Advocacy + Legal Resources Related to COVID-19
The AAO legal and advocacy team will continue to work with our federal lobbyists to monitor any federal measures to address the impact that COVID-19 is having, or will have, on our members as healthcare professionals and small business owners and, where appropriate, lobby for inclusion of our members in such relief measures.
- NEW: HHS Expands Enhanced Provider Relief Funds
- AAO Joins Dental Coalition Asking For Enhanced Commercial Business Interruption Insurance Policies
- AAO Advocates before CDC Concerning PPE and COVID-19 Guidance
- AAO Continues to Advocate for Members on PPE, Regulatory Guidance
- AAO Task Force and COGA Obtain OSHA Clarification Regarding Guidance for Dentistry
- AAO Advocates to FEMA for Availability of PPE for Orthodontists
- AAO Advocates for Members on PPE, Regulatory Guidance Issues with U.S. Senator’s Office
- Congress Passes Additional Funding for Paycheck Protection Program
- House of Representatives Passes Additional Funding for Paycheck Protection Program
- 3 Things in the CARES Act Orthodontists Need to Know
- Advocacy Update: Temporary Dept. of Labor Ruling Issued
- AAO Joins Dental Coalition In Asking For Protection For Dental Practices
- Office of Civil Rights and Secretary of Health and Human Services Waives HIPAA Compliance Requirements
HHS Expands Enhanced Provider Relief Funds
On Friday, July 10, 2020, the U.S. Department of Health and Human Services (HHS) made an announcement pertaining to the Enhanced Provider Relief Funds.
HHS announced that the Enhanced Provider Relief Funds are available for dentists who may not have previously been eligible to receive funding through the Provider Relief Fund.
Who is eligible for this Distribution?
To be eligible to apply, a dental provider must meet all of the following requirements:
- Must not have received payment from the initial $50 billion Medicare-focused General Distribution;
- Must not have received payment from the $15 billion Medicaid and CHIP Distribution;
- Must have either (i) filed a federal income tax return for fiscal years 2017, 2018 or 2019 or (ii) be an entity exempt from the requirement to file a federal income tax return and have no beneficial owner that is required to file a federal income tax return. (e.g. a state-owned hospital or healthcare clinic);
- Must have provided patient dental care after January 31, 2020;
- Must not have permanently ceased providing patient dental care directly, or indirectly through included subsidiaries; and
- If the applicant is an individual, have gross receipts or sales from providing patient dental care reported on Form 1040, Schedule C, Line 1, excluding income reported on a W-2 as a (statutory) employee.
More information on eligibility and dental distribution FAQs can be found here.
Members of the AAO’s COVID-19 Task Force have spoken with HHS about the possibility of a dental tranche and urged the inclusion of orthodontists.
This development has just been announced, and the AAO will update you as we learn more. Thank you, as always, for your membership in the American Association of Orthodontists.
AAO Joins Dental Coalition Asking For Enhanced Commercial Business Interruption Insurance Policies
On May 19, 2020, the AAO joined other dental groups to send a letter to House and Senate Leaders, as well as the Chairs of the House Financial Services Committee and Senate Banking committees, requesting the inclusion of provisions to enhance commercial business interruption insurance policies in the next legislative package related to COVID-19 crisis relief. You can view the letter here.
Many dental practices that hold business interruption insurance have recently learned that their policies do not cover government-ordered business shutdowns caused by a national emergency or viral pandemics. Proposals such as H.R. 6494, the Business Interruption Insurance Coverage Act, could offer businesses the option to address damaging gaps in coverage and bolster our country’s economic resilience during future crises. The letter asks that Congress consider providing an immediate support mechanism to help businesses currently left behind by shutdown or viral-related exclusions in business interruption insurance policies. The letter also asks Congress to build on successful models to require insurers to offer market-oriented solutions for shutdown or viral-related business interruption insurance coverage that are guaranteed with some kind of federal partnership, trust fund or backstop.
The AAO will continue to monitor federal and state regulatory and legislative activity concerning COVID-19-related issues and will continue to advocate on behalf of its members on these issues.
AAO Advocates to FEMA for Availability of PPE for Orthodontists
In late April, the AAO COVID-19 Task Force Chair Dr. Michael Durbin and Task Force member Dr. Lara Minahan participated in a call hosted by the National Association of Manufacturers (NAM) and the FEMA Supply Chain Resiliency Task Force. The purpose of the call was to gather introductory input from a variety of industries regarding realistic high-level PPE needs for workers in industries other than “first-line” healthcare workers treating COVID-19 cases, who have first priority as to PPE.
Based on issues addressed in that call, on April 28, 2020, outgoing AAO President Dr. Gary Inman sent a letter to Pete T. Gaynor, Administrator of FEMA. A copy of the letter can be viewed here. In the letter, Dr. Inman first thanked Mr. Gaynor for FEMA’s role in responding to the current pandemic. The letter also acknowledged the priority of providing PPE to first-line healthcare workers as well.
AAO Advocates for Members on PPE, Regulatory Guidance Issues with U.S. Senator’s Office
On April 28, 2020, a team of AAO representatives met by phone with the Senior Healthcare Policy Advisor for Senator Thom Tillis (North Carolina), Bill Bode. The team of AAO representatives included Dr. Michael Durbin, AAO Trustee and Chair of the AAO COVID-19 Task Force; Dr. Phil Mansour, member of the AAO’s Council on Governmental Affairs and member of the COVID-19 Task Force; Rob Kent, Vice President of Advocacy and General Counsel for the AAO; Trey Lawrence, AAO Associate General Counsel; Gianna Hartwig, State Affairs Specialist for the AAO; and Alex Campau, lead on the AAO’s federal lobbying team from Cozen O’Connor. The opportunity for the meeting arose after Dr. Durbin participated in a webinar regarding PPE and related issues in which Sen. Tillis participated and expressed interest in the topic.
The AAO team discussed two particular issues, availability of PPE for AAO members, and federal regulatory guidance (primarily from OSHA and the CDC) on COVID-19-related areas. Regarding PPE, the AAO team conveyed that the AAO absolutely supports first priority for PPE for “first line” workers (healthcare professionals treating COVID-19, first responders), but wants to make sure that PPE is also available for orthodontists and staff as practices begin to reopen under state and local guidance. The team discussed the need for practices to see patients, as well as safety considerations for orthodontists and staff as they see patients.
Congress Passes Additional Funding for Paycheck Protection Program
On Thursday, April 23rd, the U.S. House of Representatives passed an interim Coronavirus aid package that provides an additional $310 billion to the Payroll Protection Program (PPP) and an additional $10 billion to the Emergency Economic Injury Disaster Loan (EIDL) program. Today, Friday, April 24th, President Trump signed this legislation into law. The PPP will still be administered through banks and credit unions, and the EIDL application process will still be administered through the federal Small Business Administration (SBA). Of the $310 billion for the PPP loans, $60 billion is allocated specifically for smaller banks.
Importantly, if you have already applied for a PPP loan, you generally do not need to reapply, but this is dependent on whether your specific lender was maintaining your application in a queue during the PPP’s funding lapse. It is important that you check with your lender on the issue to confirm that do not need to reapply.
3 Things in the CARES Act Orthodontists Need to Know
On March 27, 2020, President Trump signed the CARES Act, a relief package that addresses unemployment benefits, small business loans, the Paycheck Protection Program (PPP), the Economic Injury Disaster Loan (EIDL) and more. The AAO Legal and Advocacy team supported the passage of this legislation and worked alongside other dental organizations to advocate on behalf of AAO members.
Below is an analysis of unemployment insurance, PPP and EIDL with targeted strategy and suggestions from Cain Watters and Associates for how these programs will affect orthodontists specifically. The AAO encourages its members to familiarize themselves with the programs described below and seek additional guidance from local lenders and your own legal counsel for more specific guidance and instruction.
Advocacy Update: Temporary Dept. of Labor Ruling Issued
As previously reported here, the AAO joined the ADA and other dental organizations on a letter asking the Secretary of Labor to exempt small businesses (under 50 employees) from the new emergency paid sick leave provisions in the recently-passed Families First Coronavirus Response Act. Under the Act, which became law on March 18 (effective April 1, 2020 until December 31, 2020), employers with under 500 employees could be required to pay for two weeks of sick leave for employees under certain circumstances, or pay for up to 10 weeks of sick leave for an employee whose child is required to miss day care or school because of a COVID-19 closure.
In a temporary rule announced by the Department of Labor on April 1 (which can be viewed here), the Secretary of Labor clarified that employers with less than 50 employees may be exempt from the sick leave requirements if they meet one of three conditions:
- granting such sick leave would cause “the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;”
- granting such sick leave would “pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business or responsibilities;” or
- the employer “cannot find enough other workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.”
AAO Joins Dental Coalition In Asking For Protection For Dental Practices
Under the new emergency paid sick leave provisions, employers will be required to provide paid sick leave to all employees for the following coronavirus-related reasons:
- Federal, State, or local quarantine;
- self-quarantine at the advice of a health care provider;
- obtaining a medical diagnosis if experiencing symptoms;
- caring for a sick individual who is subject to Federal, State, or local quarantine or is self-quarantined at the advice of a health care provider;
- caring for a child whose school or childcare facility has been closed or whose childcare provider is unavailable; and
- experiencing any other “substantially similar” condition specified by the Secretary of Health and Human Services.
Full-time employees will be entitled to 80 hours of paid sick leave at either their regular rate for their own coronavirus-related quarantine, or two-thirds of the regular rate for caring for a sick family member, caring for a child whose school or childcare facility has been closed or whose childcare provider is unavailable, or experiencing any other “substantially similar” condition.
Under these emergency paid sick leave provisions, the Secretary of Labor may issue regulations excluding health care providers or emergency responders and/or exempting small businesses with fewer than 50 employees from the paid sick leave requirements.
At this time, the AAO, along with the ADA and other dentistry associations, are lobbying for the highlighted. So, at this time, this member would need to follow the emergency paid sick leave provisions. However, the AAO is working hard to exempt these employers of 50 or less employees to also be excluded from the emergency paid sick leave. It should be noted that this is at the regulatory, implementation level, and there is no way to predict when this might be in effect, and there is the possibility that government financial assistance to these small business owners could be retroactive.
Office of Civil Rights and Secretary of Health and Human Services Waives HIPAA Compliance Requirements
During the COVID-19 nationwide public health emergency, the Office of Civil Rights (OCR) and the Secretary of Health and Human Services (HHS) will exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under the HIPAA rules in connection with the good faith provision of telehealth during the COVID-19 public health emergency. This is effective immediately.
As stated in a notice from the OCR and HHS, “Under this Notice, covered health care providers may use popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, to provide telehealth without risk that OCR might seek to impose a penalty for noncompliance with the HIPAA Rules related to the good faith provision of telehealth during the COVID-19 nationwide public health emergency. Providers are encouraged to notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications. “
AAO members should continue to use any HIPAA-compliant technologies they might already be using to communicate with their patients. However, if you need to use additional technologies that are traditionally non-compliant, please notify your patients that third-party applications potentially introduce privacy risks.