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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. 

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.