Update (May 1, 2023): End of COVID-19 Emergency: Legal Implications for Healthcare Providers
Update (June 21, 2021): Healthcare providers receiving Provider Relief Fund payments will have to report to the government on using such payments before certain newly announced spending deadlines. The first spending deadline is June 30, 2021, with a 90-day reporting period beginning July 1, 2021, to report on funds received in the first half of 2020. For the most recent updates on future deadlines and further guidance on Provider Relief Fund reporting, visit our Provider Relief Fund reporting page.
Update: On Oct. 1, 2020, the U.S. Department of Health and Human Services, through the Health Resources and Services Administrative (HRSA), announced $20 billion in new Phase 3 General Distribution Funding for providers from the Public Health and Social Services Emergency Fund (Provider Relief Fund). For more information, please see our Oct. 2, 2020, alert.
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.
Update (May 7, 2020): The Department of Health and Human Services (HHS) updated the deadline for its required attestation before being deemed acceptance until at least May 24, 2020, and issued additional guidance, as discussed in a May 7, 2020 alert. Providers applying for the second $20 billion general distribution fund will still need to attest to the terms and conditions discussed below to apply for additional funds, as discussed in an April 27, 2020 alert.
On April 10, 2020, the federal government began releasing the first $30 billion of the $100 billion Public Health and Social Services Emergency Fund appropriated in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to all eligible providers who received Medicare fee-for-service reimbursement in 2019 (discussed in an April 10, 2020 legal alert). These funds may be used to reimburse eligible healthcare providers for expenses and lost revenue attributable to the 2019 novel coronavirus (COVID-19). Many Medicare providers have already received their share of the $30 billion fund.
Since the initial release of the funds, the U.S. Department of Health and Human Services has released clarifications about certain key conditions associated with retaining the funds, as providers seek to understand their obligations in accepting this funding and attesting to the terms and conditions. Though these obligations continue to evolve, it is clear that providers will still be required to attest to certain terms and conditions of the program to retain the funds. As a result, providers should ensure they stay informed on HHS’ guidance to maintain compliance with the applicable requirements. This alert summarizes four key updates from HHS for providers that have received or expect to receive funding.
1. Eligibility Requirements: HHS’ initial guidance detailing the eligibility requirements for receiving funding left many open questions as to whether providers that (i) have since closed operations as a result of stay-at-home orders or (ii) do not typically treat COVID-19 patients would be eligible to retain these funds. HHS has since clarified that providers who have ceased operation as a result of the COVID-19 pandemic are eligible to keep the deposited funds, so long as, for some period continuing after Jan. 31, 2020, the provider provided “diagnoses, testing, or care for individuals with possible or actual cases of COVID-19.” Further, HHS specified that care does not need to be specific to treating COVID-19 because HHS is broadly viewing every patient as a possible COVID-19 case. Therefore, providers who have not treated active COVID-19 patients are eligible to keep the funds they have likely already received.
2. Attestation: While HHS has not yet released the attestation all fund recipients must accept, it has updated its guidance with respect to how providers may attest to the terms and conditions. Though providers will still need to attest to the terms and conditions within 30 days of their receipt of payment, HHS has simplified the process by stating that not returning the funds within 30 days will be viewed as acceptance of the terms. While HHS very likely will unveil the attestation in the coming days, which may include additional guidance, providers will not need to complete additional paperwork to be bound by the terms and conditions. Notwithstanding the foregoing, providers who do not satisfy the eligibility criteria or cannot attest to the terms and conditions will need to ensure they return the funds prior to the 30-day time period. Failure to do so could lead to providers improperly attesting to terms and conditions with which they cannot comply. Though HHS has not released guidance detailing penalties, wrongful attestations could lead to such. Therefore, providers should carefully consider whether they can attest to the terms and conditions and are eligible to keep these funds.
3. Terms and Conditions: HHS has updated certain keep provisions of the terms and conditions so that providers who either currently provide or provided after Jan. 31, 2020, diagnoses, testing or care for individuals with possible or actual cases of COVID-19 can accept these funds. As a result, if a provider or facility treated any patient after Jan. 31, 2020, it may be able to attest to this condition, particularly in light of HHS’ decision to broaden eligibility requirements by treating every patient as a potential COVID-19 patient, as detailed above, though it is broader than the statutory language of the CARES Act.
4. Balance Billing: One additional impact of the HHS eligibility update is it potentially prohibits out-of-network “balance billing” of all patients. As noted in the prior McGuireWoods client alert, the recipient of these funds is obligated to abstain from balance billing any patient for COVID-19 treatment. Originally, this language suggested that HHS was only prohibiting balance billing with respect to a limited subset of patients being treated for COVID-19 conditions. It is possible now, however, that HHS’ interpretation of possible or actual cases of COVID-19 care for eligibility could include essentially every patient as a possible COVID-19 case for balance billing. Under this interpretation, if adopted, providers could be prohibited from balance billing any out-of-network patient, limiting such patients’ cost-sharing to those consistent with in-network cost-sharing. McGuireWoods will continue to monitor further developments with respect to this item.
Additional guidance is expected as HHS continues to field questions and concerns from providers. McGuireWoods will monitor further developments.
In the meantime, healthcare providers should continue to quantify and monitor all COVID-19 expenses and retain copies of all relevant documents and reports, including records relating to their treatment of uninsured individuals for COVID-19. In addition, healthcare providers should track the revenue streams and funding sources used to cover such COVID-19 expenses, as the interaction between programs will be an important consideration for providers.
Please contact the authors or any of the McGuireWoods COVID-19 Response Team members for additional information on the Public Health and Social Services Emergency Fund and its availability to healthcare providers and for assistance with the documentation and upcoming attestation process.
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COVID-19: A Video From Amber WalshHealthcare Department chair Amber Walsh discusses tips for providers receiving CARES Act emergency fund payments. |