SBA Issues PPP Guidance for Sole Proprietors and Business Partners

April 17, 2020

The U.S. Small Business Administration (SBA) has issued supplemental guidance for the Paycheck Protection Program (“PPP”) for self-employed individuals who will file a Form 1040 Schedule C to report their self-employment income in 2019. This Interim Final Rule entitled “Business Loan Program Temporary Changes; Paycheck Protection Program – Additional Eligibility Criteria and Requirements for Certain Pledges of Loans” provides more detailed guidance on the PPP criteria for sole proprietors and business partners, explaining: “if you are a partner in a partnership, you may not submit a separate PPP loan application for yourself as a self-employed individual. Instead, the self-employment income of general active partners may be reported as a payroll cost, up to $100,000 annualized, on a PPP loan application filed by or on behalf of the partnership.”

NPBD Waives Fees

April 17, 2020

The National Practitioner Data Bank (NPDB) is temporarily waiving query fees (both one-time query and continuous query). The waiver is retroactive from March 1, 2020, through May 31, 2020. The NPDB will issue query credits to reimburse entities that conducted queries (one-time and continuous) between March 1 and the implementation of the fee waiver. Click here for more information.

Kentucky Board of Emergency Medical Services Publishes Emergency Regulations for Flexibility During Crisis

April 17, 2020

The Kentucky Board of Emergency Medical Services (KBEMS) has recently issued Emergency Orders waiving and modifying certain regulations for the period of the State of Emergency declared by Governor Beshear on March 6, 2020. The Emergency Orders (issued April 9 and April 14) and the modified regulations may be found here. Of particular note, licensed ambulance agencies have been given more flexibility to provide emergency and non-emergency patient transports if local ambulance agencies are not able to timely respond. This change would allow for more expeditious patient transport in the event of a surge of COVID-19. Additionally, KBEMS modified the regulations for individual licensees, such as paramedics and EMTs, related to temporary licensure during this State of Emergency.

Kentucky DPH Fact Sheet for Requesting PPE

April 17, 2020

The Kentucky Department of Public Health (DPH) issued a Request PPE Fact Sheet to provide guidance to any agency, business or healthcare facility that is requesting Personal Protective Equipment (PPE) through the State Emergency Operations Center (SEOC). The guidance applies to: N95 Masks, Isolation Gowns, Face Shields, Surgical (Droplet) Masks, Examination Gloves and Coveralls. The SEOC will distribute PPE according to four tiers of priority as set forth on the Fact Sheet. The Fact Sheet includes a PPE Request Flowchart and notes that the only way to request the PPE is through the links on the Fact Sheet (requests received via e-mail, telephone or text cannot be processed). The DPH has also supplied guidance on Strategies for Optimizing the Supply of PPE. The PPE Fact Sheet, PPE Strategies guidance, and other healthcare provider guidance are posted under the “Healthcare Providers” section of KyCovid19.ky.gov.

CMS Implements CARES Act Hospital Payment and Inpatient Rehabilitation Facility Waivers

April 17, 2020

CMS has implemented increased payment rates established by the CARES Act. Significantly, as they relate to Medicare IPPS Hospitals reimbursed under the Diagnostic Related Group (DRG) consolidated billing methodology, CMS is increasing the weighting factor of the assigned DRG by 20 percent for an individual diagnosed with COVID-19 discharged during the COVID-19 Public Health Emergency (PHE) period. IPPS Hospitals should ensure they use the specific ICD-10-CM diagnosis code in the billing for such patients:

  • B97.29 (Other coronavirus as the cause of diseases classified elsewhere) for discharges occurring on or after January 27, 2020, and on or before March 31, 2020.
  • U07.1 (COVID-19) for discharges occurring on or after April 1, 2020, through the duration of the COVID-19 public health emergency period.

CMS is also waiving certain requirements for IRFs and LTCHs during the PHE. For IRFs, the 15 hours of therapy required for Part A inpatients is waived. For LTCHs, certain site neutral payment rate provisions are being waived. CMS has also included these updates in its lengthy (now lengthier) waivers document.

