Update (May 22, 2020): Eligible providers have until June 3, 2020, to
take action to be eligible to receive an additional payment from the Provider
Relief Fund General Distribution, as discussed in a May 22, 2020 alert, which
also discusses updated guidance.
After issuing additional guidance regarding the Provider Relief Fund on May 6, 2020, the U.S. Department of Health and Human Services (HHS) announced on May 7 that providers would be given 15 additional days (through at least May 24, 2020, for providers who received funds on April 10, 2020) to attest to receipt of such funds.
The first tranche of healthcare provider relief funds was made available to all eligible healthcare providers beginning April 10, 2020, from the $100 billion Public Health and Social Services Emergency Fund appropriated in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and supplemented by $75 billion from the Paycheck Protection Program and Health Care Enhancement Act. (For background and details, see McGuireWoods alerts from April 10, April 14, April 23, April 27, April 29 and May 6.) These funds may be used to reimburse eligible providers for healthcare-related expenses and lost revenue attributable to the 2019 novel coronavirus (COVID-19). Many Medicare providers have already received their share of the funding and have applied for additional funds through programs discussed in the McGuireWoods alerts linked above.
I. Attestation Deadline Extension
As a condition to retaining any portion of the fund, HHS requires providers’ acceptance of certain terms and conditions discussed in the prior McGuireWoods alerts linked above. HHS has issued clarifications and evolving guidance about these terms and conditions and has opened a provider relief portal to confirm receipt and acceptance of the funds. Any provider allocated a payment from the initial $30 billion of the fund released by HHS must complete an attestation confirming receipt of the payment and either (1) reject the funds or (2) accept the funds and agree to the terms and conditions for receiving payment. Originally, HHS allowed recipients 30 days to access the online provider relief portal to accept the terms and conditions and sign an attestation accepting the fund.
On May 7, 2020, HHS announced a 15-day extension to this 30-day attestation deadline. Recipients of the fund will now have 45 days from the date of receipt of payment, or at least through May 24, 2020, to access the online attestation and accept the terms and conditions applicable to the initial $30 billion allocated from the fund. If a recipient does not complete the attestation within 45 days of receipt of these funds, not returning the payment will be viewed as acceptance of the terms and conditions. In its announcement, HHS reiterated that such lack of a response would be deemed as an attestation.
II. Additional FAQ Guidance From HHS
As noted above, the terms and conditions for the general distribution portion of the fund have been subject to clarification and evolving guidance. On May 6, 2020, HHS provided additional guidance about the use of the funds through its Provider Relief Fund frequently asked question (FAQ) document. This new guidance provides certain answers that providers have sought with respect to the fund, although it still leaves open a number of questions that McGuireWoods continues to discuss with healthcare providers. Some key clarifications in the FAQ include the following:
- Recoupment Guidance. If a provider believes it was overpaid or received a payment in error, HHS instructs providers to reject the entire payment and submit the appropriate documentation to aid HHS in determining the correct payment amount. However, the FAQ states, “Generally, HHS does not intend to recoup funds as long as a provider’s lost revenue and increased expenses exceed the amount of provider relief funding a provider has received.” This guidance is critical because the interplay between the $30 billion distribution and $20 billion funding formulas released by HHS on the provider relief portal led to questions; healthcare providers had wondered whether they must return funding they received from the original $30 billion funding allocation if the formula published by HHS during the $20 billion funding allocation led to a negative number. This guidance also suggests that providers without increased expenses but significant lost revenue attributable to COVID-19 will likely be able to retain Provider Relief Fund payments.
- Reporting Guidance to Come. HHS noted that recipients of the fund will need to submit documents to substantiate that the funds were “used for increased healthcare-related expenses or lost revenue attributable to coronavirus” that were not reimbursed from other sources. The first quarterly report for those receiving $150,000 or more from any COVID-19-related legislation will be required for the calendar quarter ending June 30, 2020. HHS committed to providing additional “guidance in the future about the type of documentation [it] expect[s] recipients to submit.” McGuireWoods will track these developments and provide additional information as it is available.
- Balance Billing COVID-19 Patients. HHS further reiterated that its balance billing prohibition and mandate to not bill patients above in-network rates will apply only to actual or presumptive cases of COVID-19. HHS defined a presumptive case as one “where a patient’s medical record documentation supports a diagnosis of COVID-19,” but does not have COVID-19 test results in his or her medical record. HHS also addressed healthcare providers’ concerns that it will be difficult to determine appropriate in-network rates. HHS stated that most insurers have committed to reimbursing out-of-network providers at in-network rates for COVID-19 patients, but, if the insurer will not, the provider “may seek to collect from the patient out-of-pocket expenses” so long as the provider is not collecting more than the patient would have paid in-network for the same services. Therefore, there appears to be an implicit obligation on the provider to ensure payments due to out-of-network services are consistent with in-network rates.
- Rejecting Provider Relief Fund Payments. HHS clarified that providers seeking to reject funds should use the attestation portal to return the funds. Per instructions in the attestation portal, providers that received payment they desire to return by automated clearinghouse (ACH) must reject the ACH credit utilizing ACH return code “R23 – Credit Entry Refused by Receiver.” If a provider received a paper check, the provider can destroy the check or mail a paper check back to UnitedHealth Group.
Given that HHS’ updated FAQ document notes and dates new questions as “(Added 5/6/2020),” further FAQ guidance may be forthcoming.
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In the extension announcement, HHS reiterated that it is working to provide relief to skilled nursing facilities, dentists and other healthcare providers significantly impacted by COVID-19. McGuireWoods has not yet received any additional information about this portion of the Provider Relief Fund. HHS did not restate that it is considering funds for providers that solely take Medicaid, although this language remains on the provider relief main page.
Note that HHS is also making information on the providers that have received and attested to provider relief funds public on Data.CDC.gov. The public disclosure of this information could reveal to third parties information about how much a provider received in 2019 Medicare reimbursement and how much total revenue a provider had in 2018, based on the Provider Relief Fund’s distribution formulas. The public disclosure site suggests that providers that have not yet attested to receipt of the funds are not yet listed on Data.CDC.gov. The site is updated each Tuesday and Thursday.
McGuireWoods is continuously monitoring information released by HHS and the Trump administration regarding the fund. Please contact the authors or any of the McGuireWoods COVID-19 Response Team members for additional information on the Provider Relief Fund and its availability to healthcare providers and for assistance with the documentation and attestation and reporting process.
In a series of video alerts, McGuireWoods’ healthcare lawyers address
issues providers face and overcoming COVID-19 challenges.