DOL clarifies health care provider exemption. The Department of Labor issued a frequently asked questions document about Family and Medical Leave Act expansions in the Families First Coronavirus Response Act (FFCRA). Among the many questions covered in the document is one (#56) that is very important to long-term services and supports providers concerned that their employees will take advantage of FFCRA's paid leave provisions as soon as the law becomes effective on April 1. In the FAQ, DOL clarifies who qualifies for the health care provider exemption. Employees defined as health care providers cannot take advantage of the paid leave.

The DOL's answer, in its entirety, is:

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. 

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.

While some of the terminology in this answer could be more precise, it is clear that DOL is casting a broad net with the exemption, especially by use of the words "any similar institution, employer, or entity." Skilled nursing centers and home health agencies (despite the imprecise term "home health care provider") clearly appear to be covered. Assisted living is less clear-cut, although the inclusion of "retirement facility" would appear to sweep them in. Hospice is even less clear, but it could be argued that someone providing hospice services in a patient's home would be a "home health care provider" and that an inpatient hospice facility is a "similar institution." Hospice services delivered to SNF patients clearly would fall into the "entity that contracts with" language.

Most unclear is the status of ID/DD providers, particular waiver services. ICFs/IID and maybe residential waiver settings could be considered "similar institutions" to those that are specifically listed. A worker delivering in-home waiver services possibly could be a "home health care provider," but it is somewhat of a stretch. Other non-residential waiver services are even farther afield. The saving grace may be the language exempting "any individual that the highest official of a state ... determines is a health care provider necessary for that state’s ... response to COVID-19." OHCA already has initiated a request to designate ID/DD providers as necessary under that provision.

AHCA decries orders for SNFs to accept COVID-19 patients. AHCA issued a statement confronting efforts by Governors such as New York's Andrew Cuomo to order SNFs to take COVID-19 patients discharged by hospitals. AHCA's statement points out that, "[t]his approach will introduce the highly contagious virus into more nursing homes. There will be more hospitalizations for nursing home residents who need ventilator care and ultimately, a higher number of deaths. Issuing such an order is a mistake and there is a better solution." The solution is the one OHCA has advocated forcefully to Ohio state officials over the past two weeks: "for hospital patients to be discharged to nursing homes that can create segregated COVID-19 units [or better yet, entire buildings] and have the vital personal protective equipment (PPE) needed to keep the staff safe."