By John H. Fisher II
April 22, 2020
The Health and Human Services (HHS) Office of Inspector General (OIG) issued a Policy Statement on March 17, 2020 regarding the waiver of amounts owed by beneficiaries for services provided by telehealth. Recognizing the unique circumstances resulting from the COVID-19 outbreak, the OIG states that it will not subject physicians and other practitioners to OIG administrative sanctions for waiving coinsurance, deductible amounts, or other beneficiary payment obligations that may be owed for telehealth services that are consistent with the then-applicable coverage and payment rules. Additionally, in order to benefit from this forbearance, the telehealth services must be furnished during the time period subject to the COVID-19 Declaration. The COVID-19 Declaration refers to the HHS Secretary’s January 31, 2020, determination that a public health emergency existed commencing January 27, 2020.
It is important to look at the exact nature and extent of the waiver that OIG is providing. The waiver is focused on the provision of free services and assumes that a patient receives remunerations when a physician discounts or waives a portion of the patient’s obligation. The OIG clarifies that they will not view the furnishing of subsequent services occurring as a result of the free telehealth services as evidence of an inducement.
The OIG Policy Statement was intended to notify physicians and other practitioners that they will not be subject to administrative sanctions for reducing or waiving any cost-sharing obligations federal health care program beneficiaries may owe for telehealth services furnished consistent with the then-applicable coverage and payment rules, subject to the conditions specified herein. The waivers last through the duration of the COVID-19 Declaration. Unless extended, a public health declaration lasts until the emergency no longer exists or for a period of 90 days.
Ordinarily, routine reductions or waivers of cost sharing amounts, such as coinsurance and deductible amounts, can violate the Federal Anti-Kickback Statute. That statute makes it a federal felony to pay or receive remuneration where part of the reason for the payment is to induce referrals. The government has long taken the position that the waiver of an amount the patient is required to pay can be considered “remuneration” triggering the application of the Anti-Kickback Statute.
The government’s view on waivers of patient cost sharing amounts changes during a pandemic. The government now has an over-riding need to assure the people receive needed care. At the same time, the government has an interest reducing the need for patients to physically visit a clinic to reduce the risk of further transmission. Telehealth can be a perfect medium to permit doctors to assess a patient initially to determine whether the patient is in need of higher levels of care. The medium is being heavily used in connection with the COVID-19 virus due to its ability to leverage physician time and for its ability to help quell the spread of the virus.
We will continue to monitor developments in this area. We have numerous clients who are engaged in telehealth and we expect that one of the long term impacts of the pandemic will be the expansion of telehealth.
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