May 7, 2020
Update (June 21, 2021): Healthcare providers receiving Provider Relief Fund payments will have to report to the government on using such payments before certain newly announced spending deadlines. The first spending deadline is June 30, 2021, with a 90-day reporting period beginning July 1, 2021, to report on funds received in the first half of 2020. For the most recent updates on future deadlines and further guidance on Provider Relief Fund reporting, visit our Provider Relief Fund reporting page.
Update: On Oct. 1, 2020, the U.S. Department of Health and Human Services, through the Health Resources and Services Administrative (HRSA), announced $20 billion in new Phase 3 General Distribution Funding for providers from the Public Health and Social Services Emergency Fund (Provider Relief Fund). For more information, please see our Oct. 2, 2020, alert.
Update (May 22, 2020): Eligible providers have until June 3, 2020, to take action to be eligible to receive an additional payment from the Provider Relief Fund General Distribution, as discussed in a May 22, 2020 alert, which also discusses updated guidance.
After issuing additional guidance regarding the Provider Relief Fund on May 6, 2020, the U.S. Department of Health and Human Services (HHS) announced on May 7 that providers would be given 15 additional days (through at least May 24, 2020, for providers who received funds on April 10, 2020) to attest to receipt of such funds.
The first tranche of healthcare provider relief funds was made available to all eligible healthcare providers beginning April 10, 2020, from the $100 billion Public Health and Social Services Emergency Fund appropriated in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and supplemented by $75 billion from the Paycheck Protection Program and Health Care Enhancement Act. (For background and details, see McGuireWoods alerts from April 10, April 14, April 23, April 27, April 29 and May 6.) These funds may be used to reimburse eligible providers for healthcare-related expenses and lost revenue attributable to the 2019 novel coronavirus (COVID-19). Many Medicare providers have already received their share of the funding and have applied for additional funds through programs discussed in the McGuireWoods alerts linked above.
I. Attestation Deadline Extension
As a condition to retaining any portion of the fund, HHS requires providers’ acceptance of certain terms and conditions discussed in the prior McGuireWoods alerts linked above. HHS has issued clarifications and evolving guidance about these terms and conditions and has opened a provider relief portal to confirm receipt and acceptance of the funds. Any provider allocated a payment from the initial $30 billion of the fund released by HHS must complete an attestation confirming receipt of the payment and either (1) reject the funds or (2) accept the funds and agree to the terms and conditions for receiving payment. Originally, HHS allowed recipients 30 days to access the online provider relief portal to accept the terms and conditions and sign an attestation accepting the fund.
On May 7, 2020, HHS announced a 15-day extension to this 30-day attestation deadline. Recipients of the fund will now have 45 days from the date of receipt of payment, or at least through May 24, 2020, to access the online attestation and accept the terms and conditions applicable to the initial $30 billion allocated from the fund. If a recipient does not complete the attestation within 45 days of receipt of these funds, not returning the payment will be viewed as acceptance of the terms and conditions. In its announcement, HHS reiterated that such lack of a response would be deemed as an attestation.
II. Additional FAQ Guidance From HHS
As noted above, the terms and conditions for the general distribution portion of the fund have been subject to clarification and evolving guidance. On May 6, 2020, HHS provided additional guidance about the use of the funds through its Provider Relief Fund frequently asked question (FAQ) document. This new guidance provides certain answers that providers have sought with respect to the fund, although it still leaves open a number of questions that McGuireWoods continues to discuss with healthcare providers. Some key clarifications in the FAQ include the following:
Given that HHS’ updated FAQ document notes and dates new questions as “(Added 5/6/2020),” further FAQ guidance may be forthcoming.
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In the extension announcement, HHS reiterated that it is working to provide relief to skilled nursing facilities, dentists and other healthcare providers significantly impacted by COVID-19. McGuireWoods has not yet received any additional information about this portion of the Provider Relief Fund. HHS did not restate that it is considering funds for providers that solely take Medicaid, although this language remains on the provider relief main page.
Note that HHS is also making information on the providers that have received and attested to provider relief funds public on Data.CDC.gov. The public disclosure of this information could reveal to third parties information about how much a provider received in 2019 Medicare reimbursement and how much total revenue a provider had in 2018, based on the Provider Relief Fund’s distribution formulas. The public disclosure site suggests that providers that have not yet attested to receipt of the funds are not yet listed on Data.CDC.gov. The site is updated each Tuesday and Thursday.
McGuireWoods is continuously monitoring information released by HHS and the Trump administration regarding the fund. Please contact the authors or any of the McGuireWoods COVID-19 Response Team members for additional information on the Provider Relief Fund and its availability to healthcare providers and for assistance with the documentation and attestation and reporting process.
COVID-19: Healthcare Video AlertsIn a series of video alerts, McGuireWoods’ healthcare lawyers address issues providers face and overcoming COVID-19 challenges. |