Important Update and FAQs: HHS Tweaks Guidance on The CARES Act Provider Relief Fund Terms and ConditionsClient Alert
On April 10, 2020, many providers awoke to find electronic payment deposits from the Department of Health and Human Services (HHS) in their bank accounts. This was the first round of $30 billion of payments from the HHS Provider Relief Fund as a result of the CARES Act, which was signed into law on March 27, 2020. All healthcare providers that received Medicare fee-for-service payments in 2019 should have received a payment.
Providers have 30 days to accept the funds and agree to the Terms and Conditions associated with the payment through electronic attestation. Providers must sign the Attestation and accept the Terms and Conditions to payment via HHS’s online portal.
I am a provider that received payment (or I expect to receive a paper check), should I attest and agree to the Terms and Conditions?
On April 16, 2020, HHS updated its guidance regarding the Terms and Conditions for acceptance of the payment and use of the funds. CMS made clear that if a provider ceased operations as a result of the COVID-19 pandemic, the provider is still eligible to receive funds so long as the provider provided diagnoses, testing, or care for individuals with possible or actual cases of COVID-19. HHS clarified that care does not have to be specific to treating COVID-19. HHS broadly views every patient as a possible case of COVID-19. This clarification will make it much easier for providers to attest to the Terms and Conditions. See our April 10 alert for more details on Terms and Conditions.
Providers must attest via HHS’s online portal within 30 days of receipt of the payment, which in most instances will be May 10, 2020. Providers that do not desire to keep the payment must contact HHS within 30 days of receipt of payment and remit the payment to HHS in accordance with HHS’s instructions. If a provider fails to attest to the Terms and Conditions and does not remit payment back to HHS, the provider will be deemed to accept the Terms and Conditions and must still be in compliance.
Providers that accept the payments and attest to the Terms and Conditions must establish a policy and plan for record-keeping evidencing compliance with the Terms and Conditions. We anticipate that HHS will conduct audits to ensure providers’ compliance.
What if I did not receive a payment?
Some providers did not receive an electronic payment on April 10, 2020, but still received Medicare fee-for-service payments in 2019. If you did not receive an electronic payment, but believe you are entitled to payment through the Provider Relief Fund, you may be receiving a paper check over the next few weeks. HHS partnered with UnitedHealth Group and Optum to made the payments. Therefore, providers that are out-of-network with UHC or do not receive electronic payments from UHC may likely receive paper checks.
Also, individual providers who billed through a group practice entity, either as an employee or independent contractor will not receive a payment. In such an instance, HHS will make payment to the billing provider, which is the billing entity.
What if I also received payments under the CMS Accelerated/Advance Payment Program?
The CMS Accelerated/Advance Payment Program is separate from the payments through the CARES Act Provider Relief Fund. As such, providers can receive funding through both programs. It is important to note that the CARES Act Provider Relief Fund payments do not need to be repaid so long as the provider accepts the payments and attests to the Terms and Conditions through the online portal. Payments through the CMS Accelerated/Advance Payment Program are loans that must be repaid. A provider’s repayment obligation begins 120 days after the payment is made and must be repaid through recoupment efforts by the MAC. If the funds are not repaid within 210 days after issuance, the MAC will issue a Demand Letter and the outstanding balance will begin to accrue interest at the statutory rate (as set by the Department of Treasury), which is currently at 10.25%. Interest is assessed every 30 days until the debt is fully paid.
Thus, providers must carefully consider whether to apply for the Accelerated/Advance Payment Program. Factors to consider are cash flow concerns with recoupment efforts beginning on Day 120 and whether the entire balance can be repaid within 210 days to avoid interest.
What about the remaining $70 billion?
HHS has stated that the remaining $70 billion will be distributed by HHS in accordance with a targeted distribution plan that will focus on: (1) providers in areas particularly impacted by the COVID-19 pandemic, (2) providers in rural areas, (3) providers of services with lower shares of Medicare reimbursement or who predominantly serve the Medicaid population, and (4) providers that treat uninsured populations.