Little Health Law Blog
On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2 trillion relief act to provide financial support for individuals, businesses and 
government organizations that experienced revenue losses from COVID-19. The purpose of the Act is to offer financial relief and to establish telehealth benefits for patients needing non-COVID-19 services. Section A of the Act authorizes programs for relief and contains information about mandatory spending provisions, while section B contains provisions regarding discretionary and emergency appropriations. Over the next few weeks, this blog will discuss recent changes to the CARES Act, and the impact that those modifications are having on hospitals and physician practices. This post provides a brief overview of the CARES Act, as well as the attestation process that providers must follow upon receiving funds.
The Provider Relief Fund
The federal government partnered with United Health Group to disburse funds to providers from the Center for Medicare & Medicaid Services (CMS), through the Provider Relief Fund (the “Fund”). This $175 billion fund provides monetary relief for hospitals and healthcare providers on the front lines of the coronavirus response in the form of grants. The grants may be used for necessary expenditures due to the COVID-19 public health emergency and other expenses related to the Coronavirus that were not already part of an approved state or government budget.
Of funds allocated for relief, $3 billion has been reserved for payments to Washington DC and territories, $8 billion has been reserved for Indian tribes, as defined by the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304(e)). The CARES Act also provides for a minimum amount of $1.25 billion per state. The remaining funds will be distributed to states upon a need-based analysis, through an application process. To reduce competition between states, the allocation will be determined by the state’s population in comparison to the populations of other states requesting funding.
While the monetary allocation is recognized as a “grant,” specific rules govern the retention of funds. Recipients of the Fund’s grants are subject to unique terms and conditions depending on the type of provider or type of facility that receives the funds. See: https://www.hhs.gov/sites/default/files/terms-and-conditions-provider-relief-30-b.pdf All recipients should be aware of the terms and conditions pertaining to the receipt of CARES Funds before agreeing to accept payment. Recently, some hospitals and providers have chosen to return payments as confusion regarding the terms has created difficulty for participating providers.
Attestation:
Healthcare systems and individual providers may receive funding through the CARES ACT. Providers who receive funds are required to sign an attestation through the Payment Attestation Portal within 30 days of receiving payment. See: https://www.hhs.gov/coronavirus/cares-act-provider-relief-fund/for-providers/index.html The Payment Attestation Portal requires that providers agree to certain terms and conditions mandating the receipt of the payment, and also requires recipients of funds to verify the amount received. Payments are made based on an organization’s Taxpayer Identification Numbers and have been distributed to solo practitioners as well as large health systems.
To identify which accounts will receive payments, practice administrators should refer to the part of the organization that bills Medicare and reference their practice’s 2018 net patient revenue. The amount of money received is proportional to a provider’s or facility’s prior Medicare Fee-for-Service (FFS).
For employed physicians or those who are members of a group practice, payments will be sent to the organization and not to individuals.
Providers are not required to accept all payments and may still be eligible for future payments upon rejection of a previous payment. The rejection process is also managed through the attestation portal. Payments must be returned within 90 days of receipt and will be presumed as accepted upon failure to return payments. Facilities and provider groups must complete documentation to certify compliance with the terms and conditions of the CARE Act.
To ensure that individual providers and health systems meet attestation deadlines and follow the Terms and Conditions surrounding CARES Act payment, an organization-based legal analysis should be conducted. To promote compliance, reduce the risk of violations, and assist in determining that all documentation is present to support receipt of the appropriate amount of funds, providers may benefit by consulting advisors experienced in healthcare administration, financial and legal matters, such as financial and legal counsel.
We focus on representing and protecting healthcare providers and professionals. To schedule a confidential consultation, call us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta) email us at info@littlehealthlaw.com, or visit us online at www.littlehealthlaw.com
* Disclaimer: Thoughts shared here do not constitute legal advice. Please consult with an attorney to discuss your legal issue.