On May 19, the Department of Health and Human Services (HHS) announced that eligible providers seeking an additional payment from the Provider Relief Fund must accept the Terms and Conditions provided and submit an application by June 3, 2020. The second distribution, unlike the first, requires most providers to take action in order to receive additional funds, including submitting 2018 revenue information. Only providers that received a payment from the initial distribution of $30 billion are eligible to receive a payment from the remaining $20 billion.

HHS also updated its FAQs to include further clarification regarding eligibility for payments where the tax identification number (TIN) used for billing by a provider may have changed from 2019 to 2020 (e.g., merger, sale, change of practice). Notably, it confirmed that the person or entity associated with the billing tax identification number (TIN) (as opposed to, for example, individual providers in a group) must meet the applicable Terms and Conditions. One of the conditions for retaining the payments is that the provider treated possible or suspected COVID-19 patients after January 31, 2020; however, providers that did not may still have received a payment if it billed Medicare fee for service (FFS) in 2019. The FAQs clarified that any such provider must reject the payment if it did not treat possible or suspected COVID-19 patients after January 31, 2020 through the same TIN that was used to bill Medicare FFS in 2019.

In addition, some providers were “overpaid” when they received the initial payment because of HHS changing the allocation formula for the entire $50 billion after the first payments were already sent out. The distribution of the initial $30 billion was based on the provider’s “share” of Medicare FFS billings, whereas now the distribution of the entire $50 billion is intended to equal approximately 2% of the providers’ 2018 total net revenue. Providers who received more than that cannot apply for more, and if a provider has not yet attested to receipt of the funds, the FAQs clarify that a provider that believes it may have been overpaid must reject the entire payment and submit its revenue information so HHS can make a payment in the correct amount. It is not clear, however, what a provider should do that now believes it was overpaid but already attested to receipt of the funds.

Providers should carefully review the FAQs if they are unsure whether they are eligible for a payment, and consult with Garfunkel Wild. Providers must also carefully document how any funds are utilized. HHS has indicated it will audit providers and recoup any payments that were made in error or that exceed lost revenue or increased expenses due to COVID-19. Furthermore, failure to comply with the Terms and Conditions is also grounds for recoupment.

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Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

Click Here to download the Legal Alert.


New York:
In March, Governor Andrew Cuomo had issued a ban on elective surgery in general hospitals, ambulatory surgery centers (“ASCs”), diagnostic and treatment centers and office based surgery settings throughout New York. As of May 20, 2020, Governor Cuomo has announced that elective surgeries and non-urgent procedures were permitted to restart in most counties of New York (including most upstate counties and Suffolk, Nassau and Westchester counties) in all ambulatory settings. In furtherance of the resumption of elective procedures, the New York State Department of Health (“NYDOH”) has issued separate guidance for general hospitals and ambulatory facilities regarding the requirements for performance of elective surgeries and non-urgent procedures. The guidance addresses important issues such as COVID-19 testing for patients, employee screening, PPE, infection control and social distancing.

New Jersey:
Governor Phil Murphy is similarly allowing resumption of elective surgeries. Specifically, pursuant to Executive Order No. 145, hospitals and ambulatory settings are permitted to gradually resume the full scope of their services beginning May 26, 2020, when possible and safe to do so in accordance with New Jersey Department of Health’s (“NJDOH”) Guidance. Such facilities must adhere to a number of requirements before resuming elective surgeries and invasive procedures in order to minimize the spread of COVID-19 and to ensure such facilities have sufficient capacity to deal with any future surges. For instance, ASCs should not perform procedures on COVID-19 positive patients and must document before each surgery day that they have a transfer agreement with an acute healthcare facility, which must have the appropriate number of intensive care unit (“ICU”) and non-ICU beds to support potential need.

Healthcare professionals are also permitted to resume non-urgent care and elective procedures in office settings but must take precautions to protect patients and staff from COVID-19 in accordance with New Jersey Division of Consumer Affair’s (“NJDCA”) Guidance. Healthcare professionals must, among other things, facilitate social distancing, promote enhanced office cleaning and disinfection practices, establish rigorous protections for staff and stay informed on all relevant guidance. Healthcare professionals that have direct contact with a patient’s face, eyes, or mouth (e.g., dentists, otolaryngologists and eye care professionals) must implement additional safeguards as set forth in NJDCA’s Guidance.

Although there was no formal Executive Order ending elective surgical cases in Connecticut, the Connecticut state government did communicate the message that only urgent and emergent cases were to be done in ASCs during the pandemic. Connecticut is reemphasizing hospitals and ambulatory surgery centers to follow the guidance from Center for Medicaid and Medicare Services (“CMS”), the Center for Disease Control and the American College of Surgeons to ensure that necessary surgical care resumes safety and effectively once a 14-day decline has been achieved and when adequate testing and PPE exists to protect patients and providers alike.

