The Centers for Medicare & Medicaid Services (“CMS”) is expanding the Accelerated and Advance Payment Program (the “AAP Program”) in response to the COVID-19 pandemic to allow all qualified participating Medicare providers, such as hospitals, doctors, durable medical equipment suppliers and other and suppliers, to receive accelerated payment of Medicare claims based upon billings in a certain historical period. Payments under the expanded AAP program will accelerate cash flow to impacted health care providers and suppliers during the period of the public health emergency.

Eligibility for AAP Program:

To qualify for accelerated payments under the AAP Program, a Medicare participating provider or supplier must:

  • Have billed Medicare within the 180 days prior to the request for payment under the AAP Program;
  • Not be in bankruptcy;
  • Not be under active medical review or program integrity investigation; and
  • Not have any outstanding delinquent Medicare overpayments.

Accelerated Payments under AAP Program:
Qualified providers and suppliers will be asked to request a specific amount on an “Accelerated or Advance Payment Request” form provided on each Medicare Administrative Contractor’s (“MAC”) website. Generally, eligible providers and suppliers will be able to request up to 100% of the Medicare payment amount for a three (3) month period. Inpatient acute care hospitals, children’s hospitals, and cancer hospitals may request up to 100% of the Medicare payment amount for a six (6) month period. Critical access hospitals can request up to 125% of their Medicare payment amount for a six (6) month period. Generally, accelerated payments will be issued within seven (7) calendar days of the request.

Recoupment and Reconciliation of Payments:
The provider or supplier can continue to submit claims as usual after issuance of the accelerated payment but recoupment will not begin for 120 days. Providers and suppliers will receive full payments for their claims during the 120-day delay period. At the end of the 120-day period, the recoupment process will begin and every claim submitted by the provider or supplier will be offset automatically from their new claims to repay the accelerated payment received under the AAP Program.

Inpatient acute care hospitals, children’s hospitals, certain cancer hospitals, and critical access hospitals have up to one (1) year from the date the accelerated payment was made to repay the balance of payments received under the AAP program. That means one (1) year from the date the accelerated payment was made, the MACs will perform a manual check to determine if there is a balance remaining. If so, the MACs will send a request for repayment of the remaining balance, which will be collected by direct payment. All other Part A providers and Part B suppliers will have 210 days from the date the accelerated payment was made for the reconciliation process to begin.

Steps to Request an Accelerated or Advanced Payment:
Providers and suppliers can find Accelerated/Advance Payment Request forms on their individual MAC’s Website. Providers and suppliers should complete this form and submit to their MAC via mail or email.

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As this pandemic unfolds, recommendations and requirements are being updated and changing at a rapid pace.   If you need any assistance in understanding or addressing these issues, 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.

Make sure to check Garfunkel Wild’s event page for all upcoming webinars that may address your present concerns.

Guidance issued by the United States Department of Labor (“DOL”) on April 1, 2020 has clarified what documentation an employee must provide when seeking paid benefits relating to COVID-19. When requesting paid sick leave or expanded family and medical leave, an employee must provide one’s employer either orally or in writing the following information:

  • Name;
  • The date(s) for which one is requesting leave;
  • The reason for leave; and
  • A statement that one is unable to work because of the above reason.
  • If an employee requests leave because the employee is subject to a quarantine or isolation order or to care for an individual subject to such an order, the employee should additionally provide the name of the government entity that issued the order. If the employee requests leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, the employee should additionally provide the name of the health care provider who gave advice.

If the employee requests leave to care for the employee’s child whose school or place of care is closed, or child care provider is unavailable, the employee must also provide:

  • The name of the employee’s child;
  • The name of the school, place of care, or child care provider that has closed or become unavailable; and
  • A statement that no other suitable person is available to care for the employee’s child.
  • In addition to the above information, the employee must also provide to the employer written documentation in support of the employees paid sick leave as specified in applicable IRS forms, instructions, and information.

Importantly, the above documentation obligations are in addition to all existing certification requirements under the FMLA if the employee is taking leave for one of the existing qualifying reasons under the FMLA. For example, if the employee is taking leave beyond the two weeks of emergency paid sick leave because the employee’s medical condition for COVID-19-related reasons rises to the level of a serious health condition, the employee must continue to provide medical certifications under the FMLA if required by the employer.

Finally, when in doubt whether to accept as sufficient documentation from an employee, better to err on the side of providing emergency leave benefits than run the risk of wrongfully denying benefits to a person who is entitled to them.

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As this pandemic unfolds, recommendations and requirements are being updated and changing at a rapid pace.   If you need any assistance in understanding or addressing these issues, 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.

Make sure to check Garfunkel Wild’s event page for all upcoming webinars that may address your present concerns.

 

Guidance issued by the United States Department of Labor (“DOL”) on April 1, 2020, has clarified what documentation must be maintained by employers relating to COVID-19 issues and claims for paid leave benefits. Essentially, regardless of whether employers grant or deny a request for paid sick leave or expanded family and medical leave, you must document the following:

  • The name of your employee requesting leave;
  • The date(s) for which leave is requested;
  • The reason for leave; and
  • A statement from the employee that he or she is unable to work because of the reason.
  • If your employee requests leave because he or she is subject to a quarantine or isolation order or to care for an individual subject to such an order, you should additionally document the name of the government entity that issued the order. If your employee requests leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, you should additionally document the name of the health care provider who gave advice.

If your employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, you must also document:

  • The name of the child being cared for;
  • The name of the school, place of care, or child care provider that has closed or become unavailable; and
  • A statement from the employee that no other suitable person is available to care for the child.

