On May 20, the US Department of Health and Human Services (“HHS”) issued a press release reminding that a provider has until June 3, 2020, to submit revenue information to support receiving an additional payment from the Provider Relief Fund’s $50 billion General Distribution. All providers who automatically received an additional General Distribution payment prior to 5:00 pm on April 24, 2020, must provide HHS with an accounting of their annual revenues by submitting tax forms or financial statements. These providers must also agree to the program Terms and Conditions to keep the funds. Note: this deadline applies only to those applying for additional payments. Providers that received a direct deposit automatically from the Provider Relief Fund remain subject to the previously announced 45-day deadline.
HHS has published a CARES Act Provider Relief Fund FAQ to assist fund recipients and applicants. Here are some key takeaways from the FAQ:
- The prohibition on balance billing applies to “all care for a presumptive or actual case of COVID-19” only. Balance billing is not prohibited for all patients and/or all care due to HHS’ broad view of “every patient as a possible case of COVID-19.” HHS has clarified that a “presumptive case of COVID-19” (in contrast to a “possible case”) is where a patient’s medical record documentation supports a diagnosis of COVID-19, even if the patient does not have a positive in vitro diagnostic test result in his or her medical record.
- A provider that does not have or anticipate having COVID-related lost revenues or increased expenses equal to or greater than the relief payments received should return the funds. If a provider believes it was overpaid or may have received a payment in error, it should reject the entire payment received and submit the appropriate revenue documents through the General Distribution portal to facilitate HHS determining the correct payment. A provider that believes he or she was underpaid should accept the payment and submit their revenues in the provider portal to determine their correct payment.
- Providers are required to be able to demonstrate that lost revenues and increased expenses attributable to COVID-19 exceed total payments from the Provider Relief Fund, excluding expenses and losses that have been reimbursed from other sources or that other sources are obligated to reimburse. All recipients will be required to submit documents to substantiate that (1) these funds were used for increased healthcare-related expenses or lost revenue attributable to coronavirus, and (2) those expenses or losses were not reimbursed from other sources and other sources were not obligated to reimburse them. Providers should expect significant monitoring of funds distribution from HHS and the OIG although HHS has stated that it “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.” HHS reserves the right to audit Relief Fund recipients in the future and collect any Relief Fund amounts that were made in error or exceed a recipient’s lost revenue or increased expenses due to COVID-19.
- Through the Provider Relief Fund Payment Portal, HHS is collecting: (1) “gross receipts or sales” or “program service revenue” data to have an understanding of a provider’s usual operations; (2) revenue loss information to have an understanding of COVID-19 impact; and (3) tax forms in order to verify the provider’s self-reported information. According to HHS, it is collecting information about organizational structure and subsidiary TINs “so that we do not overpay or underpay providers who file tax returns covering multiple legal entities (e.g. consolidated tax returns).”
- If a hospital receives a Provider Relief Fund payment and the hospital contracts with an independently contracted provider (e.g., anesthesiologist or laboratory), that independently contracted provider is also banned from balance billing for care provided to a “presumptive or actual COVID-19 patient” if that provider also attested to receiving a payment from the Provider Relief Fund.
- The names of all providers that received payment from the Provider Relief Fund, attested to receipt of the funds, and agreed to the Terms and Conditions are posted online here. The list also includes the amount of payments each provider received.
To read our previous analysis of the Provider Relief Fund Terms and Conditions, please click here.
The COVID-19 pandemic and response is an evolving situation. All levels of government are engaged in the process of preparing new legislation, regulations and orders both to stem the spread of the virus and to provide relief to employers and employees. We will continue to monitor the situation and provide updates as applicable, especially as such updates affect healthcare providers and their practices.
For more updates on this topic and other legal updates related to the COVID-19 pandemic, please visit our COVID-19 Legal Resource Page by clicking here.