FCC Releases $200M COVID-19 Telehealth Program Guidance: Your Questions Answered

On April 2, 2020, the Federal Communications Commission (“FCC”) released its Report and Order 20-44 outlining how it plans to distribute $200 million appropriated to it by the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”). The COVID-19 Telehealth Program (the “Program”) will allow eligible providers to be reimbursed for “telecommunication services, information services, and devices necessary to enable provision of telehealth services, on a temporary basis.”

The FCC will make the COVID-19 Telehealth Program Application and Request for Funding Form (the “Application”) publicly available as soon as the Office of Management and Budget (the “OMB”) approves the Program’s information collection requirements, and will begin accepting Applications immediately thereafter. Program funds will be distributed on a first-come, first-served basis and are capped at $200 million. Thus, early applicants will have a better chance of receiving the limited funding. Providers who are interested in seeking funding should familiarize themselves with the Program’s requirements and take steps to ensure they are prepared to submit their applications once the process is opened.

As discussed below, eligible providers will be able to use Program funds to purchase a range of eligible devices and services including internet connectivity services, smart phones or tablets, asynchronous audio/video platforms, and devices used for remote patient monitoring. The Program will terminate when the funding is exhausted or when the pandemic ends, whichever occurs earlier. While more guidance is needed to fully understand the reimbursement mechanics, it appears that an eligible provider will be awarded a sum certain amount of money based on projected costs of eligible services or devices described in the provider’s Application. After purchasing the eligible services or devices, the eligible provider will be required to submit an invoice supporting the costs of its purchases. The FCC will then reimburse the eligible provider an amount supported by the invoices.

Pursuant to FCC guidance released on April 8, 2020, providers must take three immediate steps if they are interested in applying. First, the provider must file FCC Form 460 to receive a determination regarding the provider’s eligibility for the Program. Each service site that will be included in the Application must obtain an eligibility determination, thus each service site must file a separate FCC Form 460.[1] Second, the provider must obtain a FCC Registration Number (“FRN”) using the Commission Registration System (“CORES”). The FRN is a unique 10-digit code assigned to the registrant and is used by the FCC to “identify the registrant’s business dealings with the FCC.” Among other information, providers will need their taxpayer identification number to obtain a FRN. Finally, interested providers must register with the System for Award Management (“SAM”). Among other information, a DUNS number is required to register with SAM, thus providers may need to first obtain a DUNS number here.

We have prepared a FAQ below to assist those interested in exploring eligibility or applying for the Program. At the end of each FAQ, we provide certain steps providers should consider taking to prepare for the Application process.

Frequently Asked Questions

(1)        Who is Eligible for Program funding?

“Eligible health care providers” are “nonprofit and public eligible health care providers” that fall within the following categories:

1. post-secondary educational institutions offering health care instruction, teaching hospitals, and medical schools;
2. community health centers or health centers providing health care to migrants;
3. local health departments or agencies;
4. community mental health centers;
5. not-for-profit hospitals;
6. rural health clinics;
7. skilled nursing facilities; or
8. consortia of health care providers consisting of one or more entities falling into the first seven categories.[2]

Interested providers should analyze whether they fall within any of the eight categories (i.e., determine whether the provider is an “eligible health care provider”), and submit FCC Form 460 (one for each service location) to determine eligibility, if the provider has not done so previously.

(2)        What can Program funds be used for?

Funds can be used to purchase telecommunication or information services and connected devices to provide “connected care services.” Examples include:

• telecommunication services, such as voice or internet connectivity services, etc.
• information services, such as remote monitoring and patient reported outcome platforms, store and forward services, asynchronous data/image transfers for physician interpretation, synchronous audio and video consultation platforms, etc.
• connected devices such as smart phones, tablets, broadband enabled blood pressure and pulse-ox monitors, telemedicine kiosks or carts for the provider’s site, etc.[3]

“Connected care services” means “a subset of telehealth that uses broadband Internet access service-enabled technologies to deliver remote medical, diagnostic, patient-centered, and treatment-related services directly to patients outside of traditional brick and mortar medical facilities—including specifically to patients at their mobile location or residence.” Examples of connected care services delivered to patients at their residence or mobile locations include:

