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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.

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.