Author: Brian Werfel

Brian S. Werfel, Esq. is a partner in Werfel & Werfel, PLLC, a New York based law firm specializing in Medicare issues related to the ambulance industry. Brian is a Medicare Consultant to the American Ambulance Association, and has authored numerous articles on Medicare reimbursement, most recently on issues such as the beneficiary signature requirement, repeat admissions and interrupted stays. He is a frequent lecturer on issues of ambulance coverage and reimbursement. Brian is co-author of the AAA’s Medicare Reference Manual for Ambulance, as well as the author of the AAA’s HIPAA Reference Manual. Brian is a graduate of the University of Pennsylvania and the Columbia School of Law. Prior to joining the firm in 2005, he specialized in mergers & acquisitions and commercial real estate at a prominent New York law firm. Werfel & Werfel, PLLC was founded by David M. Werfel, who has been the Medicare Consultant to the American Ambulance Association for over 20 years.

CMS: Revised Repayment Terms for Medicare Accelerated Payments

On October 8, 2020, the Centers for Medicare and Medicaid Services (CMS) issued a Fact Sheet setting forth the repayment terms for advances made under the Medicare Accelerated and Advance Payments Program (AAPP).  These changes were mandated by the passage of the Continuing Appropriations Act, 2021 and Other Extensions Act, which was enacted on October 1, 2020.

Background

On March 28, 2020, CMS expanded the existing Accelerated and Advance Payments Program to provide relief to Medicare providers and suppliers that were experiencing cash flow disruptions as a result of the COVID-19 pandemic, and associated economic lockdowns.  Under the AAPP, Medicare providers and suppliers were eligible to receive an advance of up to three months of their historic Medicare payments.  These advances are structured as “loans,” and are required to be repaid through the offset of future Medicare payments.

CMS began accepting applications for Medicare advances in mid-March 2020, before ending the program in late April following the passage of the CARES Act.  CMS ultimately approved more than 45,000 applications for advances totaling approximately $100 billion, before it suspended the program in late April 2020.

Under the pre-existing terms of the AAPP, repayment through offset was required to commence on the 121st day following the provider or supplier’s receipt of the advance funds.  The program also called for a 100% offset until all advanced funds had been repaid.

Revised Payment Terms

Under the revised payment terms announced by CMS, providers and suppliers will not be subject to recoupment of their Medicare payments for a period of one year from the date they received their AAPP payment.  Starting on the date that is one year from their receipt of the AAPP payment, repayment will be made out of the provider’s or supplier’s future Medicare payments.  The schedule for such repayments will be as follows:

  • 25% of the provider’s or supplier’s Medicare payments will be offset against the outstanding AAPP balance for the next eleven (5) months; and
  • 50% of the provider’s or supplier’s Medicare payments will be offset against the outstanding AAPP balance for the next six (6) months

To the extent there remains an outstanding AAPP balance after that 17 month period (i.e., 29 months after the date the provider or supplier received its AAPP payment, the provider or supplier will receive a letter setting forth their remaining balance.  The provider or supplier will have 30 days from the date of that letter to repay the AAPP balance in full.  To the extent the AAPP balance is not repaid in full within that 30-day period, interest will begin to accrue on the unpaid balance at a rate of 4%, starting from the date of the letter.

Medicare providers and suppliers are also permitted to repay their accelerated or advance payments at any time by contacting their Medicare Administrative Contractor.

 

CMS: COVID Testing and Screening Guidance for SNF and Long-Term Care Facilities

On August 25, 2020, the Centers for Medicare and Medicaid Services (CMS) published an interim final rule with a comment period titled “Medicare and Medicaid Programs, Clinical Laboratory Improvement Amendments of 1988 (CLIA), and Patient Protection and Affordable Care Act; Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency.”  The interim final rule sets forth a number of new requirements designed to limit the COVID-19 exposure and to prevent the spread of COVID-19 within nursing homes.

Specifically, the interim final rule requires skilled nursing and other long-term care facilities to test residents and staff for COVID-19.  The frequency of such testing is based on the positivity rate in which the facility is located, and can require COVID-19 testing as frequently as twice per week.  Regardless of the frequency of required COVID-19 tests, facilities must also screen all staff, residents, and persons entering the facility for the signs and symptoms of COVID-19.

