Washington Watch Weekly - May 22, 2020 | ASCRS
Washington Watch

Washington Watch Weekly - May 22, 2020

SBA Releases Paycheck Protection Program (PPP) Loan Forgiveness Application

On May 15, the Small Business Administration (SBA), in consultation with the Department of the Treasury, released the PPP Loan Forgiveness Application, as well as detailed instructions. SBA is also expected to issue regulations and guidance to further assist borrowers and to provide lenders with guidance on their responsibilities.

The form and instructions include:

  • Options for borrowers to calculate payroll costs using an “alternative payroll covered period” that aligns with borrowers’ regular payroll cycles
  • Flexibility to include eligible payroll and non-payroll expenses paid or incurred during the eight-week period after receiving their PPP loan
  • Step-by-step instructions on how to perform the calculations required by the CARES Act to confirm eligibility for loan forgiveness
  • Borrower-friendly implementation of statutory exemptions from loan forgiveness reduction based on rehiring by June 30
  • Addition of a new exemption from the loan forgiveness reduction for borrowers who have made a good-faith, written offer to rehire workers that was declined

Click here to view the application and instructions.

House and Senate Work to Revise the Payroll Protection Program (PPP); House Expected to Vote on Legislation Next Week

House and Senate lawmakers are working to revise the PPP to provide additional flexibility for small businesses, including extending the time businesses must rehire employees and qualify for loan forgiveness beyond the June 30th deadline. In addition, they are looking to extend the period for paying back portions of the loans that are not forgiven beyond the current two years, as well as eliminating a requirement that businesses spend 75% of the loan on payroll for it to be forgiven. Many of these changes were included in the recent House approved HEROES Act, but given that bill has stalled for now, both Republicans and Democrats want to address the PPP quickly.

Bi-partisan legislation introduced by Representatives Dean Phillips (D-MN) and Chip Roy (R-TX), H.R. 6886, the Paycheck Protection Flexibility Act, is scheduled to be voted on by the House next week. That legislation extends the timeline to spend the loan funds to 24 weeks from the current 8 weeks. Senator Marco Rubio (R-FL), Chairman of the Senate Small Business Committee, has been working on bi-partisan legislation, which was unveiled yesterday.  The legislation would give small businesses 16 weeks to spend the loan funds and allow those businesses to use the funds to buy personal protective equipment and other investments to open safely.  They did not seek unanimous consent, which was their original plan. Instead, they are waiting for bicameral discussions with the House when they return next week.

CMS Finalizes Changes to Medicare Advantage and Part D Plans, Including Increasing Access to Telehealth for Medicare Beneficiaries

On May 22, the Centers for Medicare & Medicaid Services (CMS)  finalized requirements that will increase access to telehealth for seniors in Medicare Advantage (MA) plans, as well as expand the types of supplemental benefits available for beneficiaries with an MA plan who have chronic diseases, provide support for more MA options for beneficiaries in rural communities, and expand access to MA for patients with End Stage Renal Disease (ESRD).

Due to the upcoming June 1, 2020, MA and Part D bid deadlines for the 2021 plan year, CMS finalized a subset of the proposed policies before the MA and Part D plans’ bids are due. CMS plans to address the remaining proposals for plans later in 2020 for the 2022 plan year.

Encouraging Access to Telehealth

“CMS’s rapid changes to telehealth are a godsend to patients and providers and allows people to be treated in the safety of their home,” said CMS Administrator Seema Verma. “The changes we are making will help make telehealth more widely available in Medicare Advantage and are part of larger efforts to advance telehealth.”

The final rule encourages MA plans to increase their telehealth benefits and increase plan options for beneficiaries living in rural areas. CMS is giving MA plans more flexibility to count telehealth providers in certain specialty areas (such as Dermatology, Psychiatry, Cardiology, Ophthalmology, Nephrology, Primary Care, Gynecology, Endocrinology, and Infectious Diseases) towards meeting CMS network adequacy standards. This flexibility will encourage plans to enhance their benefits to give beneficiaries access to the latest telehealth technologies and increase plan choices for beneficiaries residing in rural areas.

