AMARILLO, TX – HHS continues to do its best to navigate the storm that is COVID-19 and the associated legislation meant to protect and support health care providers in this time of significant uncertainty.  Since our last article was written, we have received answers to some questions and have received other guidance that has triggered new concerns.  Below, we address the two most important issues related to the Provider Relief Fund that have developed over the last week, namely Provider Relief Fund reporting requirements and the unintended consequences of the application procedure for Medicaid-based providers.

HHS Temporarily Suspends Provider Relief Fund Reporting Requirements
As we have mentioned in past articles, the CARES Act requires that providers that receive more than $150,000 must submit quarterly reports to HHS within 10 days of the end of each fiscal quarter.  Accordingly, we expected the first round of reports to be due to HHS beginning July 10 and continuing quarterly thereafter.  In a stroke of good news for many providers, HHS updated its FAQs[1] related to the Provider Relief Fund on June 13, 2020, stating that it will not be requiring providers to submit these reports for the time being:

The Terms and Conditions for all Provider Relief Fund payments require recipients who receive at least $150,000 in the aggregate from any statute primarily making appropriations for the coronavirus response to submit quarterly reports to HHS and the Pandemic Response Accountability Committee. This requirement is from section 15011 of the CARES Act. What do providers need to do in order to be in compliance with this provision in the Terms and Conditions? (Added 6/13/2020)

Recipients of Provider Relief Fund payments do not need to submit a separate quarterly report to HHS or the Pandemic Response Accountability Committee.  HHS will develop a report containing all information necessary for recipients of Provider Relief Fund payments to comply with this provision.  For all providers who attest to receiving a Provider Relief Fund payment and agree to the Terms and Conditions (or retain such a payment for more than 90 days), HHS is posting the names of payment recipients and their payment amounts on its public website Tracking Accountability in Government Grants System (TAGGS).  HHS is also working with the Department of Treasury to reflect the aggregate total of each recipient’s attested to Provider Relief Fund payments on USAspending.gov.  Posting these data meets the reporting requirements of the CARES Act.  See Appendix A of OMB Memo M-20-21 – PDF [Implementation Guidance for Supplemental Funding Provided in Response to the Coronavirus Disease 2019 (COVID-19)].

However, the Terms and Conditions for all Provider Relief Fund payments also require recipients to submit any reports requested by the Secretary that are necessary to allow HHS to ensure compliance with payment Terms and Conditions.  HHS will be requiring recipients to submit future reports relating to the recipient’s use of its PRF money. HHS will notify recipients of the content and due date(s) of such reports in the coming weeks.

While the above is great news for DME suppliers, all providers should be aware that strict compliance with the terms and conditions is still required; and we expect reporting to be required at some point in the future.  Proper preparation to report is vital and record-keeping should be maintained.

Unintended Issues with Distributions to Medicaid/CHIP Provider
As we detailed in last week’s issue of Medtrade Monday, on June 9, 2020, HHS announced that it was allocating $15 billion of the $175 billion Provider Relief Fund to Medicaid and Children’s Health Insurance Program (“CHIP”) providers that have been impacted by the COVID-19 pandemic and did not receive prior funding from the Provider Relief Fund.  While this was good news for many suppliers, the terms for participation in this round of funding has created some unintended consequences for suppliers who primarily serve Medicaid/CHIP patients.  If a supplier received a small Medicare relief payment in the first Provider Relief Fund distribution, that supplier is technically barred from applying for this round of funding.  It is our belief that this bar is outside of Congressional and HHS intent and should be corrected so that all providers can receive the full relief payment under the program.  AAHomecare is working hard on this issue.

Conclusion
As in many recent weeks, there is a mix of good and bad news for many suppliers.  We will stay abreast of the many changes and continue to provide updates as they become available.  Until then, make every effort to remain compliant and keep working to find your business’s “new normal.”

Jeffrey S. Baird, JD, is Chairman of the Health Care Group at Brown & Fortunato, PC, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies and other health care providers throughout the United States. Mr. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization, and can be reached at (806) 345-6320 or [email protected].

Kelly T. Custer, JD, is an attorney with the Health Care Group at Brown & Fortunato, PC, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies and other health care providers throughout the United States. Mr. Custer can be reached at (806) 345-6343 or [email protected].

[1] https://www.hhs.gov/coronavirus/cares-act-provider-relief-fund/faqs/index.html