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Pondering Over Patient Billing: CARES Act and Provider Relief Fund Lead to More Questions

Client Alert
April 16, 2020

The Department of Health and Human Services (HHS) released its first round of $30 billion payments to healthcare providers in furtherance of the CARES Act Provider Relief Fund on April 9, 2020. Providers that received Medicare fee-for-service payments in 2019 received an electronic or paper check stimulus payment. Providers have 30 days from the date of payment receipt to log onto the HHS portal and attest to the Terms and Conditions. HHS issued slight clarifications to the Terms and Conditions on April 16, 2020, which makes it easier for providers to attest to the Terms and Conditions. See our alert regarding updates to the new guidance on T&Cs. However, it also raises some additional questions related to patient balance billing and provider record-keeping requirements. 

On April 11, 2020, HHS, along with the Department of Labor and Department of the Treasury, issued jointly prepared FAQs regarding the FFCRA, the CARES Act, and other health coverage issues. The FFCRA was enacted on March 18, 2020 and requires group health plans and health insurance issuers to provide benefits for certain items and services related to diagnostic testing for COVID-19. Additionally, plans and issuers must provide coverage without imposing any cost-sharing requirements (deductibles, copayments, and coinsurance), prior authorization, or other medical management requirements.  

The CARES Act was enacted on March 27, 2020. The CARES Act expanded the range of COVID-related items and services that must be covered by plans and issuers. Again, this coverage cannot impose cost-sharing requirements, prior authorizations, or other medical management requirements. The CARES Act also requires plans and issuers to reimburse a provider of COVID-19 diagnostic testing either (1) the negotiated rate, or (2) the cash price for the service that is published on the provider’s public website. It is important for providers to have fee schedules for COVID-19 diagnostic tests and publish the fee schedule on the provider’s website.   

Here are some important clarifications from the joint FAQs: 

  • All types of plans are subject to the FFCRA and CARES Act requirements, including fully insured and self-funded plans, private employment-based group health plans, non-federal governmental, and church plans. 
  • Plans and issuers must provide coverage for items or services with dates of service as of March 18, 2020 and continuing throughout the duration of the public health emergency (as determined by the Secretary of HHS). 
  • Plans and issuers must cover approved COVID-19 diagnostic tests (including in vitro diagnostic tests) as well as healthcare provider office visits (both in-person and telehealth visits), urgent care center visits, and emergency room visits that are COVID-related. 
  • Plans and issuers must cover additional items and services that are related to the determination of whether an individual needs a COVID-19 diagnostic test (e.g. influenza test, blood test, etc.) where the result of such additional items or services is that the individual does, in fact, need a COVID-19 diagnostic test. Again, the plan or issuer must provide coverage without imposing cost-sharing obligations, prior authorization or other medical management requirements. 

The FFCRA and the CARES Act largely dealt with group health plans and health insurance issuers. Industry commentary questioned the provider’s responsibility in patient billing to avoid billing surprises. The CARES Act established the Provider Relief Fund, which is a $100 billion fund designed to reimburse eligible health care providers for healthcare related expenses associated with COVID-related items and services provided to uninsured patients. Providers must agree to certain Terms and Conditions in order to accept these funds. The Terms and Conditions state that providers cannot “balance bill” patients “for all care for a possible or actual case of COVID-19.” Additionally, providers must agree to refrain from billing uninsured patients for items and services related to COVID-19 diagnosis. 

On April 16, 2020, HHS clarified that care does not have to be specific to treating COVID-19 as, “HHS broadly views every patient as a possible case of COVID-19.”  While this clarification certainly makes it easier for providers to attest to certain of the Terms and Conditions, it causes uncertainty with respect to balance billing patients and waiving of patient cost-sharing amounts applicable to out-of-network patients. Using HHS’s broad view that every patient is viewed as a possible case of COVID-19, it appears that the Terms and Conditions would require providers to treat and bill each patient as in-network. Further, providers must ensure that payors are properly paying all patient cost-sharing obligations as required by the FFCRA and the CARES Act.  

Providers must ensure proper record keeping related to the Provider Relief Fund payments as well as compliant billing policies and procedures. Providers may schedule a consultation session with Attorney Amanda Waesch at a discounted rate of $250. For more information, please contact Amanda Waesch at alwaesch@bmdllc.com or 330-253-9185. 

HHSFFCRACARES ActHealth LawLabor Lawdiagnostic testingCOVID-19coronaviruscost-sharingdeductiblescopaymentscoinsuranceprior authorizationmedical management requirementsprovidersHealthcarepatient billingProvider Relief FundDOLAmanda L. Waesch
Client Alert

Part II of the No Surprises Act

October 12, 2021The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.Client Alert

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

September 27, 2021The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.Client Alert

Banking & Cannabis: The Next Frontier Webinar

September 23, 2021On Tuesday, September 21st, BMD’s own Banking and Cannabis Partner, Stephen Lenn, hosted a star-studded cast of panelists in a webinar titled Banking & Cannabis: Cannabis Lending, The Next Frontier. The webinar, which had to suspend registrations when hitting a maximum cap of 500, aimed to explore issues related to cannabis and banking, with a particular emphasis on lending. With the sponsorship and support of the Bankers Associations of Arizona, Colorado, Ohio and Utah, Steve was able to recruit an elite group of bankers, bank regulators, cannabis industry players, and cannabis regulators, who took the topic head on. The discussion kicked off with an opening from the keynote speaker, VP of Congressional Affairs for the American Bankers Association, Tanner Daniel.Client Alert

Is Your Bonus System Creating Wage and Hour Violations? A Hidden Impact of the Labor Shortages

September 22, 2021As employers struggle with attracting and retaining talent, many have turned to incentives such as Signing Bonuses and Retention Bonuses. In doing so, employers may be inadvertently exposing themselves to overtime law violations. Employers with non-exempt employees know that the Fair Labor Standards Act (FLSA) requires an overtime premium to non-exempt for work in excess of 40 hours per week. However, all too often, employers miscalculate the “regular rate” of pay, which is used for calculating the “overtime rate.” The miscalculation is becoming more prevalent in today’s market when employers fail to include supplemental compensation, such as certain Signing Bonuses and Retention Bonuses into the regular rate of pay. An example: A non-exempt employee is hired at a rate of $20 per hour, and also receives a retention bonus of $1,200 after working for 12 weeks. In her 11th week of work, employee works 50 hours. In her 14th week of work, employee works 50 hours. What is her paycheck in week 11? What is her paycheck in week 14?Client Alert

No Surprises Act – Notice Requirements

September 22, 2021On July 1, 2021, the Biden Administration passed an interim final rule: Part 1 of the “Requirements Related to Surprise Billing Act,” in an attempt to curb excessive costs patients are required to pay in relation to surprise billing. The rule is set to take affect January 1, 2022, and will only affect those who are enrolled in insurance via their employers, as federal healthcare programs already prohibit this type of billing.[1]
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