For a fact sheet on the Contract Year 2021 Medicare Advantage and Part D Final Rule (CMS-4190-F1), please click here.

Attest by June 3 to Receive Additional Relief Fund General Distribution Payment

Eligible providers have until June 3, 2020, to accept the Terms and Conditions and submit their revenue information to support receiving an additional payment from the Provider Relief Fund $50 billion General Distribution.

All providers who automatically received an additional General Distribution payment prior to 5:00 pm, Friday, April 24th, must provide HHS with an accounting of their annual revenues by submitting tax forms or financial statements. These providers must also agree to the program Terms and Conditions if they wish to keep the funds. Providers who have cases pending before the department for adjudication regarding eligibility for general distribution funding will not be impacted by this closure. All cases needing individual adjudication will need to be received by HHS no later than June 3, 2020.

The submission of tax forms or financial statements to the portal will also serve as an application for additional funding for those providers that have not already received an additional General Distribution payment. If these providers do not submit their revenue information by June 3, they will no longer be eligible to receive potential additional funding from the $50 billion General Distribution.

As you are aware, HHS previously announced $50 billion of the Provider Relief Fund was allocated for general distribution to facilities and providers that bill Medicare and were impacted by COVID-19, based on eligible providers' net patient revenue. To expedite providers getting money as quickly as possible, HHS distributed $30 billion immediately, proportionate to providers' share of Medicare fee-for-service reimbursements in 2019. Then, beginning on April 24, HHS began distributing an additional $20 billion to providers based on their share of net patient revenue, and began accepting submissions from eligible providers of their financial data.

Providers have 45 days from the date they received a payment to attest and accept the Terms and Conditions or return the funds. Providers that do not log into the provider portal and accept the Terms and Conditions after 45 days of receipt will be deemed to have accepted the Terms and Conditions.

Click here for more information.

HHS Updates the Provider Relief Fund FAQs

HHS Provides Additional Clarification - Provider Relief Fund

As you are aware, HHS has asked for practices to provide documentation of certain revenue information so that it can make the calculations for the provider relief funds specific to each TIN (Taxpayer Identification Number). HHS removed the formula and overpayments language from the portal last week to address concerns from physicians who had done their own estimates and reached conclusions about potential overpayments instead of relying on HHS to do the calculations. Unfortunately, in some cases these changes with formulas appearing and disappearing from the website heightened rather than allayed concerns. 

On Friday, May 15th, HHS posted revised FAQs on the Provider Relief Fund General Distribution Portal regarding the calculations and clarify some of the recent confusion, particularly the following two questions:

How did HHS determine the additional payments under the General Distribution? (Added 5/14/2020)

HHS is distributing an additional $20 billion of the General Distribution to providers to augment their initial allocation so that $50 billion is allocated proportional to providers' share of 2018 net patient revenue. The allocation methodology is designed to provide relief to providers, who bill Medicare fee-for-service, with at least 2% of that provider’s net patient revenue regardless of the provider’s payer mix. Payments are determined based on the lesser of 2% of a provider’s 2018 (or most recent complete tax year) net patient revenue or the sum of incurred losses for March and April. If the initial General Distribution payment you received between April 10 and April 17 was determined to be at least 2% of your annual patient revenue, you will not receive additional General Distribution payments.

How can I estimate 2% of patient revenue to determine my approximate General Distribution payment? (Added 5/14/2020)

In general, providers can estimate payments from the General Distribution of approximately 2% of 2018 (or most recent complete tax year) patient revenue. To estimate your payment, use this equation:

(Individual Provider Revenues/$2.5 Trillion) X $50 Billion = Expected Combined General Distribution.

