UPDATE: Relief Fund Attestation Specifics

This article is one in a series related to the Medicare Relief Fund.  For articles related to the Relief Fund, visit Medicare Relief Funds Hit Your Account: Can You Keep Them?, UPDATE: Medicare Relief Funds Attestation Now Available, and Should You Keep the Medicare Provider Relief Funds and If So, What are the Compliance Risks?

 As noted in a previous article, the new Attestation Portal is available to providers that receive Medicare relief funding. In this article, we review the specific language included in the portal and points of emphasis for providers.

Once a provider completes and clicks through the initial pages of the portal, he or she will reach “Step 4,” the actual attestation phase.  The provider must review the specific attestation language and then check a box to confirm review and agreement on two separate attestation pages.  The provider is required to confirm the following:

• The specific amount received from the Relief Fund and accept the Terms and Conditions tied to the funding. The provider will be able to access the Terms and Conditions through a hyperlink.  You can also find a copy of the Terms and Conditions here.  We recommend thoroughly reviewing the Terms and Conditions before accessing the portal.
• That if the provider receives a payment from the Relief Fund and retains it for at least 30 days without seeking to remit it, the provider is deemed to have accepted the Terms and Conditions. It also notes that the Terms and Conditions accessible through the portal are not exhaustive and the provider must comply with any other relevant statutes and regulations, as applicable.
• The understanding that non-compliance with any Term or Condition is grounds for the Secretary of Health and Human Services (HHS) to recoup some or all of the payment made from the Relief Fund and that the requirements related to the funding also apply to subrecipients and contractors, unless an exception is specified.
• Eligibility for payment. The portal also notes that providers or provider contractors may be asked to submit documentation to determine eligibility for payment and providers will be required to provide “any and all information related to the disposition or use of the funds” for auditing and/or reporting purposes.
• That HHS or its contractor may make adjustments to the payment “whenever a correction or change is required,” including by reversing an improper credit. The adjustment is not subject to any time constraint, except as required by law.

In the final step, the provider must confirm whether it accepts or rejects payment.

Now that the contents of the attestation and the portal are available, we offer the following thoughts:

• It appears HHS has a broad view of COVID-19 diagnoses, testing, and care. The Terms and Conditions state that the provider must provide or have provided after January 31, 2020 diagnoses, testing, or care for individuals with possible or actual cases of COVID-19.  The Relief Fund web site makes clear that “[c]are does not have to be specific to treating COVID-19.  HHS broadly views every patient as a possible case of COVID-19.”
• Maintain documentation. The contents of the portal reaffirm the importance of maintaining documentation of all COVID-19-related expenses as well as lost revenue that is attributable to COVID-19.  It is clear from the portal that HHS intends to audit providers.  Documentation will be critical if audited.
• No “double-dipping.” The Terms and Conditions provide: “The Recipient certifies that it will not use the Payment to reimburse expenses or losses that have been reimbursed from other sources or that other sources are obligated to reimburse.”  For example, if a provider is receiving funds from the Paycheck Protection Program (PPP), it should ensure that Relief Funds are not used for the same expenses/losses covered by the PPP.
• Do not assume that because you received Relief Funds you are eligible to keep them. Carefully review the Terms and Conditions and statutory language and seek advice where needed.  In the portal, HHS signaled its intent to go after ineligible providers who received Relief Funds and do not remit them.
• Check the math. HHS has provided a rough guide to how Relief Funding was determined, see here.  Providers that determine gross differences between expected and received funding should contact HHS or seek counsel from advisors.
• Do not skip the “Statutory Provisions” cited at the end of the Terms and Conditions. The Provisions contain a number of restrictions on use of funds that are as important as the bulleted Terms and Conditions.

For more information, please contact Hedy S. Rubinger or Alexander B. Foster.