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Important Items Every Provider Should Know if Accepting the HHS Provider Relief Funds

On April 10, 2020, the Department of Health and Human Services (HHS) issued $30 billion to healthcare providers as part of the Provider Relief Fund under the CARES Act.  Providers will have 30 days from the date of receipt to access the HHS portal, attest to the payment, and accept the Terms and Conditions. The Terms and Conditions require providers to take substantial steps to ensure compliance. Here is what every provider should know: 

  • Providers should ensure that they attest on the HHS portal to ensure that the money allocated by HHS is consistent with the amount they received, as HHS will certainly recoup any excess amount and the provider will have an obligation to repay such excess.
  • Providers are required to follow 45 CFR 75.302 with respect to financial record-keeping. Providers must adopt a written policy that includes a documented process for ensuring proper allowability of costs and expenses in furtherance of the Provider Relief Fund Terms and Conditions. 
  • Providers are required to comply with 45 CFR 75.361-365 with respect to record retention requirements. This affords HHS a 3-year lookback opportunity to audit providers’ compliance with the Provider Relief Fund Terms and Conditions. 
  • Providers cannot “balance bill” patients for any COVID-related treatment. All providers must bill patients as if the provider is an in-network provider even if the provider is out-of-network. 
  • The Provider Relief Fund Terms and Conditions contain whistleblower protections.

We anticipate that HHS will audit providers’ compliance. Therefore, we recommend the following: 

  • Identify a compliance officer or individual who will be responsible for these funds.
  • Adopt a written policy and procedure to ensure compliance with the Terms and Conditions. This policy should be incorporated into your Compliance Plan.
  • Adopt a written compliant financial record-keeping process.
  • Adopt a written billing policy and update your Patient Financial Responsibility Form. Under the FFCRA and the CARES Act, private insurance plans are required to waive patient co-sharing payment requirements. Providers should have a documented plan for compliance.
  • Providers that received money under another federal COVID-related program (PPP, EIDL, etc.) must separately account for such funds and maintain appropriate records.

Here are some other helpful tips:

  • Providers must ensure vendors and contractors meet certain requirements in order to allocate Provider Relief Funds to these vendor/contractor expenses.
  • Providers should carefully review Confidentiality Agreements, NDAs, and Severance and Settlement Agreements to ensure that language is compliant with the Terms and Conditions.
  • Providers should carefully allocate appropriate expenses as well as properly document “lost revenues.” 
  • Providers cannot allocated expenses twice to two different funding sources.
  • Providers must develop a strategy to use the Provider Relief Funds in accordance with other COVID-related funding (e.g. PPP, EIDL, etc.)

BMD can provide you with a written policy as well as review your agreements to ensure compliance with the Term and Conditions. For questions or more information, please contact Amanda Waesch at alwaesch@bmdllc.com or 330-253-9185.

Lockdowns, Landlords, & Litigation: Abercrombie & Fitch Flips The Script on Simon Property Group Inc.

Novel litigation between commercial property owners and tenants arises from COVID-19 lockdowns. Typically, owners sue for nonpayment of rent. But in Franklin County, Ohio, a large retail tenant turned the tables and sued the owner to recoup payments.

UPDATE: Ohio Businesses Remain Required to Post Exceptions to State-Wide Mask Mandate at All Entrances

On August 1, 2020, Lance D. Himes, Interim Director of the Ohio Department of Health, issued an amended order continuing the requirement that Ohio businesses post at all entrances any permitted exceptions they provide to customers, patrons, visitors, contractors, vendors and similar individuals to use facial coverings.

2020 Marcum National Construction Survey Marks a New, Post-Pandemic Construction Environment

The results of the 2020 Marcum National Construction Survey are in, and the construction industry’s outlook for the remainder of 2020 and beginning of 2021 remains cautiously optimistic despite the COVID-19 global pandemic. Ability to find skilled labor, healthcare expenses, and material costs remain the top concerns for the industry, while “lack of future work” joins the list.

Wrongful Death Lawsuits in the Wake of COVID-19

Several major “essential business” employers, including Walmart and Tyson, have been served with wrongful death lawsuits in relation to COVID-19. As many Ohio employees begin to return to work, employers should be prudent in following workplace safety practices.

We are Working in a Virtual, Video-Conferencing World – But What About Wiretapping?

Businesses and other organizations often have a need or desire to record telephone conversations related to their business interests and customer dealings; however, this practice is not always permissible as federal and state laws vary on this issue. Knowing and understanding your jurisdiction’s rules and regulations on this practice is essential to remaining in compliance with the law.