On April 10, 2020, CMS made $30 billion in aggregate Public Health and Social Services Emergency Fund (“Relief Fund”) payments to providers, with each provider receiving a proportionate distribution based on how much that provider billed Medicare fee-for-service in 2019. Providers receiving Relief Fund payments authorized by the CARES Act must submit an attestation to compliance with the Relief Fund Payment Terms and Conditions (“Terms and Conditions”) within 30 days of payment. Providers that received their funding late last week or early this week should note that the 30 day deadline began to toll from the date funds were received, not from portal availability. On April 16, 2020, CMS made available the portal through which providers may complete the attestation and agree to the Terms and Conditions.
Retention of Relief Fund payments requires that providers attest that they will abide by certain Terms and Conditions – namely that providers will use the funding “to prevent, prepare for, and respond to coronavirus” and that that funds received reflect “expenses or lost revenues that are attributable to coronavirus.” Importantly, providers may be required to submit reports to confirm compliance with the Terms and Conditions; however those reporting requirements have not yet been defined. The Terms and Conditions state that reporting requirements shall be “as the Secretary determines are needed to ensure compliance with conditions that are imposed on this Payment” and that “reports shall be in such form, with such content, as specified by the Secretary in future program instructions.” It is possible that HHS may require an accounting of how Relief Fund payments were used, so providers may find it helpful to preserve contemporaneous records to prepare for any eventual reporting requirement (including year over year performance to document lost revenue opportunity).