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 http://www.regulations.gov. 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 Miranda@milliganlawless.com, 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.

Miranda Preston
Written by: Miranda Preston

In response to COVID-19, the Secretary of the U.S. Department of Health and Human Services (HHS) declared a public health emergency on January 31, 2020 (the “Public Health Emergency”).  On March 28, 2020, Centers for Medicare & Medicaid Services (CMS) announced that it was expanding its Accelerated and Advance Payment Program (the “Program”) to a broader group of Medicare Part A providers and Part B suppliers for the duration of the Public Health Emergency.  CMS’s stated objective for the Program’s expansion is to increase cash flow to service providers and suppliers impacted by COVID-19.

This article provides an overview of the expanded Program and information about how to request advanced Medicare reimbursement.

Eligibility Requirements

To qualify for advance payments, providers must: (1) have billed Medicare for claims within 180 days immediately prior to the request; (2) not be in bankruptcy; (3) not be under active medical review or program integrity investigation; and (4) not have any outstanding delinquent Medicare overpayments.

How to Request Advance Payment

To request advanced payment under the Program, healthcare providers must submit the applicable request form to their applicable Medicare Administrative Contractor (MAC).  Each MAC may have its own, distinct request form. A request form is available on each MAC’s website. The request forms must be signed by an authorized representative of the healthcare provider, and can be submitted to the appropriate MAC via email, fax or mail.  Request forms submitted electronically are likely to be processed faster than their non-electronic counterparts.

In the request form’s “Reason for Request” field, CMS has directed providers to state: (1) the request is due to delay in provider/supplier billing process of an isolated temporary nature beyond the provider’s/supplier’s normal billing cycle and not attributable to other third-party payers or private patients; and (2) the request is for an accelerated/advance payment due to the COVID-19 pandemic.

How Much Advanced Payment Can I Request

Providers can request up to three months of advance Medicare payments. Providers must state their current monthly Medicare billing amount on the request form.  However, some healthcare providers, such as critical access hospitals, inpatient acute care hospitals, children’s hospitals and certain cancer hospitals (collectively, “Other Providers”), may request additional amounts, over longer periods of time.  

When to Expect Payment

According to CMS, MACs are already accepting and processing request forms, and payments will be issued within seven calendar days of receiving the request form.  If the MAC denies the request, there is no appeals process.

Repayment and Recoupment

The recoupment process for advanced payments for most healthcare providers begins 120 days after the date on which the MAC makes the advanced payments (the “Grace Period”).  Providers will continue to receive payment in full during the Grace Period .  Following the Grace Period, the MAC will recoup the advanced payments by offsetting payments otherwise owed to the provider.  

For a small subset of Medicare Part A providers receiving Period Interim Payments, and Other Providers, there are lengthier repayment periods.  For all other healthcare providers, the entire balance of advanced payments must be repaid or recouped within 210 days after the date the MAC makes the advanced payments.  It is likely that interest will accrue (at the rates applicable to Medicare overpayments) for advance payments outstanding after the 210-day repayment period, though CMS has not yet clarified this.

Additional Resources

CMS has published a fact sheet on the advance payment process, which is available here.  Each MAC has established COVID-19 hotlines to assist providers with advance payment requests.  Noridian’s COVID-19 Hotline number is: 866-575-4067.  For additional information about CMS’s Accelerated and Advance Payment Program, please contact Miranda Preston at Miranda@milliganlawless.com, or another health care attorney at Milligan Lawless.

Written by: John A. Conley

In response to the Coronavirus (COVID-19) pandemic, the U.S. Centers for Disease Control and Prevention (“CDC”) encouraged employers to consider implementing telecommuting practices to reduce the risk of infection among their workforce.[1] Those employers who implement telecommuting practices should ensure they have an updated, relevant, written telecommuting agreement in place.  A strong telecommuting agreement will address:

  • Employee eligibility for telecommuting
  • Expectations for work hours
  • Equipment and cybersecurity
  • HIPAA and protected health information security (for certain healthcare-related employers)
  • Safety of the remote working location
  • Liability to third-parties
  • Tax and zoning issues
  • Other issues unique to your business

For those employees ineligible to telecommute, the CDC recommends keeping the workplace safe by encouraging employees to:

Practice good hygiene
Stop handshaking
Use other non-contact methods of greeting
Clean hands at the door and schedule regular hand washing reminders by email
Create habits and reminders to avoid touching their faces and cover coughs and sneezes
Disinfect surfaces like doorknobs, tables, desks, and handrails regularly
Increase ventilation by opening windows or adjusting air conditioning

Be careful with meetings and travel
Use videoconferencing for meetings when possible
When not possible, hold meetings in open, well-ventilated spaces
Consider adjusting or postponing large meetings or gatherings
Assess the risks of business travel

Handle food carefully
Limit food sharing
Strengthen health screening for cafeteria staff and their close contacts
Ensure cafeteria staff and their close contacts practice strict hygiene

Stay home if
They are feeling sick
They have a sick family member in their home.[2]

For more information about employee telecommuting or otherwise adapting your employment policies and practices to meet the challenges of the COVID-19 pandemic, please contact John Conley at john@milliganlawless.com.


[1] Get the PDF here, accessed March 16, 2020.

[2] Get the second PDF here, accessed March 16, 2020.


Written by: Lauren A. Crawford

On January 31, 2020, the U.S. Citizenship and Immigration Services (“USCIS”) published a new edition of Form I-9, the Employment Eligibility Verification (the “New Form I-9”). See USCIS, Announcements: What’s New, USCIS I-9 Central (Jan. 31, 2020) (available at USCIS ). Although the changes to Form I-9 are relatively minor, all employers must use the New Form I-9, beginning no later than May 1, 2020 or face potential penalties.

What is a Form I-9?
An employer uses a Form I-9 to verify the identity and employment authorization of their employees. An employer must complete a Form I-9 each time any person is hired to perform labor or to perform services in the United States in return for wages or other remuneration .

Do I have to use the New Form I-9?
Yes. All employers must use the New Form I-9, beginning no later than May 1, 2020. After April 30, 2020, any employer who fails to use the New Form I-9 may be subject to penalties under section 274A of the Immigration and Nationality Act, 8 U.S.C. § 1324(a), as enforced by U.S. Immigration and Customs Enforcement.

What is different about the New Form I-9?
USCIS made minor changes as follows: See Notice, 85 Fed. Reg. 5683 (Jan. 31, 2020).
Changes to the form:
The New Form I-9 now includes revised options in the “Country of Issuance” field in Section 1 and the “foreign passport issuing authority” field in Section 2 consistent with certain countries’ name changes. Id. These changes are only visible when completing the fillable New Form I-9 on a computer.

Changes to the instructions:

  • Clarified who may act as an employer’s authorized representative
  • Updated USCIS’ website address
  • Provided clarifications on “acceptable documents” for Form I-9
  • Updated the process for requesting a paper Form I-9
  • Updated the Department of Homeland Security’s Privacy Notice

USCIS also issued a revised handbook for employers, “Handbook for Employers M-274: Guidance for Completing Form I-9,” that includes the changes. The revised handbook is available on USCIS’ website and linked here.

Do I need to complete the New Form I-9 for existing employees?
No.  For current employees who already have a properly completed Form I-9 on file, employers do not need to complete a New Form I-9 unless reverification applies. 

Where can I get the New Form I-9?
Click on the links to access the New Form I-9 and instructions.  Additional forms, supplements, and Spanish-language versions (for use in Puerto Rico only) are available on USCIS’ website and linked here.

For additional information regarding the New Form I-9, please contact Lauren Crawford (Lauren@milliganlawless.com).  For other employment-related questions, please contact John Conley (John@milliganlawless.com) or Kylie Mote (Kylie@milliganlawless.com).

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