AMARILLO, TX – As has often been the case throughout this pandemic, HHS has continued to work behind the scenes to implement the Provider Relief Fund (“PRF”) and its many requirements. After a period of relative quiet since the introduction of Phase 2 funding, we now have some significant updates to share. The two largest developments relate to the “fix” of the unintended exclusion of certain Medicaid/CHIP heavy providers from eligibility for Phase 2 funding as well as some movement and expected future announcements regarding the reporting requirements of the PRF. We address each of these below.
Solution for the Medicaid/CHIP Provider Eligibility Issue
As detailed in our June 19, 2020 Medtrade Monday article, 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 of participation in the Phase 2 round of funding created an unintended exclusion for suppliers who primarily serve Medicaid/CHIP patients.
Pursuant to the Terms and Conditions then in place, if a supplier received a small Medicare relief payment in the Phase 1 PRF distribution, that supplier was barred from applying for Phase 2 funding. At the time, we believed that HHS would fix this issue by amending the Term and Conditions of the Phase 2 funding. After a series of seemingly contradictory announcements regarding its plan to fix this issue, HHS has announced its solution.
On August 10, 2020, HHS announced[1], via a series of FAQs and a change to the Phase 2 Terms and Conditions, that providers who received prior PRF funds are no longer barred from applying for Phase 2 funding. A selection of the relevant and important FAQs that address many of the questions that we have heard from suppliers follows:
Who is eligible for Phase 2 – General Distribution? (Modified 8/10/2020)
To be eligible to apply, the applicant must meet all of the following requirements:
Providers who have received a payment under Phase 1 of the General Distribution are no longer prohibited from submitting an application under Phase 2 of the General Distribution. Providers who received a previous Phase 1 – General Distribution payment are eligible to apply and, if they have not yet received a payment that is approximately 2% of annual revenue from patient care, may receive additional funds.
For providers who are now eligible for the Phase 2 – General Distribution that had received a payment in the Phase 1 – General Distribution, which eligibility, application requirements and portal should applicants use? (Added 8/10/2020)
Providers who received a Phase 1 – General Distribution payment that was less than 2% of revenue from patient care must meet the revised eligibility requirements for the Phase 2 – General Distribution and follow the application instructions available for the distribution. Applicants should use the Provider Relief Fund Application and Attestation Portal to apply for funds.
Is a health care provider that did not deposit a check from the Phase 1 – General Distribution that was subsequently voided after 90 days, eligible to apply for the Phase 2 – General Distribution? (Added 8/10/2020)
Yes. The health care provider is eligible to apply for a Phase 2 – General Distribution payment if it otherwise meets the eligibility criteria and has not yet received a General Distribution payment of approximately 2% of annual revenue from patient care.
Can a healthcare provider that has not billed Medicaid/CHIP during the eligibility window (January 1, 2018 to December 31, 2019), but was enrolled as a Medicaid/CHIP provider prior to 2020, apply for a Phase 2 – General Distribution payment? (Modified 8/10/2020)
Providers who are enrolled in Medicaid and did not receive a Phase 1 – General Distribution payment may apply for a payment through the Provider Relief Fund Application and Attestation Portal as long as they provided diagnoses, testing, or care for individuals with possible or actual cases of COVID-19 after January 31, 2020. HHS broadly views every patient as a possible case of COVID-19. Providers must meet all five eligibility criteria listed in the application guidance in order to be considered for a payment.
Can a healthcare provider that has a primarily Medicaid-focused practice that received a small initial General Distribution payment, but forewent applying for an additional General Distribution payment, now apply for the Phase 2 – General Distribution? (Modified 8/10/2020)
If a healthcare provider was eligible for Phase 1 – General Distribution payment, it is now eligible for a Phase 2 – General Distribution payment if the provider has not yet received a payment that equals approximately 2% of revenue from patient care.
If I rejected my Phase 1 – General Distribution payment, can I apply for a Phase 2 – General Distribution payment? (Modified 8/10/2020)
Yes, if you were eligible for the Phase 1 – General Distribution and rejected the payment, you are now eligible to apply for Phase 2 – General Distribution payment that is approximately 2% of revenue from patient care.
A subsidiary of ours received payments from the Phase 1 – General Distribution, but another subsidiary of ours did not and is a Medicaid provider – can I apply for this Phase 2 – General Distribution? (Modified 8/10/2020)
Yes, if a provider is on the State-provided list of eligible Medicaid and CHIP providers or HHS-created list of dental providers, then they are eligible to apply. Medicaid or CHIP providers who are not on the State-provided list or dental providers who are not on the HHS-created list will undergo additional validation by HHS.
If a provider received a Phase 1 – General Distribution payment and submitted financial information in the Provider Relief Fund Payment Portal, but has not yet received a payment that is approximately 2% of patient care revenue, does the provider need to resubmit its financial information in the Provider Relief Fund Application and Attestation Portal? (Added 8/10/2020)
Yes. The applicant must resubmit its financial information and fill out a new application in the Provider Relief Fund Application and Attestation Portal. Information submitted in the previous Payment Portal will not carry over into the new portal. Additionally, applications will not be considered until all applications submitted for a Phase 1 – General Distribution payment in the Provider Relief Fund Payment Portal have been adjudicated, either by receiving an additional payment or being determined ineligible for a Phase 1 payment.