Private sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits. If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

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As this pandemic unfolds, recommendations and requirements are being updated and changing at a rapid pace.   If you need any assistance in understanding or addressing these issues, 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.

Make sure to check Garfunkel Wild’s event page for all upcoming webinars that may address your present concerns.

 

Garfunkel Wild Complimentary Webinar – Nursing Facility Update: 1135 Waivers and NYS Executive Orders Explained Emergency Treatment Protection Act (Immunity) And Telehealth Expansion

Tuesday, April 21, 2020
12:00 PM – 1:00 PM EDT

Speakers:  Eve Green Koopersmith 

Garfunkel Wild’s Eve Green Koopersmith will present the webinar ” Nursing Facility Update: 1135 Waivers and NYS Executive Orders Explained Emergency Treatment Protection Act (Immunity) And Telehealth Expansion” on April 15, 2020.

In this webinar, we will explain the 1135 waivers of Medicare and Medicaid regulations that specifically apply to nursing facilities to facilitate the admission, transfer, care and treatment of residents during the COVID-19 emergency, including the waiver of the 3-day prior hospitalization rule, timeframes for certain assessments, PASRR reviews and prior notice of discharge/transfer for treatment of COVID-19. We will also review the executive orders issued by the New York State Governor to expand the pool of professionals for providing care and treatment, allow for students and volunteers to practice and expand timeframe for completion of PRI. We will explain the civil and criminal immunity protections granted to facilities and professionals in the Emergency or Disaster Treatment Protection Act. Lastly, we will explain the expansion of telehealth services in nursing facility settings.

Click Here To View

 

In an effort to ensure the availability and accessibility of health care items and services, the Centers for Medicare and Medicaid Services (CMS) has issued blanket waivers of sanctions under the federal physician self-referral law (also known as the Stark Law) in response to the COVID-19 pandemic (the “Stark Blanket Waivers”).  The Stark Blanket Waivers are retroactive to March 1, 2020, and will protect only remuneration and referrals that are related to a broad set of “COVID-19 Purposes,” as more fully discussed below.  While documentation regarding use of the Stark Blanket Waivers is not required to be submitted to CMS, providers should maintain contemporaneous records to ensure compliance.  Such records are required to be made available to the Secretary of the Department of Health and Human Services upon request.

In general, the Stark Law (1) prohibits a physician from making referrals for certain “designated health services” (DHS) payable by Medicare to an entity with which he or she (or an immediate family member) has a financial relationship, unless all of the requirements of an applicable Stark Law exception are satisfied; and (2) prohibits the entity from filing claims with Medicare for DHS furnished pursuant to a prohibited referral, unless all of the requirements of an applicable Stark Law exception are satisfied.  The Stark Law is a strict liability statute, such that the intent of the parties is irrelevant, and can pose barriers to DHS referrals that might otherwise be necessary or appropriate in an emergency situation.

Importantly, the Stark Blanket Waivers will only protect remuneration and referrals that are directly between a physician (or his or her immediate family member) or physician organization and a DHS entity, and are for “COVID-19 Purposes,” which includes the following:

  • Diagnosis or medically necessary treatment of COVID-19 for any patient or individual, whether or not the patient or individual is diagnosed with a confirmed case of COVID-19;
  • Securing the services of physicians and other health care practitioners and professionals to furnish medically necessary patient care services, including services not related to the diagnosis and treatment of COVID-19, in response to the COVID-19 outbreak in the United States;
  • Ensuring the ability and expanding the capacity of health care providers to address patient and community needs due to the COVID-19 outbreak in the United States;
  • Shifting the diagnosis and care of patients to appropriate alternative settings due to the COVID-19 outbreak in the United States; or
  • Addressing medical practice or business interruption due to the COVID-19 outbreak in the United States in order to maintain the availability of medical care and related services for patients and the community.

The Stark Blanket Waivers ensure that otherwise prohibited conduct will not be subject to sanctions, again to the extent that the remuneration and referrals are related to “COVID-19 Purposes.”  Some examples of conduct that would be permissible under the Stark Blanket Waivers include, but are not limited to, the following:

  • Compensation That is Not Fair Market Value. Hospitals will be permitted to pay physicians (or their immediate family members) compensation that is not fair market value to rent equipment or office space, or receive services, from physicians (or their immediate family members), and vice versa.
  • Medical Staff Benefits. Hospitals may provide medical staff incidental benefits (e.g., meals, clothing, on-site child care, parking and other items or incidental services that are used on the hospital’s campus) to staff physicians in amounts that exceed current limits ($36 per occurrence).
  • Non-Monetary Compensation. Hospitals may provide non-monetary compensation to physicians and their immediate family members in amounts that exceed current limits of $423 per calendar year, including, but not limited to, continuing medical education related to the COVID-19 outbreak, supplies, food or other grocery items, isolation-related needs (for example, hotel rooms and meals), child care, or transportation.
  • Modification of In-Office Ancillary Services Exception. Physician referrals in a group practice for medically necessary DHS may be furnished by the group practice in a location that does not qualify as a “same building” or “centralized building.”   This will allow group practices to furnish medically necessary DHS (such as MRIs and laboratory tests) from mobile locations.

Please note that any arrangement that implicates the Stark Law or the Stark Blanket Waivers should be carefully reviewed by legal counsel prior to implementation to ensure compliance and appropriate documentation.

For more information, the full text of the Stark Blanket Waivers may be accessed at:  https://www.cms.gov/files/document/covid-19-blanket-waivers-section-1877g.pdf

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As this pandemic unfolds, recommendations and requirements are being updated and changing at a rapid pace.   If you need any assistance in understanding or addressing these issues, 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.

Make sure to check Garfunkel Wild’s event page for all upcoming webinars that may address your present concerns.