These requirements extend to individuals that provide services to nursing homes under arrangements, including health care personnel rendering care to residents within the facility.  In subsequent guidance, CMS clarified that these testing and screening requirements apply to EMS personnel and other health care providers that render care to residents within the facility.  However, in that same guidance, CMS indicated that EMS personnel must be permitted to enter the facility provided that: (1) they are not subject to a work exclusion as a result of to an exposure to COVID-19 or (2) showing signs or symptoms of COVID-19 after being screened.”  CMS further indicated that “EMS personnel do not need to be screened so they can attend to an emergency without delay.”

In plain terms, CMS has created an affirmative obligation on nursing homes to ensure that any individual that provides services under a contractual arrangement with the nursing home comply with these testing and screening requirements.  CMS has expressly waived the screening requirements for EMS personnel responding to medical emergencies at a nursing home.  However, CMS has not specifically addressed the testing and screening requirements applicable to EMS personnel responding to nursing homes in non-emergency situations. 

The A.A.A. is aware that a handful of State Health Agencies have issued their own guidance on this issue.  The A.A.A. is also aware that individual nursing homes have started to require proof that EMS personnel have been tested for COVID-19 prior to allowing these individuals to enter the nursing home in a non-emergency situation.

EMS agencies may already be subject to state and local testing mandates.  EMS agencies may also have their own internal policies that require employees to be periodically tested for COVID-19.  As a result, there exists the potential for conflict where these existing testing policies conflict with the testing requirements of your local nursing homes.

The A.A.A. has been engaged in an ongoing conversation with CMS on these issues since the issuance of the interim final rule in August.  As part of that conversation, the A.A.A. pushed for the exclusion of EMS personnel from the screening requirement when responding to medical emergencies, which was included in the recent CMS guidance document.  The A.A.A. also continues to push for additional funding for COVID-19 testing for EMS agencies.  CMS has recognized that the frequent testing of health care workers is essential to reducing the spread of the novel coronavirus.  CMS has allocated funding for these purposes to other industries, including hospitals and nursing homes.  As front-line health care workers, EMS agencies should have similar access to testing funds.  The A.A.A. will continue to push for funding equity for the EMS industry.

In the interim, we strongly encourage our members to work with their state associations and other stakeholders to advocate for reasonable rules related to testing on the state and local levels.  To the extent the applicable state or local agency has determined the appropriate frequency for the testing of EMS personnel responding to medical emergencies, those rules should also apply to EMS personnel responding to scheduled transports and other non-emergencies that start or end at a nursing home.  Requiring more frequent testing in these situations would impose an undue burden on EMS agencies that provide these services.  More frequent testing may also prove counterproductive, as it may discourage EMS agencies that cannot meet these higher requirements from responding in these situations.  We also encourage our members to continue to push for state and local funding for the testing of their employees.

 

U.S. House of Representatives Approves Continuing Resolution

On September 22, 2020, the U.S. House of Representatives approved a continuing resolution to keep the government funded through December 11, 2020.  Under current law, government funding is set to expire at midnight on September 30, 2020. The House resolution is a stopgap measure that would maintain funding for most government programs at their current…

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Preliminary Calculation of 2020 Ambulance Inflation Update

Section 1834(l)(3)(B) of the Social Security Act mandates that the Medicare Ambulance Fee Schedule be updated each year to reflect inflation.  This update is referred to as the “Ambulance Inflation Factor” or “AIF”. The AIF is calculated by measuring the increase in the consumer price index for all urban consumers (CPI-U) for the 12-month period…

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Department of Health and Human Services Extends Deadline to Apply for Provider Relief Funds

The Department of Health and Human Services (HHS) recently announced that it would be extending the deadline for health care providers to apply to receive general distribution funding from the HHS Provider Relief Fund.  The deadline to apply for these funds was previously June 3, 2020. Relevant Background On March 27, 2020, President Trump signed…

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CMS Announces Resumption of Program Integrity Functions

On July 7, 2020, CMS updated its Coronavirus Disease 2019 (COVID-19) Provider Burden Relief Frequently Asked Questions (FAQs).  As part of this update, CMS indicated that it would resume several program integrity functions, starting on August 3, 2020.  This includes pre-payment and post-payment medical reviews by its Medicare Administrative Contractors (MACs), the Supplemental Medical Review…

