.

Sec. 90004 – Amendments to Paycheck Protection Program Loan Forgiveness. Increase the amount of time businesses have to spend the funds from eight to 24 weeks, and waives the requirement that 75% of the funds be used towards payroll costs in order for the funds to be forgiven.

Division J – Support for Essential Workers, At-Risk Individuals, Families, and Communities

Title I – Family Care for Essential Workers

Sec. 100101 – Family Care for Essential Workers.

Subsection (a) Increase in Funding. Increases the overall authorization level for the Social Services Block Grant (SSBG) to $12.15 billion in 2020 and directly appropriates $850 million to SSBG to fund chile and family care for essential workers.

Subsection (b) Rules governing Use of Additional Funds. This section specifies that states can only use the $850 million appropriated in this section to provide care for members of the households of essential workers that are incapable of self­care, including children and adult family members who require daytime care.

The section gives states several options for providing care, including reimbursing workers directly for care they obtain themselves, paying child care and adult care providers, and setting up emergency child care. It specifies that there is no income test for receiving this emergency child care help, and waives some existing SSBG funding restrictions that prevent states from working directly with health care facilities or otherwise providing these services.

In cases where the state works with child care providers or sets up child care facilities, they would be required to follow state and local licensing laws unless the state determined that a specific requirement would prevent them from providing the services, in which case they are required to report specifically to the Secretary on the requirement and why it is an impediment.

The section specifies that states cannot supplant state funding used for child care with these new federal dollars, or exclude essential workers by requiring a means test for services. Finally, the section defines “essential worker” to include:

• Health care sector workers
• Emergency response workers
• Sanitation workers
• Workers at businesses which state or local officials have determined must stay open to serve the public during the COVID­19 emergency
• Any other worker who cannot telework and who the State or local government deems to be essential during the COVID­19 pandemic

Division L – Families, Workers, and Community Support Provisions

Title I – Amendments to Emergency Family and Medical Leave Expansion Act Amendments

Sec. 120102. Employee Eligibility and Employer Clarification. Temporarily suspends, until December 31, 2022, the current 1,250-hour eligibility requirement and reduces the tenure eligibility requirement from 12 months to 90 days under non-emergency Family and Medical Leave Act (FMLA). This will ensure widespread unemployment and furloughs do not leave workers unable to qualify for FMLA benefits in the near future. Clarifies that public agencies are covered under the Family and Medical Leave Act of 1993, regardless of the number of employees.

Sec. 120103. Emergency Leave Extension. Extends the availability of Emergency Family and Medical Leave benefits from December 31, 2020 to December 31, 2021.

Sec. 120104. Emergency Leave Definitions. Provides private sector and public sector employees who have been on the job for at least 30 calendar days with the right take up to 12 weeks of job-protected paid leave under the FMLA, regardless of the size of their employer base. In addition, Employees can take this leave to: (1) self-isolate because they were diagnosed with COVID-19, (2) obtain a medical diagnosis or to care for symptoms of COVID-19, (3) comply with a recommendation or order to self-isolate because physical presence at work would jeopardize the health of the employee, other employees, or a person in the employee’s household, (4) care for a family member who is self-isolating, (5) care for a child whose school has closed or child care provider is unavailable due to COVID-19, or (6) care for a family member who is an individual with a disability or a senior citizen whose place of care or direct care provider is unavailable.

Sec. 120105. Regulatory Authorities. Removes the Secretary of Labor’s authority to issue regulations, authorized under Families First Coronavirus Response Act, to exempt employees of businesses with fewer than 50 employees, or to issue regulations to exempt health care providers and emergency responders from the right to paid leave. Any regulations that have been issued under that previous authority shall have no effect.

 

Sec. 120106. Paid Leave. Provides that workers are provided with a full 12 weeks of paid emergency FMLA leave and such leave does not count towards an employee’s 12 weeks of non-emergency unpaid FMLA leave. This section also clarifies that only the employee can decide to take emergency FMLA leave concurrently with any other paid leave they have available.

Sec. 120107. Wage Rate. Ensures employees will receive a benefit from their employers that will be no less than two-thirds of the employee’s usual pay, up to $200 a day, but no less than the applicable minimum wage in their area.

Sec. 120108. Notice. Requires that employees provide their employers with notice as soon as is practicable.

Sec. 120109. Intermittent Leave. Clarifies that employees can take leave intermittently or on a reduced work schedule, regardless of a previous agreement between an employer and employee.

Sec. 120110. Certification. Allows employers to require requests for emergency leave to be supported by basic documentation, but not before five weeks after the employee has started the leave.

