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CARES Act Temporarily Suspends Sequestration: How Will It Affect Provider Reimbursement?

One of the many relief efforts contained in the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), signed into law on March 27th, 2020, is a hiatus of sequestration as it applies to Medicare payments. Section 4408 of the CARES Act exempts Medicare from the effects of sequestration from May 1, 2020, through December 31, 2020. [1] It also postpones the sunset of sequestration as it applies to Medicare from the end of 2029 to the end of 2030.

As background, on January 2, 2013, “sequestration,” automatic spending cuts applicable to all categories of the Federal budget, went into effect. Sequestration included a 2.0% reduction in most Medicare spending, and as a result of its implementation, many providers experienced reductions in their reimbursement. In addition to traditional fee-for-service Medicare payments, some Medicare Advantage plans reduced reimbursement under their contracts with providers to reflect the effect of sequestration, effectively passing on to providers the reductions in premiums recovered by such plans due to sequestration. Even non-Medicare reimbursement was affected for many providers whose participation agreements with plans contained fee schedules based off of Medicare reimbursement.

While this suspension of sequestration is certainly good news for providers participating in traditional fee-for-service Medicare, and plans offering Medicare Advantage products, the effect the suspension will have on reimbursement for providers participating in Medicare Advantage or commercial lines of business which rely on Medicare rates is slightly less clear.

To the extent that a provider’s rates were reduced due to sequestration in the past, and those reductions have continued over the years, providers may have grounds to assert that their rates should be increased in an amount equal to the amount by which they were reduced during this suspension period. For providers participating in agreements that have provisions that explicitly address the effect of legislative changes to payments such as sequestration, such agreements should be reviewed. In more recent agreements that do not directly address the issue, it may be more difficult to ascertain the effect sequestration has had on reimbursement under the agreement – and, therefore, the effect of this suspension.

This temporary suspension of sequestration may provide some helpful relief to providers during these difficult economic times. Providers should not, however, assume that the suspension of sequestration reductions will be seen across all products without the need for further action. Each arrangement between plan and provider will need to be reviewed to determine the effect this suspension will have on the arrangement, if any. Providers hoping for this particular economic relief should review both their participation agreements and their remittance advice and consult with counsel to determine what effect, if any, the sequestration suspension should have, and is having, on their reimbursement.

[1] https://www.congress.gov/bill/116th-congress/senate-bill/3548/text?q=product+update#toc-id509ABAE6EB2846AFAF3F1D78DAB8137B

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 128

TRENDING LEGAL ANALYSIS


About this Author

Arthur J. Fried, Health Care, Life Sciences, Attorney, Epstein Becker, Law firm
Member

ARTHUR J. FRIED is a Member of the Firm in the Health Care and Life Sciences practice, in the firm's New York office. He represents all types of health care providers, including academic medical centers, hospitals, and faculty practices.

Mr. Fried:

  • Advises hospitals, academic medical centers, and other providers in such areas as strategic health system development, physician integration, health care reform, medical staff matters, and governance

  • Provides advice on...

212-351-4710
Gregory R. Mitchell Epstein Becker Health Care Lawyer
Associate

Gregory R.  Mitchell is an Associate in the Health Care and Life Sciences practice, in the New York office of Epstein Becker Green.

Mr. Mitchell:

  • Negotiates and drafts managed care agreements by and among managed care companies, insurers, hospitals, health systems, independent practice associations (IPAs) and similar provider organizations, behavioral health and substance use disorder treatment providers, physicians, and ancillary providers relating to Medicare Advantage, Medicaid managed care, as well as fully-insured and self-insured lines of business
  • Negotiates and drafts agreements relating to innovative payment models, including full-risk/capitation, bundled payment, and shared savings/losses models
  • Prepares agreements relating to the delegation of management functions by managed care entities to third parties
  • Negotiates and prepares managed care agreements between health care providers and managed care entities and insurers for reimbursement in traditional reimbursement models
  • Advises health care clients on general corporate and business transactions

In addition, Mr. Mitchell has spoken and coauthored articles on various health care topics including social determinants of health, encounter data, and the Affordable Care Act’s impact on health insurance and providers. 

Before joining Epstein Becker Green, Mr. Mitchell was an attorney in the Health Services and Corporate Practice Groups of a Long Island law firm.

While attending Emory University School of Law, Mr. Mitchell interned with the general counsel’s office at the Centers for Disease Control and Prevention and with the general counsel for a multinational pharmaceutical company. He was the recipient of the American Bar Association Health Law Section and Bureau of National Affair’s Award for Excellence in the Study of Health Law. Mr. Mitchell also obtained a Master of Science in Bioethics, focusing on clinical ethics, from Union Graduate College and the Icahn School of Medicine at Mount Sinai.

212-351-4763
Jackie Selby, Epstein Becker, Health Care Attorney,
Member

JACKIE SELBY is a Member of the Firm in the Health Care and Life Sciences practice, in the firm's New York office.

Ms. Selby:

  • Negotiates agreements by and among managed care companies, insurers, hospitals, health systems, physicians and ancillary providers

  • Advises clients on compliance with state and federal health care laws and regulations

  • Counsels clients on third-party payor reimbursement and operational...

212-351-4627