Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

IRS Responds - Economic Impact Payments Do Not Belong to Nursing Homes or Care Facilities

In response to the concerns that some nursing homes and care facilities have been taking patients' economic impact payments (“EIP”) and claiming the EIP belongs to the facility, the IRS issued a reminder that the EIP does not belong to a nursing home or care facility even if that facility receives the individual’s payments, either directly or indirectly. The EIP does not count as income or a resource in determining an individual’s eligibility for Medicaid or other federal programs for a period of 12 months from when the EIP is received. What this means: an individual’s EIP does not have to be turned over by the benefit recipient.

To support the stance that the EIP do not count as income, the IRS stated that the EIP are considered an advance refund for an individual’s 2020 taxes. Therefore, it is considered a tax return for benefit purposes. Further, the IRS points to the instructions for Form 1040 which states, “any refund you receive can't be counted as income when determining if you or anyone else is eligible for benefits or assistance, or how much you or anyone else can receive, under any federal program or under any state or local program financed in whole or in part with federal funds. These programs include Temporary Assistance for Needy Families (TANF), Medicaid, Supplemental Security Income (SSI), and Supplemental Nutrition Assistance Program (formerly food stamps). In addition, when determining eligibility, the refund can't be counted as a resource for at least 12 months after you receive it.”

The Social Security Administration (“SSA”) released FAQs addressing exactly how the EIP should be handled. The SSA specifically states that the EIP belong to the beneficiary and are not a Social Security or SSI benefit. A representative payee is only responsible for managing Social Security or SSI benefits. Since an EIP is not a Social Security or SSI benefit, the representative payee should discuss the EIP with the beneficiary and allow the beneficiary to determine how it should be used. If the beneficiary determines he/she wants to use it independently, the representative payee should provide the EIP to the beneficiary. If the beneficiary asks the representative payee for assistance in how to use the EIP, the representative payee can provide that assistance outside of his/her representative payee role.

Although SSA does not have the authority to investigate or determine whether the EIP was misused, if SSA receives an allegation that the EIP was not used on behalf of the beneficiary, the SSA may decide to open an investigation into the possible misuse of the beneficiary’s Social Security or SSI benefit payments. The SSA may also remove the representative payee as no longer suitable and appoint a new representative payee.

If you need assistance in determining whether, as a representative payee, the beneficiary’s EIP was handled correctly or suspect that your loved one’s EIP was misused, please contact BMD Tax Law Attorney Tracy Albanese at tlalbanese@bmdllc.com or (330) 253-9195.

Provider Relief Funds – Continued Confusion Regarding Reporting Requirements and Lost Revenues

In Fall 2020, HHS issued multiple rounds of guidance and FAQs regarding the reporting requirements for the Provider Relief Funds, the most recently published notice being November 2, 2020 and December 11, 2020. Specifically, the reporting portal for the use of the funds in 2020 was scheduled to open on January 15, 2021. Although there was much speculation as to whether this would occur. And, as of the date of this article, the portal was not opened.

Ohio S.B. 310 Loosens Practice Barrier for Advanced Practice Providers

S.B. 310, signed by Ohio Governor DeWine and effective from December 29, 2020 until May 1, 2021, provides flexibility regarding the regulatorily mandated supervision and collaboration agreements for physician assistants, certified nurse-midwives, clinical nurse specialists and certified nurse practitioners working in a hospital or other health care facility. Originally drafted as a bill to distribute federal COVID funding to local subdivisions, the healthcare related provisions were added to help relieve some of the stresses hospitals and other healthcare facilities are facing during the COVID-19 pandemic.

HHS Issues Opinion Regarding Illegal Attempts by Drug Manufacturers to Deny 340B Discounts under Contract Pharmacy Arrangements

The federal 340B discount drug program is a safety net for many federally qualified health centers, disproportionate share hospitals, and other covered entities. This program allows these providers to obtain discount pricing on drugs which in turn allows the providers to better serve their patient populations and provide their patients with access to vital health care services. Over the years, the 340B program has undergone intense scrutiny, particularly by drug manufacturers who are required by federal law to provide the discounted pricing.

S.B. 263 Protects 340B Covered Entities from Predatory Practices in Ohio

Just before the end of calendar year 2020 and at the end of its two-year legislative session, the Ohio General Assembly passed Senate Bill 263, which prohibits insurance companies and pharmacy benefit managers (“PBMs”) from imposing on 340B Covered Entities discriminatory pricing and other contract terms. This is a win for safety net providers and the people they serve, as 340B savings are crucial to their ability to provide high quality, affordable programs and services to patients.

DOL Finalizes New Rule Regarding Independent Contractor Status, But Its Future Is In Jeopardy

On January 6, 2021, the Department of Labor announced its final rule regarding independent contractor status under the Fair Labor Standards Act. As described in a prior BMD client alert, this new rule was fast-tracked by the Trump administration after its proposal in September 2020. The new rule is set to take effect on March 8, 2021, and contains several key developments related to the "economic reality" test used to determine whether an individual is an independent contractor or an employee under the FLSA.