CARES Act Update: Reporting and Disclosure Requirements

The CARES Act and Paycheck Protection Program and Health Care Enhancement Act provided $175 billion to hospitals and eligible health care providers. See https://www.hhs.gov/coronavirus/cares-act-provider-relief-fund/index.html.  Any funds received have to be used to “prevent, prepare for, and respond to the coronavirus and must be used for healthcare-related expenses or lost revenue which resulted from COVID-19.  As part of this overall amount, the Provider Relief Fund has a $50 billion general allocation to Medicare facilities and providers impacted by COVID-19.  As discussed in our April 15, 2020 post, $30 million was initially released.  Now, an additional $20 billion has started to be distributed.

The Additional $20 Billion In Distribution

On April 24, HHS began to distribute the remaining $20 billion of the $50 billion general distribution to Medicare Providers.  The distributions will occur weekly and on a rolling basis.  Under the terms and conditions, a provider who retains that payment for at least 30 days without contacting HHS regarding remittance of those funds, are deemed to have accepted the terms and conditions.  Even if the provider intends to retain the funds, it must sign an attestation confirming receipt of the funds and agree to the terms and conditions within 45 days of payment.  The attestation is available online and can be found at https://covid19.linkhealth.com/#/step/1. 

New Terms and Conditions

Importantly, the terms and conditions of the $20 billion general distribution differs from the previous $30 billion general distribution.  Hence, providers must carefully review the terms and conditions for the $20 billion general distribution even if they previously reviewed the terms and conditions for the prior $30 billion general distribution.

Under the Terms and Conditions of the $20 billion general distribution, a provider who agrees to the terms and conditions agrees, among other things, to the following key provisions:

• certifies that the Payment will only be used to prevent, prepare for, and respond to coronavirus, and that the Payment shall reimburse the Recipient only for health care related expenses or lost revenues that are attributable to coronavirus.
• certifies that it will not use the Payment to reimburse expenses or losses that have been reimbursed from other sources or that other sources are obligated to reimburse
• shall submit reports as the Secretary determines are needed to ensure compliance with conditions that are imposed on this Payment, and such reports shall be in such form, with such content, as specified by the Secretary in future program instructions directed to all Recipients. The Recipient shall also submit general revenue data for calendar year 2018 to the Secretary when applying to receive a Payment, or within 30 days of having received a Payment. [NEW]
• consents to the Department of Health and Human Services publicly disclosing the Payment that Recipient may receive from the Relief Fund. The Recipient acknowledges that such disclosure may allow some third parties to estimate the Recipient’s gross receipts or sales, program service revenue, or other equivalent information. [NEW]
• acknowledges that any deliberate omission, misrepresentation, or falsification of any information contained in this Payment application or future reports may be punishable by criminal, civil, or administrative penalties, including but not limited to revocation of Medicare billing privileges, exclusion from federal health care programs, and/or the imposition of fines, civil damages, and/or imprisonment.
• certifies that it will not seek to collect from the patient out-of-pocket expenses in an amount greater than what the patient would have otherwise been required to pay if the care had been provided by an in-network Recipient (i.e. no balance billing)

Prevent, Prepare For and Responding

There have been many questions as to what it means to “prevent, prepare for, and respond to COVID-19 in both versions of the Terms and Conditions because it is also coupled with authorizing language to use it for “healthcare related expenses or lost revenues that are attributable to coronavirus.  The authorizing legislation sheds some light on what is likely appropriate because it specified the following categories:

(1) building or construction of temporary structures; (2) leasing of properties; (3) medical supplies and equipment including personal protective equipment and testing supplies; (4) increased workforce and training; (5) emergency operation centers; (6) retrofitting facilities; and (7) surge capacity. 

https://www.congress.gov/116/plaws/publ139/PLAW-116publ139.pdf p. 5.

As such, while there appears that there may be contradictory language between the authorizing language and the Terms and Conditions, providers should carefully review and determine how the funds are going to be used and whether they fall clearly within the scope of the authorizing language of the public law.  Expenses that appear to be clearly authorized relate to (1) employment expenses (salary etc.) for increased staff to address the response to COVID19; (2) purchasing of supplies and equipment for treating COVID-19 patients or preventing transmission; and (3) renovations or construction of temporary structures to care for, test, or isolate COVID-19 patients.  It is possible that other expenses may be related, but that must be decided on an individual entity level.

The Importance of Compliance

HHS will audit providers who received funding to ensure that the funds comply with the terms and conditions. In fact, HHS states “There will be significant anti-fraud and auditing work done by HHS, including the work of the Office of the Inspector General.”   The Terms and Conditions provide that it is “not an exhaustive list and you must comply with any other relevant statutes and regulations, as applicable which opens the door for HHS to add more requirements. Careful considerations must be undertaken to assess the appropriate use of the Relief Funds and the compliance requirements, such as creating a mechanism to meticulously track expenses for which the funds are used. It is also important for providers who received funds to stay up to date and comply with all of the requirements related to receiving these funds. 

For more information, you can contact Danielle Holley Tangorre at 518-462-5601 or dtangorre@oalaw.com. Andrew Ko, ako@oalaw.com, assisted in the drafting of this post.