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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. 

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.

Property Owner Protection from Tax Valuation Challenges

New legislation provides significant new protections for commercial property owners against challenges to valuation primarily by local school boards and prohibiting side agreements to avoid tax valuation changes. The Ohio Legislature has approved House Bill 126 which will go into effect July 2022 but will effectively apply to the 2023 tax valuation year.