Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

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

WARNING: Take a deep breath before you read this! And then pat yourself on the back for your continued resilience and ability to adapt and pivot during this unprecedented time! 2021 is seeming to prove to be a continuation of 2020 with one constant – change and uncertainty. 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.

The aggregate HHS guidance regarding the reporting requirements basically required providers to report (1) expenses attributable to COVID, and (2) lost revenues attributable to COVID. While those in the healthcare industry would generally agree that expenses attributable to COVID have been predictably defined by HHS, controversy continues to surround the definition of lost revenues attributable to COVID. Under the most recent guidance that we have available, lost revenues is defined as the year-over-year net change in patient care revenues from 2019 to 2020 plus additional assistance received in 2020 (including all PPP, EIDL, and other federal, state, and local assistance). Of course, this changed from guidance issues in early Fall 2020 and June 2020. 

On December 27, 2020, the Federal Appropriations Act was signed into law. While this is largely hailed as a COVID-19 relief package that served as a follow up to the Paycheck Protection Program, it did contain some changes to the Provider Relief Funds and the calculation of lost revenues. 

Providers received Phase 1 funds through automatic payments electronically deposited in their accounts based on 2019 Medicare fee-for-service payments. During Phase 1, providers had the option to apply for additional funds to supplement lost revenue, up to 2% of 2019 total collections by submitting additional practice information – including lost revenues. Providers could use a reasonable accounting methodology to calculate lost revenues where such methodologies included the difference between the provider’s 2020 budget and actual 2020 revenues or comparison of current revenues to previous revenues for the same time period. 

The definition of lost revenues was further revised in September 2020, steering away from a “reasonable accounting methodology” and moving towards a year-over-year analysis. And then finally settling on the definition contained in the November 2, 2020 guidance with a year-over-year analysis of revenues from patient care, but adding back in other assistance received in 2020. The guidance did not include any allowances for material changes in the provider’s business such as the addition or loss of providers, locations, or service lines. 

Through the new legislation, Congress appears to be sending a message back to HHS to revise the definition of lost revenues to allow providers to use a “reasonable accounting methodology” instead of a “one-size fits all” calculation. It will also be interesting to see whether HHS will exclude the additional assistance received in 2020 from the calculation.

HHS did update the FAQs on January 12, 2021 after the Federal Appropriations Act was passed, but these updates did not address the lost revenue calculations. So we anticipate that the portal will not open as anticipated and that additional changes will be forthcoming.  As a next step, providers should continue to be on the lookout for additional updates regarding the Provider Relief Funds. Providers should also continue to gather information related to expenses, revenues, and additional assistance received in 2020 in anticipation of reporting requirements. We can definitely count on one thing – CHANGE!   

If you have any questions, please contact BMD Healthcare and Hospital Law Member Amanda Waesch at alwaesch@bmdllc.com or 330-253-9185.

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Part II of the No Surprises Act

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.