By Adrienne Dresevic, Esq. and Arturo Trafny, Esq. of The Health Law Partners, P.C.
On January 31, 2020, the Secretary of the Department of Health and Human Services (HHS) issued a Determination that a Public Health Emergency Exists (the “Declaration”) in response to the 2019 novel coronavirus (COVID-19) outbreak. Following the Declaration, and in response to the continued spread of COVID-19 throughout the nation, HHS Office of Inspector General (OIG) issued a Policy Statement on March 17, 2020 (the “Policy Statement”) to notify practitioners (e.g., radiology providers) that OIG would not subject them to administrative sanctions for reducing or waiving any cost-sharing obligations for telehealth services to Federal health care program beneficiaries if the reduction/waiver meets the two (2) following conditions:
- A practitioner reduces or waives cost-sharing obligations (e., coinsurance and deductibles) that a beneficiary may owe for telehealth services furnished consistent with then-applicable coverage and payment rules.
- The telehealth services are furnished during the time period subject to the Declaration.
The Policy Statement specified that the applicable time period for the COVID-19 Declaration is either 90-days following the Declaration (i.e., April 26, 2020) or the date in which the HHS Secretary declares that the public health emergency no longer exists, whichever occurs first. However, note that the HHS Secretary may extend the applicable COVID-19 Declaration time period for subsequent 90-day periods, for as long as the public health emergency continues.
Generally, a routine reduction/waiver of such cost-sharing obligations would implicate the Federal Anti-Kickback Statute, Civil Monetary Penalty (“CMP”) and exclusion laws related to kickbacks, and the CMP law prohibition on inducements to beneficiaries. However, the OIG believes that regulatory flexibility is necessary for an adequate response to the nation’s unique circumstances regarding the COVID-19 outbreak. Note that practitioners must still comply with all other applicable coverage and payment rules as well as CMS’ programmatic rules and regulations.
Lastly, note that the Policy Statement provides that OIG reserves the right to reconsider the issues raised in the Policy Statement and to modify/terminate the Policy Statement.
Currently, healthcare providers and suppliers may reduce or waive cost-sharing obligations for Federal health care program beneficiaries without OIG subjecting them to administrative sanctions if the two conditions above are met. As the timeframe for the Policy Statement coincides with the Declaration timeline (which ends on the earlier of April 26, 2020 or the HHS Secretary’s determination the public health emergency no longer exists), healthcare providers and suppliers should periodically check for updates regarding the timeframe of the Declaration and Policy Statement. Additionally, healthcare providers and suppliers should periodically check for updates from OIG that modify or terminate the Policy Statement.
For more information on issues relating to this article, please contact Adrienne Dresevic, Esq. at (248) 996-8510 or by email at firstname.lastname@example.org.
Adrienne Dresevic, Esq, is a Founding Shareholder of The Health Law Partners, P.C., a nationally recognized healthcare law firm with offices in Michigan and New York. Practicing in all areas of healthcare law, she devotes a substantial portion of her practice to providing clients with counsel and analysis regarding compliance, Stark Law, Anti-Kickback Statute, and compliance related issues. Ms. Dresevic serves on the American Bar Association Health Law Section’s Council, which serves as the voice of the national health law bar within the ABA. Ms. Dresevic is the Budget Officer for the ABA Health Law Section and was the Past Co-Chair for the Physicians Legal Issues Conference for three years. She is licensed to practice law in Michigan and New York, and can be contacted at email@example.com.
Arturo Trafny, Esq, is an associate attorney at the Health Law Partners, P.C. Mr. Trafny graduated from Chicago-Kent College of Law. Practicing healthcare law, Mr. Trafny concentrates on regulatory and transactional matters.
The authors are members of The Health Law Partners, PC and may be reached at (248) 996-8510 or (212) 734-0128, or at www.thehlp.com.