To estimate your payment, you may need to use “Gross Receipts or Sales” or “Program Service Revenue.” Providers should work with a tax professional for accurate submission.

This includes any payments under the first $30 billion general distribution, as well as under the $20 billion general distribution allocations. Providers may not receive a second distribution payment if the provider received a first distribution payment of equal to or more than 2% of patient revenue.

In addition, the Provider Relief Fund FAQs were updated, once again, on May 19 to address additional questions and concerns:

What should a provider do if a General Distribution payment is greater than expected or received in error? (Modified 5/19/2020)

Providers that have been allocated a payment must sign an attestation confirming receipt of the funds and agree to the Terms and Conditions within 45 days of payment. If a provider believes it was overpaid or may have received a payment in error, it should reject the entire General Distribution payment and submit the appropriate revenue documents through the General Distribution portal to facilitate HHS determining their correct payment. If a provider believes they are underpaid, they should accept the payment and submit their revenues in the provider portal to determine their correct payment.

If, as a result of the sale of a practice/hospital, the TIN that received a General Distribution payment is no longer providing health care services as of January 31, 2020, is it required to return the General Distribution payment? (Added 5/19/2020)

Yes. If, as a result of the sale of a practice/hospital, the TIN that received a General Distribution payment did not provide diagnoses, testing, or care for individuals with possible or actual cases of COVID-19 on or after January 31, 2020, the provider must reject the payment. The CARES Act Provider Relief Fund Payment Attestation Portal will guide you through the attestation process to reject the payment.

An organization purchased a practice during or after the year of the organization’s most recent tax filing and the purchased practice’s revenues are not reflected in the most recent tax return. How does the organization account for these acquisitions when submitting revenue information in the Payment Portal? (Added 5/19/2020)

An organization’s adjusted gross receipts should be calculated as gross receipts as shown on the organization’s most recent tax return plus gross receipts of the practice acquired not reflected in the organization’s tax return minus gross receipts of providers sold not reflected in the organization’s tax return. If an organization’s adjusted gross receipts exceed the gross receipts shown in the tax return by more than 20%, the organization is eligible to enter the adjusted gross receipts figure in the Provider Relief Fund Payment Portal. Otherwise, the organization should enter the gross receipts figure as shown on the tax return. Organizations that have already submitted an application in the Payment Portal can resubmit a revised application using the adjusted gross receipts number accounting for acquisitions, if the adjusted gross receipts exceeds the gross receipts shown in the tax return by more than 20%. Gross receipts of acquired entities that provide care as of January 31, 2020 and file their own tax returns cannot be included in such adjusted gross receipts figure, because they should submit their own application as tax return filers.

Can an organization that sold its only practice or facility under a change in ownership in 2019 and is no longer providing services, accept payment and transfer it to the new
owner? (Added 5/19/2020)

No. A provider that sold its only practice or facility must reject the Provider Relief Fund payment because it cannot attest that it was providing diagnoses, testing, or care for individuals with possible or actual cases of COVID-19 on or after January 31, 2020, as required by the Terms and Conditions. Seller organizations should not transfer a payment received from HHS to another entity. If the current TIN owner has not yet received any payment from the Provider Relief Fund, it may still receive funds in other distributions.

Can a provider that purchased a TIN in 2019 accept a Provider Relief Fund payment from a previous owner and complete the attestation for the Terms and Conditions? (Added 5/19/2020)

No. The new TIN owner cannot accept the payment from another entity nor attest to the Terms and Conditions on behalf of the previous owner in order to retain the Provider Relief Fund payment. If the new TIN owner did not receive a direct payment under the General Distribution, it is not eligible to receive a payment under the General Distribution. However, the new TIN owner may still receive funds in other distributions.

Should providers continue to update their high-impact data? (Modified 5/19/2020)

Providers should update their capacity and COVID-19 census data to ensure that HHS can make timely payments in the event that the provider becomes a high-impact provider. Providers can continue to update their information through the same method they used previously.

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