Health Headlines – June 14, 2021

King & Spalding Client Alert: Are States Making COVID-19 Telehealth Emergency Measures Permanent? – Texas may be among the first of many states to enact laws that encourage providers to continue electronically communicating with and monitoring their patients after COVID-19 emergency regulations and governors’ orders expire. State legislatures are acknowledging the advantages telehealth offered during COVID-19 and are making major changes to pre-pandemic law to accommodate its continued use and growth. Some states, like Texas, are barely dipping their toe in the proverbial water, while others, like Arkansas, have dived on in.  Additional discussion and analysis is available in the King & Spalding Client Alert available here.

King & Spalding Client Alert: OCR Updates Ransomware Guidance – On June 9, 2021, OCR distributed an update to those on its Privacy List sharing links to alerts and resources for addressing the growing number and size of ransomware incidents. One such resource included a White House memorandum dated June 2, 2021 from Anne Neuberger, Deputy Assistant to the President and Deputy National Security Advisor for Cyber and Emerging Technology titled, “What We Urge You To Do To Protect Against The Threat of Ransomware” (the White House Memo).  The White House Memo describes best practices to significantly reduce the risk of a successful cyber-attack.  Additional discussion and analysis is available in the King & Spalding Client Alert available here.

CARES Act Provider Relief Fund Reporting Requirements Updates – On June 11, 2021, HHS published an updated Post-Payment Notice of Reporting Requirements (the Notice).  Notably, the Notice describes how the period of availability of CARES Act Provider Relief Fund (PRF) payments is based on the date the payment is received (rather than requiring all payments be used by June 30, 2021), and it details updated reporting timelines and requirements.  This new Notice supersedes all previous versions of the Post-Payment Notice of Reporting Requirements documents, and it applies to all past and future PRF payments. Additionally, last week, HHS released eighteen new and modified PRF frequently asked questions (the FAQs). The FAQs cover reporting requirements, Phase 3 payments, returning unused funds, and more.

Post-Payment Notice of Reporting Requirements

Period of Availability of Funds and Reporting Time Periods

Providers are required to report on their use of funds in each Payment Received Period in which they received one or more payments exceeding, in the aggregate, $10,000, as indicated in the table below.  Providers can only use payments for eligible expenses and lost revenues attributable to COVID-19 before the deadline corresponding to the relevant Payment Received Period.  These deadlines are based on the date the payments are received (i.e., the deposit date for automated clearing house (ACH) payments or the check cased date).  Furthermore, reporting must be completed and submitted to HRSA by the last date of the relevant Reporting Time Period.  This is a change from past notices and guidance that required all payments be used by June 30, 2021, regardless of when they were received.

Steps for Reporting on Use of Funds

The Notice explains that Reporting Entities will report on their use of funds using their normal basis of accounting (e.g., cash basis, accrual basis) and will submit consolidated reports.  Below is a high-level overview of how (and the order in which) data will be reported:

1. Interest Earned on PRF Payment(s):  For Reporting Entities that held the PRF payment(s) in an interest-bearing account, the dollar value of interest earned on those PRF payment(s) must be reported.  Interest earned on Skilled Nursing Facility (SNF) and Nursing Home Infection Control Distribution payments and interest earned on other PRF payments will be reported separately.

2. Other Assistance Received:  The Reporting Entity will report on other assistance received by quarter during the period of availability.  If the Reporting Entity is reporting on behalf of subsidiaries, the assistance received for each category must be aggregated across each of the subsidiaries included in the report.

3. Use of SNF and Nursing Home Infection Control Distribution Payments(if applicable): The Reporting Entity will report on infection control expenses paid for with payments received through the SNF and Nursing Home Infection Control Distributions (including any interest earned), if the entity received funds from one of these Targeted Distributions.

4. Use of General and Other Targeted Distribution Payments: The Reporting Entity will report on expenses paid for with payments received through the General and Targeted Distribution payments (excluding SNF and Nursing Home Infection Control Distribution payments). Unreimbursed expenses attributable to coronavirus are considered first in the overall use of funds calculation.

5. Net Unreimbursed Expenses Attributable to COVID-19:  The Reporting Entity will report on unreimbursed expenses attributable to COVID-19 (net after other assistance received and Provider Relief Fund payments are applied) by quarter for the period of availability, broken out as General and Administrative and/or other Health Care-Related Expenses.

6. Lost Revenues Reimbursement:  Payment amounts (excluding SNF and Nursing Home Infection Control Distribution payments) not fully expended on healthcare-related expenses attributable to COVID-19 may then be applied to patient care lost revenues, if applicable.  Recipients may choose to apply payments toward lost revenues using one of three options, up to the amount:

1. Option i: of the difference between actual patient care revenues;

2. Option ii: of the difference between budgeted (prior to March 27, 2020) and actual patient care revenues; or

3. Option iii: calculated by any reasonable method of estimating revenues.

The FAQs explain that supporting worksheets will be available to assist Reporting Entities with the completion of reports. In addition, Reporting Entities who are using a portion of their funds for lost revenues may also be required to upload supporting documentation when reporting on their calculation of lost revenues. The documentation required is dependent upon which method of calculating lost revenues providers select.

The Notice is available here.

Frequently Asked Questions

The new modified FAQs broadly discuss the following general categories: (1) Terms and Conditions; (2) Auditing and Reporting Requirements; (3) Use of Funds; (4) Supporting Data; (5) Change of Ownership; (6) Non-Financial Data; and (7) Phase 3.  Many of the FAQs overlap with the instructions in the Notice. 

Additionally, and notably, the FAQs remind Phase 3 recipients that they are not limited to using Phase 3 funds to cover COVID-19 losses or expenses only experience during the first two quarters of calendar year 2020.  While HHS collected information on the losses and expenses associated with the first two quarters of 2020 for the purposes of making additional General Distribution payments to those providers with demonstrated financial need, the Terms and Conditions do not place limits on which quarters these funds must be applied to cover eligible losses or expenses. Furthermore, the FAQs also explain that when the first reporting period begins, providers will be able to return unused funds through the Reporting Portal.

The complete FAQ document is available here.

Reporter, Ahsin Azim, Washington, D.C., +1 202 626 9262, aazim@kslaw.com.

ALSO IN THE NEWS

CMS Announces Additional Payment for Administering In-Home COVID-19 Vaccinations – On June 9, 2020, CMS announced an additional payment to providers for administering in-home COVID-19 vaccinations for Medicare beneficiaries who have difficulty leaving their homes or are otherwise hard-to-reach.  Medicare will pay an additional $35 per dose for COVID-19 vaccine administration in a beneficiary’s home, increasing the total payment amount for at-home vaccination from approximately $40 to approximately $75 per vaccine dose.  For a two-dose vaccine, this results in a total payment of approximately $150 for the administration of both doses, or approximately $70 more than the current rate.  This payment will be geographically adjusted based on where the service is furnished.  The additional payment accounts for the unique challenges and complications relating to at-home vaccine administration, such as ensuring appropriate vaccine storage temperatures, handling, and administration; clinical time needed to monitor a beneficiary after the vaccine is administered; and the upfront costs associated with administering the vaccine safely and appropriately in a beneficiary’s home.  CMS’s press release is available here.