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The CARES Act Provider Relief Fund: What We Know So Far…

Client Alert

The CARES Act that was signed into law on March 27, 2020 provides for the Provider Relief Fund, which set aside $100 billion in relief funds for healthcare providers with expenses or lost revenue attributable to COVID-19. On April 9, 2020, the Department of Health and Human Services (“HHS”) released the first round of $30 billion of funding. All healthcare providers that received Medicare fee-for-service reimbursements in 2019 should have received a distribution. Payments will be made via electronic payment. Providers that do not receive electronic payment will receive paper checks over the next few weeks.

Providers have 30 days to accept the funds and agree to the Terms and Conditions associated with the payment through electronic attestation. We recommend that that our provider clients wait to sign the attestation and use the funds until additional guidance and commentary is released on the Terms and Conditions. There are many gray areas that require additional guidance and clarification. 

Terms and Conditions: 

  • The provider must certify that it has billed Medicare in 2019 and currently provides diagnoses, testing, or care for individuals with possible or actual cases of COVID-19; is not currently terminated from participation in Medicare; is not currently excluded from participation in Medicare; is not currently excluded from participation in Medicare, Medicaid, or other Federal health care programs; and does not currently have Medicare billing privileges revoked. 
  • The provider must certify that the payment will only be used to prevent, prepare for, and respond to COVID-19, and be used to reimburse the provider only for healthcare related expenses or lost revenues that are attributable to COVID-19.  
  • The provider must certify that it will not use the payment to reimburse expenses or losses that have been reimbursed from other sources or that other sources are obligated to reimburse. 
  • The provider must submit reports to HHS to ensure compliance with these requirements.  
  • If the provider must submit a report to HHS if the provider has also received more than $150,000 in total funds under the Coronavirus Aid, Relief, and Economics Security Act (P.L. 116-136), the Coronavirus Preparedness and Response Supplemental Appropriations Act (P.L. 116-123), the Families First Coronavirus Response Act (P.L. 116-127), or any other Act providing COVID-19-related funding. This would include loans such as the Economic Injury Disaster Loan (EIDL) and Paycheck Protection Program (PPP). This report shall contain: the total amount of funds received from HHS under these programs; the amount of funds received that were expended or obligated for reach project or activity; a detailed list of all projects or activities for which large covered funds were expended or obligated, including: the name and description of the project or activity, and the estimated number of jobs created or retained by the project or activity, where applicable; and detailed information on any level of sub-contracts or subgrants awarded by the covered recipient or its subcontractors or subgrantees, to include the data elements required to comply with the Federal Funding Accountability and Transparency Act of 2006 allowing aggregate reporting on awards below $50,000 or to individuals, as prescribed by the Director of the Office of Management and Budget. 
  • The provider must maintain appropriate records and cost documentation, including, documentation required by 45 CFR §75.302 (financial management) and 45 CFR §75.361-75.365 (record retention and access), and other information required by future program instructions to substantiate the reimbursement of costs. The reports may be submitted to HHS and subject to audit and inspection.  
  • Providers cannot “balance bill” patients for any COVID-related treatment. All providers must bill patients as if the provider is an in-network provider even if the provider is out-of-network. Under the FFCRA and the CARES Act, private insurance plans are required to waive patient co-sharing payment requirements. 

Like with the implementation of the FFCRA and DOL guidance as well as the CARES Act and guidance from the SBA, we anticipate that HHS will release additional guidance to assist providers in determining compliance with the attestation and clarify the Terms and Conditions. We recommend that providers take a wait-and-see approach to evaluate this guidance and determine whether to accept the funds subject to the Terms and Conditions. 

CMS Accelerated and Advance Payment Program 

In response to the COVID-19 pandemic, CMS expanded its Accelerated and Advance Payment Program. This program is separate from the payments through the CARES Act Provider Relief Fund. These expedited payments are typically offered to providers struggling with claim submission or claim processing due to hurricanes, tornadoes, or other natural disasters and act as short term loans that must be repaid. During the first week of April 2020, CMS distributed $34 billion to healthcare providers as part of the Accelerated/Advance Payment Program. Important facts: 

  • The payments are available to both Part A and Part B providers. Providers can apply for accelerated payment via their MAC. To locate your MAC, click here
  • Generally, providers can request up to 100% of the Medicare payment amount for a 3-month period. Certain Part A providers can request up to 6 months.
  • Providers should be approved and funded within 7 days of submission of a complete request.
  • The CARES Act extended the repayment timeframe for these accelerated payments. Certain Part A providers and all Part B suppliers will have 210 days from the date of disbursement to repay the balance. Inpatient acute care hospitals, children’s hospitals, certain cancer hospitals, and CAHs will have up to 1 year to repay the payments. 
  • Repayment obligations will begin 120 days after payments are made. The payments will be paid through recoupment efforts by the MAC against Medicare claims submitted by the provider. If the funds are repaid within the 210 day period, the funds act as an interest-free short term loan. However, after 210 days, the MAC will issue a demand letter and interest will start to accrue.
  • Interest is set at the statutory rate (as set by the Department of Treasury), which is currently at 10.25%. Interest is assessed every 30 days until the debt is fully paid. 

Providers may have already applied for and received accelerated payments through this program. In such an instance, providers will still be eligible to receive the payments under the CARES Act Provider Relief Fund. However, providers must be aware of the repayment obligations associated with the accelerated funds. Further, it is unclear whether the CARES Act Provider Relief Funds may be used to repay the accelerated payments.

For more information, contact Amanda L. Waesch at alwaesch@bmdllc.com or 330-253-9185.


Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

In a late December press release, Trulieve announced that it had secured a $71.5 million commercial bank loan. In addition to the amount of the loan, which may be the largest commercial bank loan to date to a cannabis company, the release prominently identified Valley Bank and featured both a quote from Valley’s Senior Vice President, John Myers, and a description of the Bank’s service platform and commitment to the cannabis industry.

The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.