Sec. 120113. Amendments to the Families First Emergency Family and Medical Leave Expansion Act. Clarifies that employees who work under a multiemployer collective bargaining agreement and whose employers pay into a multiemployer plan are provided with leave. The section also eliminates provisions that allow employers of health care providers and emergency responders the ability to exclude their employees from emergency FMLA leave. Lastly, it eliminates provisions that restrict employees from exercising a private right of action against employers, with fewer than 50 employees.

Emergency Paid Sick Leave Act Amendments

Sec. 120115. Paid Sick Time Requirement.

Allows eligible employees to use paid sick leave for the uses allowed under the emergency FMLA.

For each 12-month period, entitles eligible full-time employees to two workweeks (80 hours) of emergency paid sick leave. For each 12-month period, eligible part-time employees are entitled to the hours of emergency paid sick leave that equals the typical number of hours that they work in a typical two-week period.

Allows employees to receive emergency paid sick leave in addition to any existing employer-provided paid leave.

Clarifies that employees can take leave intermittently or on a reduced work schedule, regardless of a previous agreement between an employer and employee.

Allows employers to require requests for paid sick leave to be supported by basic documentation, but not before 7 days after the employee has returned to work.

Requires employees to provide their employers with notice of need to take leave as soon as is practicable.

Clarifies that full emergency paid sick leave is available to employees where they begin employment with a new employer.

Requires employers to restore employees to their positions after returning from paid sick leave

Sec. 120116. Sunset. Extends the availability of emergency paid sick leave from December 31, 2020 to December 31, 2021.

Sec. 120117. Definitions. Eliminates the large employer exemption and clarifies that nonprofit organizations are covered employers. This section ensures that full-time and part-time employees earn full wage replacement (up to $511 per day) for all emergency paid sick leave uses.

Sec. 120120. Regulatory Authorities. Eliminates the Secretary of Labor’s authority to issue regulations, provided under the FFCRA, to exempt certain employers with fewer than 50 employees, health care providers, and emergency responders from the emergency paid sick leave provisions. This section also eliminates the Secretary’s authority to issue regulations to align Divisions C (Emergency Family and Medical Leave Act), E (Emergency Paid Sick Leave Act) and G (Tax Credits for Paid Sick and Paid Family and Medical Leave) of the Family First Coronavirus Response Act. Any such regulations issued by the Department shall have no force and effect.

Division Q – COVID-19 HEROES Fund Act of 2020

Title I – Provisions Relating to State, Local, Tribal, and Private Sector

Section 170101. Definitions. Defines key terms under Title I, including “essential work employers” and “essential work.” “Essential work” (1) is performed during the COVID–19 Public Health Emergency, (2) is not performed while teleworking, (3) involves regular interaction with others or items handled by others, and (4) is work in any of the 33 enumerated areas of work (e.g., health care, first responders, grocery stores, transportation, etc.)

Section 170102. Pandemic premium pay for essential workers. Provides that employers that apply for and receive grants will pay essential workers an additional $13 per hour.

Essential workers are eligible for up to $10,000 (“highly compensated” essential workers earning above $200,000, up to $5,000) for work performed from January 27, 2020 until 60 days after the last day of the COVID–19 Public Health Emergency. If an essential worker develops symptoms of COVID-19 and dies, the worker’s next of kin receives the remainder of the premium pay as a lump sum.

Section 170104. COVID–19 Heroes Fund grants. Directs the Secretary of the Treasury to award grants to essential work employers who choose to apply for grants for the purpose of providing premium pay to essential workers. Essential work employers are eligible for grants of $10,000 per essential worker ($5,000 for highly compensated essential workers) to cover the entire cost of premium pay, including employer payroll taxes for premium pay.

Employer payroll taxes include the employer portion of Medicare Hospital Insurance tax (and the corresponding part of the Railroad Retirement Board (RRB) tier 1 tax), federal unemployment tax, and state and local employment taxes. Unused funds must be returned to the Treasury.

Section 170105. Enforcement and outreach. Grants the Secretary of Labor authority to enforce payment requirements and to conduct outreach to employers. Failure to adhere to payment requirements are treated as violations of overtime requirements under the Fair Labor Standards Act

DIVISION K—COVID–19 HERO ACT

Section 110101. Emergency Medical Supplies Enhancement. Addresses a wide variety of key issues related to critical needs for addressing the COVID-19 emergency, prioritization of distribution of those items and production. Requires, within 7 days of enactment, that key Administration officials issue a report to Congress on critical needs, including for health care providers and essential critical infrastructure workers as designated by the Department of Homeland Security (includes home care and hospice workers).

NAHC is in support of several provisions included in the HEROES Act, but is still advocating for several other priorities as identified by the home care and hospice community. NAHC will continue to engage with members of the House and Senate to get these priorities included in the negotiations for the next package approved by Congress.