HHS Provides New Revenue Reporting Rules and Extends Reporting Deadline for Provider Relief Fund

On December 27, 2020, former President Trump signed the Consolidated Appropriations Act, 2021 (the “Consolidated Appropriations Act”), which included changes to the Provider Relief Fund established by the CARES Act. The Consolidated Appropriations Act revises Provider Relief Fund recipients’ reporting obligations and provides additional funding for future distributions to qualified recipients.

October 22, 2020, in contradiction to previous guidance, HHS defined “lost revenue” as “the difference between 2019 and 2020 actual patient care revenue.” The Consolidated Appropriations Act rejects this definition, and states “lost revenue” shall be defined as originally explained in HHS’ June 2020 Frequently Asked Questions, which read as follows:

You may use any reasonable method of estimating the revenue during March and April 2020 compared to the same period had COVID-19 not appeared. For example, if you have a budget prepared without taking into account the impact of COVID-19, the estimated lost revenue could be the difference between your budgeted revenue and actual revenue. It would also be reasonable to compare the revenues to the same period last year.

To implement the Consolidated Appropriations Act, on January 15, 2021, HHS released a new General and Targeted Distribution Post-Payment Notice of Reporting Requirements. The updated guidance provides new rules for the use of Provider Relief Fund payments, including a new and broader definition of lost revenue. Under this guidance, providers may choose to apply Provider Relief Fund payments towards lost revenue using one of the following options:

• Difference between 2019 and 2020 actual patient care revenue
• Difference between 2020 budgeted and 2020 actual patient care revenue. To be eligible for this methodology, the 2020 budget must have been established prior to March 27, 2020.
• Any other reasonable methodology for estimating lost revenue. The recipient must submit a description of the methodology, an explanation of why the methodology is reasonable, and establish how the identified lost revenues were in fact a loss attributable to coronavirus, as opposed to a loss caused by any other source. Providers using this methodology face an increased likelihood of an audit. 

HHS noted that the new reporting requirements and related guidance do not apply to funds from: “Nursing Home Infection Control, Rural Health Clinics Testing, and COVID-19 Claims Reimbursement to Health Care Providers and Facilities for Testing, Treatment and Vaccine Administration for the Uninsured.”

Due to the Consolidated Appropriations Act, HHS announced on Friday, January 15, 2021 that it will push back the Provider Relief Fund reporting timeline. Starting on January 15, 2021, Provider Relief Fund recipients may begin registering for gateway access to the PRF Reporting Portal where they will ultimately submit their information in compliance with the new reporting requirements HHS will issue. Though there is currently no deadline for providers to establish a reporting account in the newly enabled reporting portal, HHS has indicated that “all providers will be required to complete this first step in order to advance and fulfill their reporting requirements once HHS announces the new deadline to do so.”  Providers should continue to prepare for reporting, as it is not currently known what the new reporting deadline will be.

The Consolidated Appropriations Act also grants Provider Relief Fund payment recipients permission  to transfer funds they receive among their corporate parents and subsidiaries. Previously, HHS had indicated that, while General Distribution payments could be transferred among subsidiaries, Targeted Distribution payments were required to remain with the entity receiving and eligible for the Targeted Distribution payment.

Providers that have received Provider Relief Funds should continue to carefully track HHS’ Frequently Asked Questions and other guidance.

In the event you have questions on the CARES Act Provider Relief Fund or other COVID-19 related relief, please contact your Nyemaster Goode attorney.