If a health care provider received a Phase 1 – General Distribution payment, but did not submit its Terms information as required by the Terms and Conditions, which portal should the provider use to now submit its Terms documents? (Added 8/10/2020)
Providers should use the Provider Relief Fund Application and Attestation Portal to submit the required Terms information. Providers will be considered for additional payment if they have not yet received funds that are approximately 2% of revenue from patient care. If a provider does not want additional funds, it may return the funds and reject the attestation within 90 days of receipt. The Application and Attestation Portal will guide providers through the attestation process to reject the funds.
Provider Relief Fund Reporting Requirements
On July 20, 2020, HHS issued guidance[2] updating the reporting requirements for those who received PRF payments. While detailed reporting information is not yet available, a brief summary of key elements follows:
- All recipients who received more than $10,000 will be required to submit reports.
- The reporting portal will open October 1, 2020.
- Detailed information regarding the required reports will be issued by HHS on August 17, 2020.
- All recipients will be required to report within 45 days of the end of 2020 (or February 15, 2020).
- Recipients who have used all funds received by December 31, 2020 will be able to submit a single final report detailing use of funds.
- Recipients with unused funds at year end must submit a second and final report by July 31, 2021.
While the above guidelines provide the DME industry with some expectations on timing, little else is available. We also note that the reporting threshold appears to have been changed from the CARES Act amount of $150,000 down to $10,000. At this time, we cannot ascertain whether this was a deliberate change, a typo or whether there will be different reporting requirements based on amounts received ($10k vs. $150k). Once additional information becomes clear, we expect to write a follow-up Medtrade Monday article containing detailed reporting information. Suppliers can begin to prepare now by ensuring that use of funds received from PPP and PRF is well documented.
Conclusion
While the pandemic is still in full swing, with little end in sight, especially as we approach flu season, it is more important than ever to remain educated on the many legislative and regulatory changes happening around us. We will provide as many updates as possible but staying up to date with HHS and CMS news releases and industry guidance is vital. It is also possible that significant new legislation could be passed by Congress in the coming days that may significantly impact your operations.
AAHOMECARE’S EDUCATIONAL WEBINAR
How the DME Supplier Can Work with an Accountable Care Organization (“ACO”)
Presented by: Jeffrey S. Baird, Esq., Brown & Fortunato, P.C. & Rossanna J. Howard, Esq., Brown & Fortunato, P.C.
Tuesday, August 18, 2020
1:30-2:30 p.m. CENTRAL TIME
The DME industry, as we know it today, began in the 1970s. Because DME suppliers primarily take care of the elderly, most suppliers have been dependent on Medicare. Until relatively recently, Medicare and commercial insurers have reimbursed providers primarily on a fee-for-service (“FFS”) basis. That is, providers are paid for what they provide to the patient…regardless of the outcome. The FFS model is expensive and inefficient. Medicare and commercial insurers are now moving away from FFS and are moving towards a collaborative care model. Under this model, providers are expected to work together to take care of patients and reimbursement is tied to outcome. This is where ACOs enter the picture. A creation of the Affordable Care Act, the goal of the ACO is to “take ownership” over a patient base. The ACO strives to provide health care in a cost-effective way, avoid unnecessary tests, use a team approach, and keep patients healthy. The ACO is made up of hospitals, physicians, and other health care providers. The ACO will be influential in the decisions that patients make regarding what providers they will use. This program will discuss what an ACO is, how an ACO can be geared towards Medicare patients…and how it can be geared towards commercial insurance patients, how it is formed, and what it does. Equally as important, the program will discuss the role that the DME supplier can take in the implementation of the ACO model.
Registration information will be posted soon for How the DME Supplier Can Work with an Accountable Care Organization (“ACO”) on Tuesday, August 18, 2020, 1:30-2:30 p.m. CT, with Jeffrey S. Baird, Esq., and Rossanna J. Howard, Esq., of Brown & Fortunato, PC.
Members: $99
Non-Members: $129
AAHomecare’s Retail Work Group
The Retail Work Group is a vibrant network of DME industry stakeholders (suppliers, manufacturers, consultants) that meets once a month via video conference during which (i) an expert guest will present a topic on an aspect of selling products at retail, and (ii) a question and answer period will follow. The next Retail Work Group video conference is scheduled for September 10, 2020, at 11:00 a.m. Central. It will be a roundtable discussion regarding “Part two: COVID-19 and how retailers are navigating this new world.” Participation in the Retail Work Group is free to AAHomecare members. For more information, contact Ashley Plauché Manager of Member & Public Relations, AAHomecare ([email protected]).
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/general-distribution/index.html#phase2
[2]https://www.hhs.gov/sites/default/files/provider-post-payment-notice-of-reporting-requirements.pdf?language=en