The full-text of the guidance materials referenced in this alert is available at the following links:
• NYDOH –https://coronavirus.health.ny.gov/system/files/documents/2020/05/guidance-for-elective-surgery-and-non-urgent-procedures-in-ambulatory-settings.pdf
• NYDOH – Hospitals: https://coronavirus.health.ny.gov/system/files/documents/2020/05/elective-surgery-notification_4_29_20.pdf
• NJDOH – Hospitals: https://nj.gov/health/legal/covid19/5-19-2020_HospitalGuidance_forResumingElectives.pdf
• NJDOH – Ambulatory: https://nj.gov/health/legal/covid19/5-19-2020_ASCGuidance_forResumingElectives.pdf
• NJDCA – Healthcare Professionals: https://www.njconsumeraffairs.gov/COVID19/Documents/DCA-AO-2020-07.pdf
• CMS Guidance: https://www.cms.gov/files/document/covid-flexibility-reopen-essential-non-covid-services.pdf
• Joint Guidance from Professional Societies: https://www.facs.org/covid-19/clinical-guidance/roadmap-elective-surgery

Click here to register for Garfunkel Wild’s Webinar “Practical Aspects for ASCs and OBS Reopening” on Thursday, May 21, 2020, at 4:00 p.m.

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Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

Click Here to download the Legal Alert.


Garfunkel Wild Complimentary Webinar – Practical Aspects for ASCs Reopening

Thursday, May 21, 2020
4:00 pm – 5:15 pm (EDT)

Moderator: Andrew E. Blustein, Garfunkel Wild, P.C.
Panelists: Teresa Chaisson, Senior Director Clinical Support, Compliance and Risk Management, Physicians Endoscopy; Monica Ziegler, Administrator, Manhattan Ambulatory Surgery Center; Roy Breitenbach, Partner Director, Garfunkel Wild, P.C.; and Nicholas Melchiorre and Dr. Andrew Brooks, Accurate Diagnostic Labs/ Rutgers RUCDR – Joint Venture.

Garfunkel Wild will present the webinar “Practical Aspects for ASCs Reopening” on May 21, 2020.

There are many questions around the process of re-opening. While specific state guidance may vary, there are many steps necessary to assure compliance and staff and patient safety. Hear from experienced ASC professionals who will share strategies to help prepare for opening.

In this panel discussion, we will address:

  • Infection Prevention (Before and During Operations)
  • The Administrator’s Role (Checklist Issues, Surge Demand and Prioritizing Cases)
  • Human Resource Issues (Imposing on Employees, Refusal to wear masks, Required testing, Navigating potential discrimination claims, Liability for COVID exposure)
  • Testing Choices (Saliva vs Blood tests for patients and employees – the role in reopening, Reimbursement and demand issues).

Click here to view webinar.


On May 15, 2020, the Federal Trade Commission issued a blog post warning operators of nursing homes and adult care facilities that they cannot require residents on Medicaid to turn over their stimulus checks to the facility. The FTC explains that under the CARES Act, those economic stimulus payments are considered a tax credit. Tax credits do not count as “resources” under any federal benefits program such as Medicaid. This means that the government cannot seize a tax credit. This also means that the resident’s receipt of a stimulus check will have no impact on the resident’s eligibility for Medicaid. The FTC warning:

  • Nursing homes and adult care facilities cannot take the federal stimulus checks a resident receives just because the resident is on Medicaid.
  • Any facility that has already taken stimulus checks, must immediately stop and return such funds to the appropriate resident.
  • Consumers are encouraged to contact their state attorney general first and then the FTC if they are aware of a facility engaging in wrongful practice regarding these funds.

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Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

Click Here to download the Legal Alert.


The recently enacted New York State FY 2021 Budget created a new Public Health Law Section 3605-c which, if implemented, would prohibit Licensed Home Care Service Agencies (LHCSAs) from providing or claiming for services provided to Medicaid recipients without being authorized to do so by contract with the NYS Department of Health (DOH). This restriction would apply to LHCSAs providing such services under the state Medicaid plan, a plan waiver, or through a managed care organization (e.g., managed long term care plan).

A key provision in the new statute is that its provisions shall not apply unless DOH has obtained any necessary federal approvals to receive federal financial participation in the costs of services that would be provided by LHCSAs under the contracts contemplated by the new law.

If implemented, the statute would require DOH to contract with enough LHCSAs to ensure that Medicaid recipients have access to care. DOH would be required to post a request for proposals (RFP) on its website that would include a description of the proposed services to be provided pursuant to contract and the criteria for DOH’s selection of LHCSA contractors. The statute sets forth some of the selection criteria, including but not limited to: demonstrated cultural and language competencies specific to the population of recipients and the available workforce; experience serving individuals with disabilities; demonstrated compliance with all applicable federal and state laws and regulations, including but not limited to labor and employment and anti-discrimination laws, etc.

Prospective contactors would have at least 30 days after DOH posts the RFP on its website to make a submission seeking selection. After contracts are awarded, DOH could terminate a LHCSA’s contract, or suspend or limit a LHCSA’s rights and privileges under a contract, upon 30-days written notice if the Commissioner of Health finds that a LHCSA has failed to comply with the provisions of Section 3605-c or any regulations promulgated under the statute.

Also, if the statute is implemented, authorization received by LHCSAs under Section 3605-c would not substitute for them satisfying licensure requirements or the screening and enrollment process required for participation in the Medicaid program.

The new statute likely evolved from a recommendation made by the Medicaid Redesign Team II (MRT) that would limit the number of LHCSAs authorized to provide services to Medicaid recipients. Under the MRT proposal, DOH would award contracts to LHCSAs based on factors related to quality of services, the ability to deliver administrative efficiencies in operations, and other criteria.

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Currently, there is no clear timeline as to when DOH will issue an RFP. Garfunkel Wild will continue to monitor this situation closely for further developments. However, should you have any questions, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

Click Here to download the Legal Alert.