Stark Waivers Might Clash with Anti-Kickback Statute

April 17, 2020

On March 30, 2020, HHS issued blanket waivers to permit eighteen types of financial relationships that would otherwise violate the Physician Self-Referral (“Stark”) Law when those financial relationships relate to a defined “COVID-19 Purpose.” However, in this April 3, 2020 statement, the HHS Office of Inspector General (OIG) said that seven of the permitted financial relationships under the Stark waivers may still potentially violate the Anti-Kickback Statute (AKS) and expose providers to sanctions under the AKS. The OIG is inviting providers who have questions about possible conflicts between the Stark law waivers and the Anti-Kickback statutes to submit such questions by email to OIGComplianceSuggestions@oig.hhs.gov with a sufficient description to allow for an understanding of the key parties and terms of the arrangement at issue. This invitation to consult with the OIG, on what appears to be an informal basis, is highly unusual for the OIG, and warrants consultation with counsel before doing so. Providers should also be careful to maintain contemporaneous documentation of the rationale and circumstances surrounding the use of the Stark waivers.

CMS Expanding Medicare Coverage for Essential Diagnostic Tests

April 17, 2020

CMS, the Department of Labor, and the Department of Treasury issued joint guidance this week that is intended to ensure that Americans with private health insurance have coverage for COVID-19 diagnostic testing and related services at no cost. Specifically, coverage is required for both diagnostic testing and antibody testing and certain related items and services provided during a medical visit, with no cost sharing. This guidance will be helpful to employers that sponsor group health plans and insurers that provide health insurance coverage or provide third party administration services to group health plans. Please refer to this article by Sherry Porter for additional information.

CMS Increases Medicare Payment for High-Production Coronavirus Tests

April 17, 2020

On April 15, 2020, CMS issued Ruling No. CMS-2020-01-R stating that Medicare will pay $100 for COVID-19 clinical diagnostic lab tests that use high-throughput technologies for rapid diagnosis of large numbers of COVID-19 cases. High-throughput lab tests can process more than 200 specimens a day and are expected to be instrumental in diagnosing and controlling the spread of COVID-19, especially in facilities such as nursing homes that house large numbers of people vulnerable to COVID-19. Medicare Administrative Contractors will continue to develop payment amounts for other COVID-19 laboratory tests.

Next Round of Provider Relief Funds to Target COVID-19 “Hot Spots” t Round of Provider Relief Funds to Target COVID-19 “Hot Spots”

April 17, 2020

The first $30 billion of the $100 billion in CARES Act Emergency Relief Fund payments was disbursed to providers who, in 2019, received Medicare Fee-for-Service (FFS) reimbursements. As a result of being limited to FFS providers, many rural hospitals and providers who bill another provider under Part A consolidated payment rules (e.g., therapists providing Part A services to skilled nursing facilities), were left out. On April 15, 2020, the CMS Administrator, Seema Verma, told reporters that the next wave of hospital funding, expected this week, will partially target providers in hot spots that have been hit hard by COVID-19. Some hospital groups have been critical that the first round of funds didn’t go to areas with the most COVID-19 cases and was based on hospitals’ Medicare fee-for-service volumes, rather than also allocating for hospitals’ Medicaid and low-income volumes. It is still unclear how much money will be paid out to hospitals and other providers this week.

The CARES Act $30 Billion to Medicare FFS Providers Has Strings Attached

April 17, 2020

Beginning April 10, 2020, the Department of Health and Human Services (HHS) disbursed $30 billion of the $100 billion of Emergency Relief Fund provided under the CARES Act. Although Centers for Medicare & Medicaid Services (CMS) Administrator Seema Verma had stated that the Relief Fund payments have “no strings attached,” any provider who received a payment must sign an Attestation agreeing to certain Terms and Conditions.The Terms & Conditions include an agreement to comply with limitations on the use of the payments (i.e., only for COVID19-related care) and to submit reports regarding how the payment was used. The Attestation is to be submitted via the CARES Act Provider Relief Fund Payment Attestation Portal available on the HHS CARES Act Provider Relief Fund webpage. For additional information about the Terms & Conditions associated with the Relief Fund payments, see the article authored by Kathie McDonald-McClure and Victoria Fuller.