CARES Act Reporting

Under new guidance from the U.S. Department of Health and Human Services (HHS), hospices and other providers who received CARES Act Provider Relief Fund payments can hold off on filing their first quarterly compliance report, slated to be due on July 10, 2020.[1] Instead, HHS states that it will develop its own report and this report itself will contain “all information necessary for recipients of Provider Relief Fund payments to comply with” the quarterly reporting requirements under the Relief Fund Terms and Conditions.

On June 9 the Department of Health and Human Services announced that it will distribute $15 billion to Medicaid and Children’s Health Insurance Program (“CHIP”) providers. HHS spokesman Eric Hargan noted that this distribution will be focused on the approximately 275,000 providers who care for Medicaid and CHIP recipients but who did not receive funds in HHS’ April distribution of $50 billion. Mr. Hargan specifically mentioned providers such as dentists, pediatricians, assisted living facilities and behavioral health provider such as opioid treatment programs. Medicaid/CHIP providers can apply for the funds through the enhanced Provider Relief Portal by providing data that will determine their payments, including information concerning their payer mix to inform future distributions to providers who serve a large portion of Medicaid patients or provide a large amount of uncompensated care.

After the U.S. Department of Health and Human Services (“HHS”) automatically distributed $30 billion to providers as Tranche #1 Relief Fund payments based on 2019 Medicare fee-for-service payment data, HHS subsequently released a new formula that was based on 2018 “program service revenue” and intended to calculate providers’ payments under Relief Fund Tranches #1 and #2 cumulatively.  For providers whose Tranche #1 payments alone exceeded their expected payment under the new “program service revenue” formula, there have been ongoing questions about whether such providers were “overpaid” and needed to reject and return their Tranche #1 payments.

Private nonprofit (“PNP”) organizations that own and/or operate medical facilities, such as hospitals and long term care facilities, are eligible for FEMA Public Assistance (PA) Program disaster relief funds.  Under the COVID-19 Emergency Declaration, FEMA is authorized to provide assistance for certain emergency protective measures if not funded by other federal agencies.  PNP healthcare organizations can apply for funding for emergency protective measures that are incurred as medical care costs.

For long-term care (“LTC”) facilities such as assisted living facilities and nursing homes, the high risk of spread once coronavirus disease 2019 (“COVID-19”) enters a facility  means such facilities must take immediate action to protect residents, families, and healthcare personnel from severe infections, hospitalizations, and death.  One such action that many States are taking is mandatory testing for the residents and employees of LTC facilities.  Specifically, several states, including West Virginia, South Carolina and Florida, are now requiring mandatory testing of residents and employees of skilled nursing and assisted living facilities.  Other states have similar proposed legislation in the works, including Pennsylvania, and it is likely that the number of states implementing such measures will continue to grow in the coming weeks and months. The White House has also indicated that the federal government may mandate testing nationwide for all nursing home residents and employees. While widespread testing of residents is an appropriate measure to protect the populations most vulnerable to the disease, mandatory testing raises the issue of whether and how to obtain informed consent from residents, many of whom use a medical powers of attorney (“MPOA”) for decisions regarding their care.

Background

 On Wednesday, April 8, 2020, the U.S. Department of Health & Human Services (HHS) Office of the Assistant Secretary for Health released guidance authorizing pharmacists to “order and administer COVID-19 tests, including serology tests, that the Food and Drug Administration (FDA) has authorized.”  In its guidance, HHS granted licensed pharmacists immunity when administering or ordering FDA-authorized COVID-19 tests and stated that they will be considered a “covered person” under the Public Readiness and  Preparedness Act (PREP Act) when taking such actions. The PREP Act confers immunity for covered persons, from claims arising out of state law. For more background information about the April 8, 2020 HHS guidance, see our previous post available here.

Many hospices understand the general framework established for use of relief payments from the U.S. Department of Health and Human Services. However, many questions remain about how to evaluate whether specific expenses and losses may be covered by the relief fund.

Join attorneys from Husch Blackwell’s Hospice & Palliative Care team and accounting professionals from Crowe as they discuss commonly asked questions from hospices across the country. They will share legal and accounting perspectives as well as practical considerations to help hospices as they operationalize their use of relief payments. Register here: https://bit.ly/2LNbLZ0

COVID-19 is not the sole focus of the Department of Health and Human Services (“HHS”) these days. On May 15th, the Office of Inspector General (“OIG”) announced that it added to its Work Plan a “Review of Institutions of Higher Education Grantees Receiving National Institutes of Health Awards” to address areas of potential risk at institutions of higher education (“IHE”).

Economic Hardship Covid19

On May 12, 2020 the Centers for Medicare & Medicaid Services (CMS) issued additional 1135 blanket waivers which are applicable to a wide variety of healthcare providers. These COVID-19 Emergency Declaration Blanket Waivers for Healthcare Providers are retroactively effective from March 1, 2020 through the end of the public health emergency (PHE). The waivers in this issuance do not require a request be sent or a notification be made to any of the CMS regional offices.  Each waiver must be consistent with the state’s emergency preparedness or pandemic plan.

Due to expanded COVID-19 diagnostic testing availability, the Missouri Department of Health and Senior Services (MDHSS) is encouraging providers to test both symptomatic and asymptomatic individuals, if the clinician’s medical judgment determines it is necessary. At the same time, MDHSS also posted words of caution regarding the use of serological testing, which is not considered diagnostic for COVID-19 but rather detects antibodies which could reveal exposure to SARS-CoV- 2 (the virus which causes COVID-19) or a different  infection, including other strains of coronavirus, altogether. The recent MDHSS COVID-19 Serological Testing Quick Facts (Quick Facts) cautions that: