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Pondering Over Patient Billing: CARES Act and Provider Relief Fund Lead to More Questions

The Department of Health and Human Services (HHS) released its first round of $30 billion payments to healthcare providers in furtherance of the CARES Act Provider Relief Fund on April 9, 2020. Providers that received Medicare fee-for-service payments in 2019 received an electronic or paper check stimulus payment. Providers have 30 days from the date of payment receipt to log onto the HHS portal and attest to the Terms and Conditions. HHS issued slight clarifications to the Terms and Conditions on April 16, 2020, which makes it easier for providers to attest to the Terms and Conditions. See our alert regarding updates to the new guidance on T&Cs. However, it also raises some additional questions related to patient balance billing and provider record-keeping requirements. 

On April 11, 2020, HHS, along with the Department of Labor and Department of the Treasury, issued jointly prepared FAQs regarding the FFCRA, the CARES Act, and other health coverage issues. The FFCRA was enacted on March 18, 2020 and requires group health plans and health insurance issuers to provide benefits for certain items and services related to diagnostic testing for COVID-19. Additionally, plans and issuers must provide coverage without imposing any cost-sharing requirements (deductibles, copayments, and coinsurance), prior authorization, or other medical management requirements.  

The CARES Act was enacted on March 27, 2020. The CARES Act expanded the range of COVID-related items and services that must be covered by plans and issuers. Again, this coverage cannot impose cost-sharing requirements, prior authorizations, or other medical management requirements. The CARES Act also requires plans and issuers to reimburse a provider of COVID-19 diagnostic testing either (1) the negotiated rate, or (2) the cash price for the service that is published on the provider’s public website. It is important for providers to have fee schedules for COVID-19 diagnostic tests and publish the fee schedule on the provider’s website.   

Here are some important clarifications from the joint FAQs

  • All types of plans are subject to the FFCRA and CARES Act requirements, including fully insured and self-funded plans, private employment-based group health plans, non-federal governmental, and church plans. 
  • Plans and issuers must provide coverage for items or services with dates of service as of March 18, 2020 and continuing throughout the duration of the public health emergency (as determined by the Secretary of HHS). 
  • Plans and issuers must cover approved COVID-19 diagnostic tests (including in vitro diagnostic tests) as well as healthcare provider office visits (both in-person and telehealth visits), urgent care center visits, and emergency room visits that are COVID-related. 
  • Plans and issuers must cover additional items and services that are related to the determination of whether an individual needs a COVID-19 diagnostic test (e.g. influenza test, blood test, etc.) where the result of such additional items or services is that the individual does, in fact, need a COVID-19 diagnostic test. Again, the plan or issuer must provide coverage without imposing cost-sharing obligations, prior authorization or other medical management requirements. 

The FFCRA and the CARES Act largely dealt with group health plans and health insurance issuers. Industry commentary questioned the provider’s responsibility in patient billing to avoid billing surprises. The CARES Act established the Provider Relief Fund, which is a $100 billion fund designed to reimburse eligible health care providers for healthcare related expenses associated with COVID-related items and services provided to uninsured patients. Providers must agree to certain Terms and Conditions in order to accept these funds. The Terms and Conditions state that providers cannot “balance bill” patients “for all care for a possible or actual case of COVID-19.” Additionally, providers must agree to refrain from billing uninsured patients for items and services related to COVID-19 diagnosis. 

On April 16, 2020, HHS clarified that care does not have to be specific to treating COVID-19 as, “HHS broadly views every patient as a possible case of COVID-19.”  While this clarification certainly makes it easier for providers to attest to certain of the Terms and Conditions, it causes uncertainty with respect to balance billing patients and waiving of patient cost-sharing amounts applicable to out-of-network patients. Using HHS’s broad view that every patient is viewed as a possible case of COVID-19, it appears that the Terms and Conditions would require providers to treat and bill each patient as in-network. Further, providers must ensure that payors are properly paying all patient cost-sharing obligations as required by the FFCRA and the CARES Act.  

Providers must ensure proper record keeping related to the Provider Relief Fund payments as well as compliant billing policies and procedures. Providers may schedule a consultation session with Attorney Amanda Waesch at a discounted rate of $250. For more information, please contact Amanda Waesch at alwaesch@bmdllc.com or 330-253-9185. 

HHS Announces an Additional $20 Billion In Provider Relief Grants

The U.S. Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers on October 1, 2020. Eligible providers include those that have already received Provider Relief Fund payments as well as previously ineligible providers, such as those who began practicing in 2020, and an expanded group of behavioral health providers confronting the emergence of increased mental health and substance use issues exacerbated by the pandemic. The new Phase 3 General Distribution is designed to balance an equitable payment of 2% of annual revenue from patient care for all applicants plus an add-on payment to account for revenue losses and expenses attributable to COVID-19.

DOL Proposes New Rule Regarding Independent Contractor Status - But How Will the Election Affect Its Future?

On September 22, 2020, the U.S. Department of Labor announced a new proposed rule regarding employee and independent contractor status under the Fair Labor Standards Act. The full text of the proposed rule is available here. The rule's drafters intend to reduce uncertainty and enhance the precision and predictability of the long-standing "economic reality" test, which currently relies on a multifactor balancing test.

Major Change to Franklin County, Ohio Eviction Process: Landlord Testimony Required

Although there is currently a nationwide temporary halt on all residential evictions through December 31, 2020 in place, the eviction process in Franklin County – which processes the highest number of evictions in the State of Ohio at approximately 18,000 a year – recently changed significantly.

UPDATE: Governor Dewine Signs HB 606 Granting Short Window of Immunity from COVID-19 Personal Injury Lawsuits

The Ohio General Assembly, in Am. Sub. H.B. No. 606, is in the final stages of passing a law that will prohibit lawsuits seeking damages from COVID-19. This includes injury, death, or loss to person or property if the lawsuits are based, in whole or in part, on the exposure to, or the transmission or contraction of the coronavirus, unless the defendant in the lawsuit acted intentionally or recklessly. In circumstances where this immunity does not apply, H.B. 606 prohibits such claims being aggregated and brought as a class action.

Revised Department of Labor FFCRA Guidance, Effective September 16, 2020

In response to attacks on the legality of the Department of Labor’s (“DOL”) Final Rule regarding the Families First Coronavirus Act (“FFCRA” or the “Act”), which took effect in April 2020, the Department of Labor issued new guidance on Friday, September 11th to formally address ongoing questions and concerns related to the COVID-19 legislation.