• remote patient monitoring (e.g., use of patient reporting outcome platforms, glucometers, pulse oximeters, sphygmomanometers, chest straps, wearables, passive sensors, or other devices to consistently monitor patient vitals);
• patient health education;
• store and forward services (e.g., asynchronous transfer of patient images and data for interpretation by a physician); and
• synchronous video consultations and visits.[4]

Funds cannot be used for, among other things:

• unconnected devices that patients can use at home and then share the results with their medical professional remotely;
• administrative costs associated with participating in the Program (e.g., costs for completing the Application or other submission);
• other miscellaneous expenses (e.g., staff time spent on the Program).[5]

Provided that Program funds are used “to prevent, prepare for, and respond to coronavirus,” the funds can be used to treat all patients (i.e., both patients with or without COVID-19). While not required, Providers are strongly encouraged to use the funds to provide care for high-risk and vulnerable patients.[6]

Providers interested in applying should identify and document services and devices the provider needs to provide “connected care services” and analyze and document how the identified devices and services will be used “to prevent, prepare for, and respond to coronavirus.” The FCC has indicated that eligible services and devices will allow greater access to telehealth, thus such use of the funds may “prevent” coronavirus by facilitating social distancing.[7] Additionally, providers may analyze and document data regarding the number of high-risk and vulnerable patients.

(3)        What information is required to complete the Application?

FCC’s Wireline Competition Bureau’s guidance (pg. 4-6)  provides details regarding the information and supporting documentation that providers will need to complete the Application process. Providers can utilize this guidance to begin accumulating information and documents needed for the Application.

(4)        Are providers required to make certifications?

Each applicant must certify at the time of submission that it:

• will comply with the Health Insurance Portability and Accountability Act (“HIPAA”) and other applicable privacy and reimbursement laws and regulations;
• will comply with applicable medical licensing laws and regulations, as waived or modified in connection with the COVID-19 pandemic;
• will comply with all applicable Program requirements and procedures, including the requirement to retain records to demonstrate compliance with the Program’s requirements and procedures for three years following the last date of service, subject to audit; and
• is not already receiving or expecting to receive other federal or state funding for the exact same services or devices for which the provider is requesting support under the Program.[8]

(5)        When and how to apply for Program funding?

Once the OMB approves the Application, the FCC will begin accepting Applications immediately thereafter. Providers will submit the Application via an online portal on the FCC website. Providers can monitor the FCC’s “Keep Americans Connected” for more information regarding the Application release and the online portal opening dates. In addition to the online portal, at a later date, providers will need to submit a copy of their Application via the FCC’s Electronic Comment Filing System (“ECFS”) under “WC Docket No. 20-89.”[9]

(6)        How will eligible providers be reimbursed?

The Wireline Competition Bureau and the Office of the Managing Director (the “OMD”) have not yet provided guidance regarding the specific reimbursement mechanisms.

Selected applicants may be required to submit invoices and other supporting documentation, on a monthly basis, in support of the costs incurred due to permitted expenditures on eligible services and/or equipment. Recipients can expect to make certifications as part of the invoicing process to ensure funds were spent appropriately.[10]

Providers should consider:

• Securing financing to purchase eligible services and devices on the front end. It appears providers will be reimbursed once the purchase has been made and the provider has submitted an invoice in support of the costs for the eligible purchase. This may change based on the OMD’s procedures and guidance that we anticipate are forthcoming.
• Retrieving invoices of eligible services and devices purchased after March 13, 2020. Retroactive reimbursement will be made to providers who purchased eligible services or devices on or after March 13, 2020. Thus, providers should be prepared to submit such invoices.[11]
• Diligently maintaining all invoices and other documentation supporting compliance with Program rules to assist with the Program’s audit process.

Miscellaneous Program Information[12]

• For at least 3 years, recipients must maintain records that demonstrate compliance with Program requirements and must provide such documentation during an audit.
• Fund recipients must comply with all applicable state and federal laws, including the False Claims Act, the Anti-Kickback Statute, and the Civil Monetary Penalties Law, as waived or modified in connection to the COVID-19 pandemic.
• Program recipients do not have to undergo a competitive bidding process that is traditionally required to procure eligible services and devices, but the FCC encourages applicants to purchase cost-effective services and devices to the extent practicable.
• Providers are not barred from receiving gifts or things of value over $20 (e.g., devices, equipment, upgrades, etc.) that would otherwise be statutorily prohibited.