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By Adrienne Dresevic, Esq. and Arturo Trafny, Esq. of The Health Law Partners, P.C.
Recently, both the Centers for Medicare & Medicaid Services (CMS) and the Department of Health and Human Services Office of Inspector General (OIG) have announced that they will be taking certain actions to minimize the burdens imposed on providers and suppliers by the 2019 Novel Coronavirus (COVID-19). This article will provide an overview of the actions CMS and the OIG will be taking to aid the healthcare industry nationwide to combat the COVID-19 pandemic.
1. CMS EXPANDS ACCELERATED AND ADVANCE PAYMENT PROGRAM
On March 28, 2020, CMS announced that it is expanding its Accelerated and Advance Payment Program (AAPP) for healthcare providers and suppliers participating in Medicare. CMS also published a fact sheet overviewing the expansion. By expanding the AAPP, CMS hopes to ensure that all Medicare-participating providers and suppliers have the resources necessary to continue providing care to the public during the COVID-19 pandemic.
Under the AAPP, CMS may offer accelerated and/or advance payments in limited circumstances, including during national emergencies. On March 13, 2020, President Trump announced that COVID-19 constituted a national emergency. Moreover, he declared that a national emergency has existed in the United States due to COVID-19 since March 1, 2020. Due to this ongoing national emergency, the financial burden posed by COVID-19 and the disruption to the national healthcare system due to the pandemic, CMS has decided to expand the AAPP.
Participation and Eligibility
For the duration of the COVID-19 public health emergency, providers and suppliers may request a specific amount to be paid out as an accelerated or advanced payment. The amount should be specified on an Accelerated and Advance Payment Request form submitted to the appropriate Medicare Administrative Contractor (MAC). Each MAC will provide the form on its website for providers and suppliers to access.
Further, to qualify for participation in the AAPP, the provider or supplier must:
- Have billed Medicare for claims within 180 days immediately prior to the date of signature on the provider’s/supplier’s request form;
- Not be in bankruptcy;
- Not be under active medical review or program integrity investigation; and
- Not have any outstanding delinquent Medicare overpayments.
Payment Processing
Upon receiving the request, the MAC will work to review and issue payments requested within seven (7) calendar days. Most providers and suppliers will be eligible to receive up to 100% of the Medicare payment amount for a three (3) month period. Certain facilities (ie, inpatient acute care hospitals, children’s hospitals and certain cancer hospitals) will be eligible to receive up to 100% of Medicare payments for a six (6) month period. A critical access hospital (CAH) will be eligible for up to 125% of Medicare payments for a six (6) month period.
Repayment
For a period of 120-days following issuance of the accelerated/advance payments, CMS will not require repayment of the accelerated/advance payment. Once the 120-day period has run, new claims submitted by the provider or supplier will be automatically offset to repay the accelerated/advance payment. Therefore, the provider or supplier will not be paid out for the new claims submitted. Rather, the claims will be used to pay back the amount received in the accelerated/advance payment.
Generally, providers and suppliers will have up to 210 days to repay the balance of the accelerated/advance payments. Certain facilities (ie, inpatient acute care hospitals, children’s hospitals, certain cancer hospitals, and critical access hospitals) will have up to one (1) year to repay the balance of the accelerated/advance payment. Upon the expiration of the 210-day period or the one-year period, whichever applies, the MAC will review the account to determine if a balance is remaining. If so, the MAC will issue a request for repayment of the remaining balance.
Timeframe
The expansion of the AAPP lasts only for the duration of the COVID-19 public health emergency. Therefore, providers and suppliers should periodically check for any updates regarding the status of the COVID-19 public health emergency.
2. OIG SEEKS TO MINIMIZE BURDENS ON PROVIDERS
On March 30, 2020, the OIG issued a message acknowledging the burden that the COVID-19 pandemic has imposed on the healthcare industry nationwide. Importantly, the message discusses actions the OIG will take to provide regulatory flexibility during the pandemic. OIG believes such flexibility will help alleviate some of the burden providers are facing while combatting the COVID-19 pandemic.
First, OIG’s message provides that its Office of Audit Services will account for special rules in effect during the COVID-19 pandemic while planning and conducting audits. Further, the OIG assured providers that it would carefully consider the context and intent of the parties when assessing whether to proceed with any enforcement action for services provided during the COVID-19 pandemic.
Second, OIG acknowledged that some health care organizations may need extensions for certain OIG deadlines (eg, the production of data for an OIG review or to comply with a Corporate Integrity Agreement) due to the COVID-19 pandemic. OIG’s message encouraged any such organizations to reach out to their OIG contact to request an extension. OIG assured providers that it would work with them to reach a reasonable solution.
Lastly, note that while OIG is seeking to minimize burdens on providers, it will continue to investigate potential bad actors that may be taking advantage of the COVID-19 pandemic. Specifically, OIG will be investigating actors that may be preying on people’s fears during the pandemic in order to steal their personal health information (PHI) and/or sell fake COVID-19 testing kits or unapproved therapies.
CONCLUSION
Providers and suppliers should evaluate their current financial situation and consider taking advantage of CMS’ AAPP during the COVID-19 pandemic. The advance payments could be extremely beneficial to healthcare facilities that are currently feeling the financial strain imposed by the COVID-19 pandemic. The AAPP could help such facilities obtain the financial resources necessary to remain open and continue to provide care to its patients during the pandemic. Additionally, any providers that need an extension with any OIG deadlines should contact them as soon as possible to work out a reasonable solution.
For more information on the issues relating to this article, please contact Adrienne Dresevic, Esq. at (248) 996-8510 or by email at adresevic@thehlp.com.
Adrienne Dresevic, Esq, is a Founding Shareholder of The Health Law Partners, P.C., a nationally recognized healthcare law firm with offices in Michigan and New York. Practicing in all areas of healthcare law, she devotes a substantial portion of her practice to providing clients with counsel and analysis regarding compliance, Stark Law, Anti-Kickback Statute, and compliance related issues. Ms. Dresevic serves on the American Bar Association Health Law Section’s Council, which serves as the voice of the national health law bar within the ABA. Ms. Dresevic is the Budget Officer for the ABA Health Law Section and was the Past Co-Chair for the Physicians Legal Issues Conference for three years. She is licensed to practice law in Michigan and New York, and can be contacted at adresevic@thehlp.com.
Arturo Trafny, Esq, is an associate attorney at the Health Law Partners, P.C. Mr. Trafny graduated from Chicago-Kent College of Law. Practicing healthcare law, Mr. Trafny concentrates on regulatory and transactional matters.
The authors are members of The Health Law Partners, PC and may be reached at (248) 996-8510 or (212) 734-0128, or at www.thehlp.com.
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