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IRS Guidance on Taxation of HHS Provider Relief Funds

On July 7, 2020, the Internal Revenue Service published a series of Frequently Asked Questions that address the taxation of payments to health care providers under the HHS Provider Relief Fund. As part of the Coronavirus Aid, Relief and Economic Security Act (CARES Act), Congress appropriated $100 billion to reimburse eligible health care providers for…

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CMS Issues Additional Staffing and Licensing Waivers

On May 1, 2020, CMS updated its “COVID-19 Frequently Asked Questions (FAQs) on Medicare Fee-for-Service (FFS) Billing.”  The full document can be viewed by clicking here. In the updated FAQ, CMS answers three important questions related to ambulance vehicle and staffing requirements: Expired Ambulance Operating Licenses. CMS was asked whether a ground ambulance vehicle operating…

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COVID-19 Uninsured Program Now Includes Air, Water

HHS Updates Guidance on Provider Relief Funding for Uninsured to include Air and Water Ambulance The Department of Health and Human Services recently updated its guidance on the disbursement of provider relief funds under the CARES Act for the testing and treatment of the uninsured.  Previously, HHS indicated that this allocation was only available for…

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UPDATED: What to Do for Round 2 of HHS Provider Relief

UPDATED: HHS Opens Portal for Healthcare Providers and Suppliers to Apply for Second Tranche of CARES Act Provider Relief Funding Updated April 24, 2020 at 9:40 pm | Register for AAA’s  4/27 webinar on this topic► At 5 p.m. on Friday, April 24, 2020, the Department of Health and Human Services opened the online portal…

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HHS Announces Plans for Distribution of Remaining CARES Act Provider Relief Funding

HHS Announces Plans for Distribution of Remaining CARES Act Provider Relief Funding By Brian S. Werfel, Esq. March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).  As part of that Act, Congress allocated $100 billion to the creation of a “CARES Act Provider Relief Fund,” which…

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FAQs – HHS CARES Act Provider Relief Funding

Frequently Asked Questions (FAQs) related to HHS CARES Act Provider Relief Funding By Brian S. Werfel, Esq. In March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).  As part of that Act, Congress allocated $100 billion to the creation of a “CARES Act Provider Relief Fund,”…

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CMS: Medical Necessity & Patient Signature Requirements During COVID-19

CMS Clarifies Medicare Requirements Related to Medical Necessity and the Patient Signature Requirement during Current National State of Emergency By Brian S. Werfel, Esq. On April 9, 2020, CMS updated its Frequently Asked Questions (FAQs) for billing Medicare Fee-For-Service Claims during the current national state of emergency.  This document includes guidance for numerous industry types,…

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HHS Announces Release of Initial Tranche of CARES Act Provider Relief Funding

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).  As part of that Act, Congress allocated $100 billion to the creation of a “CARES Act Provider Relief Fund,” which will be used to support hospitals and other healthcare providers on the front lines of the…

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CMS Announces Delay to ET3 Start Date

On April 8, 2020, the Centers for Medicare and Medicaid Services (CMS) announced that it will be delaying the start of the Emergency Triage, Treat and Transport (ET3) Model until Fall 2020.  The ET3 Model was previously set to start on May 1, 2020.  CMS cited the national response to the COVID-19 pandemic as the…

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Summary of Financial Relief Provisions Under the CARES Act

AAA Operations & Human Resources Consultant Scott Moore, Esq has developed a summary of financial relief provisions from the recent CARES Act. The resource will help your organization evaluate in which programs it may qualify to participate. Download the CARES Act Financial Relief Comparison Download the Paycheck Protection Program Calculator…

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CMS “Pauses” Prior Authorization Model for Scheduled, Repetitive Non-Emergency Ambulance Transportation

CMS released published a guidance document summarizing some of the steps that it has taken to relieve the administrative burden on health care providers and suppliers during the current public health emergency.  As part of that document, CMS indicated that it will be “pausing” the Prior Authorization Model for scheduled, repetitive non-emergency ambulance transports.  Under…

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