On March 17, 2020, OIG issued a policy statement titled, “Policy Statement Regarding Physicians and Other Practitioners That Reduce or Waive Amounts Owed by Federal Healthcare Program Beneficiaries for Telehealth Services During the 2019 Novel Coronavirus (COVID-19) Outbreak.” In short, OIG will not be subjecting physicians or other practitioners to OIG administrative sanctions if the provider reduces or waives cost-sharing obligations that a patient may owe for telehealth services for the duration of the COVID-19 public health emergency.
Normally, OIG issues penalties to providers who reduce or waive cost-sharing obligations owed by beneficiaries of federal healthcare programs on the grounds that such waivers or reductions can implicate the federal anti-kickback statute, civil monetary penalty and exclusion laws related to kickbacks, and the civil monetary penalty prohibition on inducements to beneficiaries. Notwithstanding these concerns, OIG has decided to suspend the imposition of these penalties starting January 27, 2020—the date HHS Secretary Alex Azar determined that a public health emergency exists under the Public Health Service Act. The suspension of these penalties will continue for the duration of the public health emergency, i.e. until the Secretary declares that the public health emergency no longer exists or upon the expiration of the 90-day period beginning January 27, 2020. The Secretary may extend the public health emergency declaration for subsequent 90-day periods.
On March 24, 2020, OIG issued an FAQ statement addressing various questions it has received about this policy. In particular, the OIG noted that this Policy Statement is not limited to the services governed by 42 C.F.R § 410.78 but is intended to apply to a broad category of non-face-to-face services, including telehealth visits, virtual check-in services, e-visits, monthly remote care management, and monthly remote patient monitoring. OIG also clarified that this policy applies to physicians and practitioners whether or not they have assigned their right to receive payments to eligible third-party organizations such as a hospital or other entity billing on behalf of the physician or practitioner.
This Policy Statement does not require providers to reduce or waive any cost-sharing obligations owed by beneficiaries of federal healthcare programs for telehealth services. If providers offer free telehealth services during this period, OIG will not view the provision of free telehealth services alone to be an “inducement” for future referrals. It may, however, view the provision of free telehealth services as an inducement if there is other evidence of an inducement.
It should be noted that CMS has its own rules and regulations, which remain unaffected by the OIG’s Policy Statement on this issue, and providers remain under an obligation to bill only for services performed and to comply with legal authorities related to proper billing, claims submission, cost reporting, etc.
The OIG Policy Statement is here, and the FAQ regarding the Policy Statement is here.
