And the small print taketh away: Providers need to stay updated on HHS changes to the CARES Act Provider Relief Fund terms and conditions

• The terms and conditions related to the CARES Act Provider Relief Fund have evolved, which means providers need to stay up to date on the latest changes.
• Regular review of the relief fund website, and providers’ in-house attorneys occasionally downloading the current terms and blacklining the documents would help hospital leadership understand how the terms and conditions are evolving.
• Changes to language related to balance billing COVID-19 patients is just one of the tweaks providers need to be aware of.

The terms and conditions related to the CARES Act Provider Relief Fund keep evolving. As proof, from the time that this post was initially drafted on April 24 to April 27, HHS replaced its single set of terms and conditions for the CARES Act Provider Relief Fund with four separate terms and conditions documents. There are now separate documents:

• The initial payment of $30 billion from the General Distribution
• The subsequent payment of $20 billion from the General Distribution
• Claims filed for uninsured testing and related services for COVID-19
• Claims filed for treatment for uninsured individuals with COVID-19

This post applies to the terms related to both general distribution funds. HFMA staff is reviewing both term documents related to payments for COVID-19 testing and related services and treatment to providers for uninsured patients.

In addition to regularly reviewing  the relief fund website, if I were a provider, I might have my in-house attorney occasionally download the current terms and blackline the documents to make sure I understood any subsequent changes.  

There were a couple of key changes in the current terms (accessed on April 24) from the original terms (accessed on April 13) discussed below.

1. Certification: The latest draft of the terms and conditions adds language certifying that all information a recipient provides to HHS related to the funds is true, accurate and complete to the best of its knowledge. Any deliberate omission, misrepresentation or falsification of information may be punishable by civil, criminal or administrative penalties. 

Comment: It was more surprising that this wasn’t included in the original  draft of the terms and conditions. So it’s no shocker that it was added given the armchair scrutiny that will occur in the coming years of these distributions. Over the years, I’ve worked with a lot of CFOs who are squeamish about signing cost reports, given the amount of data they’re attesting is accurate. Given the paucity of detail HHS has provided on how to complete the data requests to-date and the speed at which organizations are moving to pull the information together to respond to sudden HHS data requests, signing off on this might make me uneasy as a CFO.  

2. Comply or repay: HHS has added language that non-compliance with the terms is grounds for full or partial recoupment. And, it also states that the terms and conditions also apply to your contractors.

Comment:  Again, not surprising. The clarity on the language related to contractors also just confirms that if your business partner (e.g. early-out agency) accidentally balance bills a COVID-19 patient, it’s the same as the provider doing it.

3. Balance billing: The original terms related to balance billing stated, “Accordingly, for all care for presumptive or actual case of COVID-19, Recipient 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.”

The phrase “a possible or actual case of COVID-19,” is also used earlier in the terms and conditions. In that context, it is intended to clarify that even providers who have not delivered care to COVID-19 positive patients can access the relief fund to recover lost revenue stemming from the pandemic under the rationale that HHS is assuming all patients may be COVID-19 positive. Given the parallel language with the bullet point on balance billing, some outlets speculated that HHS had just issued a blanket prohibition on the practice.  

Comment: In the terms released on April 24, the word “possible” is changed to “presumptive.” The specific language now states, “Accordingly, for all care for a presumptive or actual case of COVID-19, Recipient 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.”

Something that’s possible “may occur” and something that’s presumptive “gives grounds for reasonable belief.” And the language in the terms and conditions on HHS’s website that clarifies that all providers are eligible even if they haven’t treated a COVID-19 patient remains the same. So the language between the two sections is no longer parallel.

Tread cautiously on this item and monitor evolving HHS guidance. While the prohibition on balance billing seems to apply only to COVID-19 positive patients and patients suspected of having COVID-19 and does not prohibit balance billing on other services, it may be best to communicate proactively with patients to inform of any expected out-of-pocket payments. Patients, plans and providers may be especially confused about the health insurance coverage and provisions during the pandemic. 

4. Compensation: HHS also provided some clarity on one of the terms and conditions related to compensation. One of the provisions states “none of the funds appropriated in this title shall be used to pay the salary of an individual, through a grant or other extramural mechanism, at a rate in excess of (federal) Executive Level II” ($197,300).  HHS clarified in an email that, “This limitation only applies to the Provider Relief Fund payments and other HHS grant awards made under the same appropriation. The limitation only applies to the rate of pay charged to the HHS funds. For example, if the person’s salary is $200,000 and you seek to charge 50% of their salary to HHS funds, you may only charge 50% of $197,300, or $98,650,  to the HHS funds. If you seek to charge 100% of their salary to HHS funds, you may only charge $197,300 to HHS funds (paying the remainder of the salary out of your own funds).”

Comment: This is problematic. It’s not uncommon to hear from members that temporary nurses (“travelers”) now cost in excess of $4,000 per week, which exceeds the cap based on rate. So if the “traveler” costs $4,000 per week, the grant will cover $3,788 with the hospital paying $212 out of the hospital’s own funds. HFMA has asked Congress to address this issue.