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Provider Relief Fund (PRF): General and Targeted Distributions

On September 19, 2020, the US Department of Health and Human Services released updated guidance indicating how recipients of Provider Relief Fund (PRF) payments must account for and report lost revenues and expenses. PRF recipients must review this guidance, understand the impact of these new obligations and continue to monitor for evolving information as part of their ongoing compliance efforts.

IN DEPTH


On September 19, 2020, the US Department of Health and Human Services (HHS) released much-anticipated Provider Relief Fund (PRF) guidance articulating how lost revenues and expenses will be accounted for and addressing recipient reporting requirements. The guidance applies generally to PRF recipients that received one or more PRF payments exceeding $10,000 in the aggregate, but does not apply to the Nursing Home Infection Control distribution, the Rural Health Clinic Testing distribution, and reimbursement from the Health Resources and Services Administration (HRSA) Uninsured Program. It is imperative that PRF recipients consider the possible implications of this updated guidance, especially the manner in which HHS has articulated recipients may use PRF payments to cover “lost revenue.” Recipients should also continue to monitor the PRF FAQs guidance for additional clarifications on reporting requirements.

In Depth

The Provider Relief Fund (PRF) is funded through appropriations in the Coronavirus Aid, Relief, and Economic Security (CARES) Act (P.L. 116-136) and the Paycheck Protection Program and Health Care Enhancement Act (P.L. 116-139). The CARES Act imposed certain reporting obligations on PRF recipients and authorized HHS to impose additional reporting and document retention requirements. In turn, the PRF Terms and Conditions (T&Cs), to which recipients must attest to keep their PRF payments, require recipients to submit reports on the use of the PRF funds as specified by the HHS Secretary. For an overview of the PRF distributions, see our MWE/M+ summary chart.

According to the new guidance, recipients will report on the use of their PRF payments by first submitting information on their healthcare-related expenses attributable to coronavirus for which another funding source is not financially responsible. This may include general and administrative (G&A) expenses and/or healthcare-related operating expenses.

Next, any PRF payment amounts that were not fully expended on healthcare-related expenses attributable to coronavirus are then applied to the provider’s “lost revenues,” now defined as the provider’s lost margin. In particular, the remaining PRF payments may be applied to offset the negative change in year-over-year net patient care operating income (patient care revenue less patient-care-related expenses), net of the healthcare-related expenses attributable to coronavirus calculated in step one. The guidance further notes that recipients that reported negative net operating income from patient care in 2019 may apply PRF amounts to lost revenues up to a net zero gain/loss in 2020.

Some observers may not have expected these clarifications because HHS repeatedly referred to “lost revenues” generally in previous guidance, and the term “lost revenues” is now being defined inconsistently with the common meaning of the term (i.e., as lost income/margin). The CARES Act statutory text and Terms and Conditions for the affected distributions simply refer to “lost revenues” and prior guidance suggested a more standard definition of “lost revenues.” It is worth noting, however, that if lost revenues could have been applied to expenses irrespective of the impact on margin, this would have introduced the possibility of PRF funding making a healthcare provider more profitable in 2020 than it was in 2019, depending on whether that recipient reduced its expenses. This development could lead to legal challenges of HHS’ definition of “lost revenues” in the PRF program, particularly given the sub-regulatory nature of the definition.

If recipients do not expend their PRF funds in full by the end of calendar year 2020, they will have an additional six months to use the remaining amounts. The extra six-month reporting period (January–June 2021) will be compared to the same period in 2019 for the purposes of making calculations.

The updated guidance does not cover auditing requirements. More information regarding applicable auditing requirements can be found in the PRF FAQs guidance and in our MWE/M+ summary chart.

Data Elements

Under the new guidance, recipients will be required to report several data elements, including demographic information, information about their expenses attributable to coronavirus, information about their lost revenues and additional (non-financial) information. Recipients also must report information on changes in ownership and their Single Audit status (if known at the time of reporting).

Recipients that received between $10,000 and $499,999 in aggregated PRF payments must report healthcare-related expenses attributable to coronavirus (net of other reimbursed sources) in two aggregated categories: (1) general and administrative (G&A) expenses and (2) other healthcare-related expenses. Recipients that received $500,000 or more in PRF payments are required to report healthcare-related expenses attributable to coronavirus (net of other reimbursed sources) by reporting more detailed information within those two categories, according to several sub-categories enumerated in the guidance.

Recipients must also provide information on their lost revenues attributable to coronavirus. First, recipients will report information on their total revenue/net charges from patient-care-related sources for calendar years 2019 and 2020. Recipients with unused funds after December 31, 2020, will later submit additional information that includes patient-care-related revenue amounts earned between January 1 and June 30, 2021. Recipients will report this revenue information by payer type. Recipients will also be required to report information on other assistance they received in 2020.

Finally, HHS will require recipients to submit certain non-financial data. This information will include metrics on personnel, patients and facilities. Recipients that acquired or divested of related subsidiaries must also submit information regarding that change in ownership. Recipients must also report whether they are subject to Single Audit requirements in 2020. If so, they must report whether their PRF payments were selected as within the scope of their Single Audit (if the recipient knows this information at the time of reporting).

Deadlines

The updated guidance did not explicitly revise the deadlines articulated in the previous guidance released on July 20, 2020, except to say that the reporting portal will be available in early 2021 (instead of on October 1, 2020). The other deadlines appear to remain unchanged. However, as with previous PRF deadlines, these deadlines may be adjusted as the reporting mechanism is implemented. Important reporting deadlines are highlighted below:

  1. All recipients must report within 45 days of the end of the calendar year 2020 (i.e., by February 15, 2021) on their expenditures through the period ending December 31, 2020. Note: 45 days falls on Sunday, February 14, 2021, so we expect further clarification.

  2. Recipients who have expended funds in full prior to December 31, 2020, may submit a single final report at any time during the first reporting window (early 2021 through February 15, 2021).

  3. Recipients with funds still unexpended after December 31, 2020, must submit a second and final report no later than July 31, 2021.

CARES Act Section 15011 Reporting Requirements

In addition, Section 15011 of the CARES Act (and the PRF T&Cs) requires recipients of more than $150,000 in total funds appropriated under the CARES Act, the Families First Coronavirus Response Act (P.L. 116-127), or any other Act “primarily making appropriations for the coronavirus response and related activities” to submit a report to HHS and the Pandemic Response Accountability Committee within ten (10) days following the end of each calendar quarter. HHS previously indicated that PRF recipients’ reporting obligations under Section 15011 of the CARES Act are satisfied by HHS’s public reporting on the identity of PRF recipients and the amount of PRF funds received.

The September 19, 2020, updated guidance did not provide further clarification on whether HHS’s public reporting will continue to satisfy the Section 15011 requirement and did not further specify how (or whether) the reporting information announced in the guidance relates to the Section 15011 requirement. Recipients should continue to monitor the PRF website and guidance for updates on the Section 15011 requirement and any future PRF reporting details. For now, the updated guidance provides important details for recipients who will need to submit reports in 2021 on their use of the PRF funds.

Conclusion

Ensuring Provider Relief Fund payments are spent appropriately is likely to remain a high priority for HHS. As developments regarding lost revenue calculations reporting demonstrate, recipients should closely monitor evolving Provider Relief Fund guidance to support their ongoing compliance efforts and should examine the possible implications of this updated reporting guidance.

© 2020 McDermott Will & EmeryNational Law Review, Volume X, Number 265
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Charles Buck, Complex Transactions Lawyer, Regulatory Compliance, McDermott Will
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