RECIPIENTS HAVE FORTY-FIVE (45) DAYS TO ACCEPT OR RETURN HHS STIMULUS PAYMENTS

To our clients, colleagues and friends, we continue to monitor the constantly evolving laws, guidance, rules, and information pertaining to the various stimulus and relief funds. We are writing today to let you know that HHS has extended the deadline by which recipients must either accept or return the HHS Stimulus payments which were made as part of the first tranche of the Provider Relief payments. Recipients now have forty-five (45) days from the date the funds were received to accept or return the HHS Stimulus payments – for many, this will be May 24th, 2020 (the first tranche of payments were received on April 10th). If a recipient does nothing by May 24th, (or such later date if the funds were received after April 10th), the recipient will be deemed to have accepted the Terms and Conditions and to have signed the attestation. The original deadline was thirty (30) days from receipt of funds.

The HHS Stimulus payments are to be used (i) to prepare, prevent and respond to Covid-19 and (ii) to reimburse the provider only for health care related expenses or lost revenue attributable to Covid-19. To be eligible, a recipient must (i) have provided diagnoses, testing, treatment or care for possible or actual Covid- 19 patients, after January 31, 2020, (ii) have billed Medicare in 2019 (iii) satisfy certain other eligibility criteria, and (iv) accept the Terms and Conditions (a copy is attached but please note that it has not been updated to reflect the 45 day response deadline). In addition to satisfying eligibility requirements, the recipient (i) cannot use these HHS Stimulus funds to pay or reimburse for expenses or losses which are covered by other Covid-19 relief received by the recipient or which are covered, or obligated to be covered, by other sources – this would include Paycheck Protection Program loans, EIDL loans or grants, insurance, etc.), (ii) must comply with strict reporting requirements, particularly if the recipient has received relief funds from other sources (again PPP, EIDL, etc), and (iii) must agree not to “balance bill” patients or to bill any patient an amount greater than the patient would have paid in-network. These are just some of the key issue pertaining to the HHS Stimulus payments.

There have been many questions concerning the meaning of certain of the eligibility criteria and the Terms and Conditions of these HHS Stimulus payments, and HHS has just begun to issue further guidance. For instance, while HHS has said that for eligibility purposes, it will consider all patients as “possible” Covid- 19 patients, it has now clarified that this broad interpretation will not be applied in connection with the prohibition against balance billing. As such, HHS has now clarified that the prohibition against balance billing only applies to presumptive or actual cases of Covid-19. HHS has further clarified that a “presumptive” case of Covid-19 is based upon the patient’s medical records documentation supporting a diagnosis of Covid-19 (even without a positive test). HHS has also issued further guidance concerning billing as it pertains to out of network patients, reporting requirements, what to do if a recipient believes it has not received the correct stimulus amount, how to return Stimulus funds, and guidance considering requesting additional funds and required documentation. Significantly, HHS has stated it will have significant anti-fraud monitoring, possibility of audits, and that the Office of the Inspector General will have general oversight as provided in the CARES Act to ensure all federal funds are used appropriately. HHS has indicated that while these funds are not intended to be loans, the funds may be subject to recoupment if the recipient fails to comply with the Terms and Conditions.

We are happy to discuss the HHS Stimulus payments and Provider Relief Fund payments with you so you can determine how best to proceed. A second tranche of these funds has been made available. This information is accurate as of 12 p.m. on Friday, May 8th, 2020, and is subject to change as the guidance and rules continue to evolve. If you have any questions or wish to discuss, please contact Lynda Goldfarb at LGoldfarb@clmclaw.com or (516) 365-1400 ext. 127. Stay healthy and well.