News and Insights

Visit regularly for up-to-date information on relevant news, firm announcements and additions to our AZ Health Law Blog.

Miranda Preston
Written by: Miranda Preston

On April 3, 2020, CMS published an Interim Final Rule (“IFR”) implementing a number of temporary waivers regarding various Medicare requirements, including telehealth.  The IFR builds on the guidance CMS issued on March 30, 2020 and provides a sweeping set of additional new rules and waivers of federal requirements applicable during the during the COVID-19 Public Health Emergency (PHE).

This article summarizes some of the IFR’s key provisions.

Expansion of Telehealth Services

On March 6, 2020, in response to the COVID-19 pandemic, Medicare began temporarily paying for telehealth services for Medicare patients located anywhere in the country, including a patient’s home. Previously, patients were required to travel to an originating site to receive telehealth services.  The IFR expands the scope of Medicare’s telehealth benefits by adding 80 new services to the list of telehealth codes reimbursable by Medicare during the PHE, and waives certain limitations on the frequency of which certain telehealth services can be provided.  For the duration of the PHE, practitioners will be paid at the same rate as if they furnished the service in person. CMS instructed providers furnishing telehealth to report the same place of service the provider would have reported if the service was rendered in person, and to include modifier 95 to indicate the service was rendered via telehealth. Unfortunately, the IFR also clarifies that physical therapists, occupational therapists, and speech pathologists still may not provide telehealth services.

Direct Supervision via Telecommunication

Traditionally, direct supervision requires the physician to be physically present in the office suite and immediately available to furnish assistance and direction throughout the performance of the procedure.  The IFR permits a physician to provide direct supervision remotely, using real-time interactive audio and video technology, when the use of such technology is indicated to reduce exposure risks for the beneficiary or health care provider.  CMS noted that it does not believe telecommunication-based supervision will be appropriate in all cases, and leaves the decision whether telecommunication supervision is appropriate to the practitioners.  This temporary change also applies to services provided incident to a physician’s services, as such services require direct supervision.

Face-to-Face Visits via Telecommunication

Hospice patients must be certified as terminally ill at the beginning of hospice care and at subsequent intervals throughout hospice care. Current regulations require hospice physicians or NPs to have a face-to-face encounter with each Medicare hospice patient if the patient’s hospice stay is expected to last a certain duration.  The IFR allows the face-to-face recertification visit to be performed via telehealth. Similarly, for inpatient rehabilitation facilities, physicians must conduct face-to-face visits with patient at least three days per week. During the PHE, such face-to-face visits may also be conducted via telehealth.

Separate Payment for COVID-19 Specimen Collection

CMS created special specimen collection codes for the collection of specimens for COVID-19 diagnostic testing for homebound patients. During the PHE, Medicare-enrolled independent labs can bill Medicare for the specimen collection fee and for the applicable travel allowance, at rates that are higher than Medicare’s typically nominal specimen collection reimbursement rates. 

Changes to Medicare Quality Programs

CMS acknowledges that many providers participating in Medicare quality programs may not be able to submit their data in a timely manner, and their data may be distorted for a variety of reasons. Accordingly, the IFR implements a number of policy changes to the Merit-based Incentive Payment System (MIPS) to allow providers continued participation in these programs. These changes include extending deadlines; establishing a COVID-19-related Improvement Activity promoting clinician participation in COVID-19 clinical trials; and modifying the extreme and uncontrollable circumstances policy.

Comments to the IFR are due by June 1, 2020, and can be submitted electronically to and by following the ‘‘Submit a comment’’ instructions, or by mail as further detailed in the IFR.  In addition to the guidance and the IFR, on March 30, 2020, CMS issued a series of other temporary waivers, including a blanket waiver of sanctions under the Stark Law.  For additional information about the IFR or other CMS waivers, please contact Miranda Preston at, or another health care attorney at Milligan Lawless.

Andres Sanchez
Written by: Andres Sanchez

On Thursday, April 2, 2020, the U.S. Small Business Administration (SBA) issued an interim final rule implementing the Paycheck Protection Program (PPP) loan program under the CARES Act. The rule is effective immediately. This article summarizes key borrower provisions in the rule.

On April 2nd, the SBA also posted a new PPP loan application on its website. You can access the updated loan application here.

One Loan per Borrower

The rule clarifies that no eligible borrower can receive more than one PPP loan. Accordingly, businesses should apply for the maximum amount for which they qualify.

Although businesses can apply for and receive PPP loans from April 3, 2020 until June 30, 2020, the loans will be issued on a “first-come, first-served” basis until the $349 Billion authorized by Congress for the program is fully allocated. Businesses should therefore submit their loan application with an SBA approved lender as soon as possible.

Loan Applications

In order to apply for a PPP loan with an SBA approved lender, an applicant will need to complete and submit the PPP loan application, together with sufficient documentation to establish eligibility and demonstrate the qualifying payroll amount. This includes payroll processor records, payroll tax filings, Form 1099-MISC, or income or expenses from a sole proprietorship.

Electronic signatures or consents can be used for loan applications regardless of the number of owners of an applicant.

Clarification of PPP Loan Terms

The rule clarifies that PPP loan amounts that are not forgiven will have a two-year repayment period, with a 6-month deferment period for all interest and principal payments; however, interest will continue to accrue during the deferment period. The interest rate will be a 1.00% fixed rate.

Limitation on use of Loan Proceeds and Forgiveness

Although the CARES Act allows loan proceeds to be used for non-payroll costs, such as mortgage interest or rent payments and utility payments, the rule requires at least 75% of the PPP loan proceeds must be used for payroll costs to be eligible for loan forgiveness. Consequently, non-payroll costs may not exceed 25% of the forgivable loan amount.

The rule defines “payroll costs” as including:

  • Salary, wages, commissions or similar compensation to employees whose principal place of residence is the United States;
  • Cash tips or equivalent (based on employer records of past tips or in the absence of such records, a reasonable, good faith employer estimate);
  • Payment for vacation, parental, family, medical, or sick leave;
  • Allowance for separation or dismissal;
  • Payment for employee benefits consisting of group health coverage, including insurance premiums, and retirement;
  • Payment of state and local taxes assessed on compensation of employees; and
  • For independent contractor or sole proprietors, wage, commissions, income, or net earnings from self-employment.

However, payroll costs expressly exclude:

  • Any compensation of an employee whose principal place of residence is outside the United States;
  • Compensation of an individual employee in excess of an annual salary of $100,000;
  • Federal employment taxes imposed or withheld between February 5, 2020 and June 30, 2020 including the employee’s and employer’s share of FICA and income taxes required to be withheld from employees; and
  • Qualified sick and family leave wages for which a credit is allowed under the Families First Coronavirus Response Act.

The rule also states that independent contractors do not count as employees for purposes of PPP loan calculations, since they can apply for a PPP loan on their own account.

We will provide further updates following additional guidance from the SBA. Specifically, the rule states that the SBA will publish additional guidance regarding the applicability of its “affiliation” rules and loan forgiveness.

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