April 22, 2020

Prepared by Michael Foster, Esq. of K&K.  Contact Micheal at MFoster@kirschenbaumesq.com with questions. 

As a follow up to last week’s newsletter on the HHS Medicare Stimulus Grants, we are writing to provide some further updates on the HHS Stimulus for Medicare providers under CARES Act.   You may recall or be aware that the Grant is not without strings attached.   You have to CERTIFY ONLINE you will follow specific rules within 30 days of receipt.  The portal is now open and can be found at https://covid19.linkhealth.com/#/step/1.  If the terms and conditions are not accepted by the provider within 30 days, the applicable provider will be required to refund the full payment to HHS.  

Below are a few key restrictions most likely to impact certain providers include:

•    The recipient of these funds is obligated to abstain from "balance billing" any patient for COVID-19-related treatment. HHS explains that due to the COVID-19 public health emergency, patients are more limited in their healthcare choices and may be forced to receive treatment from out-of-network providers. Therefore, providers may not seek collection of out-of-pocket payments from a COVID-19 patient that are greater than what the patient would have otherwise been required to pay if the care had been provided by an in-network provider.
•    The recipient must certify that the payment will only be used to prevent, prepare for, and respond to COVID-19, which includes healthcare-related expenses and lost revenues attributable to COVID-19. HHS has not yet provided further details regarding this condition. In other cases like the blanket Stark Law waivers, COVID-19 purposes were broadly defined.
•    The recipient must certify that it is (i) currently providing diagnoses, testing or care for individuals with possible or actual cases of COVID-19; (ii) is not currently terminated from participation in Medicare; (iii) is not currently excluded from participation in Medicare, Medicaid, and other federal healthcare programs; and (iv) does not currently have Medicare billing privileges revoked. HHS has not issued guidance about these restrictions. It is unknown what these restrictions will mean for providers that would not typically be testing COVID-19 patients or for providers that limited their current operations due to stay-at-home orders or orders delaying elective procedures. The funding of these grants does not appear to have distinguished between such providers.
•    The recipient must certify 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. Further guidance will determine how this limitation interacts with other financial support opportunities available for healthcare companies during the COVID-19 crisis and whether receipt of these funds will limit participation in other programs, including loan forgiveness and tax treatments available to providers. 
•    The recipient must submit reports to ensure compliance with these conditions, with additional quarterly reporting requirements for recipients receiving more than $150,000 total in funds under the CARES Act, the Families First Coronavirus Response Act (FFCRA), and any other COVID-19 appropriated funds. The secretary of HHS will provide further guidance regarding the reports and documentation needed to support providers’ requests for funding. Providers should prepare and maintain the necessary records, reports and documentation required by the fund.
•    The recipient must maintain records and cost documentation information to substantiate the reimbursement of costs under this award. The recipient must submit copies of these records, cost documentation, and fully cooperate in all audits to ensure compliance with the terms and conditions.
•    In addition, the general statutory provisions in FY 2020 Consolidated Appropriation also apply to these payments. For example, none of the funds may be used to pay the salary of an individual at a rate in excess of Executive Level II ($197,300). Though we are awaiting further guidance from the secretary of HHS, this may limit providers from using the fund payments to pay physicians who receive production-based compensation if their annual compensation may exceed $197,300. 
•    Some of the other restrictions on how to spend the money include prohibiting spending on: (i) gun control advocacy; (ii) lobbying; (iii) abortion services; (iv) embryo research; (v) the promotion of legalization of controlled substances; (vi) pornography services; (vii) the execution of confidentiality agreements or NDA’s; or (viii) unpaid federal tax liability.
Within 30 days of receiving the payment, providers must sign an attestation confirming receipt of the funds and agreeing to the terms and conditions of payment.

The above is not exhaustive.  For assistance navigating the HHS Grant approved expenditures, reach out to Jennifer or Michael.  If you received or do receive PPP funds, it is very important to process approved uses of the stimuli carefully so you do not jeopardize the "grant" and potential forgiveness of each.  We are here to help.  

For more information please visit the following webpages:


We know, we've had too many webinars.  Here are the ones we recommend to catch up on....  (the good news is you can tell your kids you are "Working" while watching) - 

1) Regal Healthcare Capital Partners - Market Update - Watch Now Here: https://youtu.be/w7UAJAsnuOk






For other areas, such as Breach Reporting, Employment Contracting, Compliance Advice, etc., view our database of Webinars here  https://www.kirschenbaumesq.com/page/healthcare-webinars.   Now is a great time for brushing up on best practices for the "Business of Practice".   

Looking for information on a topic we have not covered, or you want covered again, email Jennifer at Jennifer@Kirschenbaumesq.com.