With the Oct. 2 Michigan Supreme Court ruling that the legal basis for Gov. Gretchen Whitmer’s COVID-19-related executive orders is unconstitutional, a greater degree of uncertainty surrounds the ways Michigan hospitals, businesses and residents are responding to the challenges of the continuing pandemic. The MHA is keeping members apprised of this and other pandemic-related developments affecting Michigan hospitals through email updates and the MHA Coronavirus webpage. The Supreme Court ruling and additional important updates are outlined below.
MHA Evaluating Impact of Supreme Court Striking Down Governor’s State of Emergency Powers
The Michigan Supreme Court’s ruling declaring the legal basis for the governor’s COVID-19-related executive orders unconstitutional was in response to a request from the U.S. District Court for the Western District of Michigan. The lower court asked for a review of the constitutionality of two Michigan statutes Whitmer relied on in issuing her executive orders, the Emergency Management Act (EMA) of 1976 and the Emergency Powers of the Governor Act (EPGA) of 1945. The Michigan Supreme Court unanimously ruled the governor lacked authority to issue or renew executive orders under the EMA after April 30, 2020, without concurrence by the Legislature. By a 4-3 margin, the court ruled the EPGA also violated the Michigan Constitution.
The current executive orders (EOs) remain in effect until at least Oct. 23 because, under Michigan Court Rules, orders of the Michigan Supreme Court are not effective sooner than 21 days, allowing the opportunity for a party to request a rehearing. However, this was not a routine appeal from the Michigan Court of Appeals or through the Michigan state courts. Because this was a certified question from the federal court, the U.S. District Court will now need to issue an opinion in the federal case that prompted the Supreme Court’s ruling, Midwest Institute of Health v. Governor. The timing for this decision is unknown.
The MHA posted a statement on the ruling on its website, encouraging all Michiganders to continue to be extremely vigilant about following COVID-19 prevention guidance, including masking, physical distancing, washing hands frequently and receiving flu vaccines.
It is anticipated that many of the healthcare-related orders will be implemented through state regulatory agencies and local/county government agencies. Michigan Department of Health and Human Services (MDHHS) Director Robert Gordon issued an Emergency Order Oct. 5 that mandates masks in public places and limits gathering sizes. The MHA is reviewing the order and will alert members if its effects are expected to be different than those experienced under the governor’s orders. The association will also apprise members of any additional state-level announcements as they become available.
An updated list of the governor’s EOs that impact members is available on the MHA website to ensure hospitals are aware of potential items the healthcare community may need have addressed; all EOs and MDHHS orders are available on the state's COVID-19 webpage.
CMS Revises Reporting Requirements
The Centers for Medicare & Medicaid Services (CMS) issued new guidance on COVID-19 reporting requirements and a workflow process that outlines how the CMS will enforce hospital compliance. Hospitals are encouraged to read the revised guidance and note the following changes from previous requirements:
- Mandatory supply-related data reports are now required once per week.
- Psychiatric (except those that are distinct-part psychiatric hospitals) and rehabilitation hospitals will be required to report only once per week.
- Beginning Nov. 1, remdesivir and staffing-related data will be optional.
- Additional reporting requirements will begin Nov. 1 for certain data on influenza patients.
Hospitals are also required to provide data into the state’s COVID-19 data portal, EMResource. Hospitals may choose to allow the state to enter data into the U.S. Department of Health and Human Services’ TeleTracking COVID-19 portal on their behalf. Members with questions about this process or the CMS guidelines may contact Jim Lee at the MHA.
Medicare Advance Payment Repayment Update
WPS, the Medicare Administrative Contractor (MAC) for most of Michigan, recently released information regarding the CMS’ instructions to MACs to implement the provision of the Continuing Appropriations Act of 2021 delaying the Medicare advance payment repayment timeline. Changes to the repayment terms are as follows:
- The repayment period has been extended, and the automatic recoupment will begin one year after the date the accelerated or advance payment was issued.
- During the first 11 months after repayment begins, repayment will occur through an automatic recoupment of 25% of the provider/supplier Medicare payments.
- At the end of the 11-month period, the recoupment rate will increase from 25% to 50%. The automatic recovery at the 50% recoupment rate will continue for six months.
- If the total amount of the accelerated/advance payment is not recovered within 29 months from the date the payment was made, a demand letter for the outstanding balance will be issued. The demanded amount will be subject to a 4% interest rate.
The MHA will continue to work with the Michigan congressional delegation and the American Hospital Association to further improve these processes. Members with questions may contact Jason Jorkasky at the MHA.
Governor Announces Broadband Internet Grants
The governor announced Oct. 8 during the North American International Cyber Summit that $12.7 million in funding is available to increase broadband internet access across Michigan. As telehealth and remote work have gained popularity during the COVID-19 pandemic, this effort to improve internet access is welcomed by members – especially those in rural areas.
According to the announcement, more than 1,243,000 Michigan households do not have a permanent, fixed broadband connection at home, resulting in $1.8 billion to $2.7 billion in potential economic benefit left unrealized among disconnected households.
The new broadband projects were selected through the Connecting Michigan Communities (CMIC) grant program and are expected to extend access to more than 10,900 households, businesses and community anchor institutions in Michigan. A list of counties/areas impacted by these awards is available on the CMIC Broadband Grant webpage. Recommendations for the second round of CMIC grant awards totaling $5.3 million will be announced soon, and the governor recently signed a state budget that includes an additional $14.3 million in grant funding for a third round of projects in 2021.
Additional information on the COVID-19 pandemic is available to members on the MHA Community Site and the MHA COVID-19 webpage. Questions on COVID-19 and infectious disease response strategies may be directed to the MDHHS Community Health Emergency Coordination Center (CHECC). Members with MHA-specific questions should contact the following MHA staff members: