OIG Announces Strategic Plan for Oversight of COVID-19 Response and Recovery Efforts

Seyfarth Shaw LLP

The US Department of Health and Human Services (“HHS”) Office of Inspector General (“OIG”) recently announced its “Strategic Plan: Oversight of COVID-19 Response and Recovery,” a document that sets forth OIG top goals and objectives during the current pandemic.

Coupled with this announcement was the appearance of Christi A. Grimm, Principal Deputy Inspector General for OIG, before the House of Representatives’ Committee on Oversight and Reform this past Tuesday.

OIG’s mission is to fight waste, fraud, and abuse in Medicare, Medicaid, and more than 100 other HHS programs. This mission is carried out through a nationwide network of audits, investigations, and inspections, and in overseeing the Department’s emergency preparedness and response activities.

OIG announced four goals as part of its Strategic Plan: (1) protect people, (2) protect funds, (3) protect infrastructure, and (4) promote effectiveness—now and into the future.

Regarding its first goal (“Protect People”), the Plan set forth OIG’s intent to issue guidance on the application of OIG’s administrative fraud enforcement authorities to support providers in delivering needed patient care during the public health emergency. The Plan also identified OIG’s objective to fight fraud and scams that endanger HHS beneficiaries and the public by investigating suspected fraud and alerting HHS and its beneficiaries to fraud schemes.

“We know from experience that fraud schemes proliferate during emergencies, as greedy perpetrators exploit fear and confusion to steal. It is despicable and it is happening during this pandemic. Scammers are targeting scared Medicare beneficiaries with schemes designed to steal their Medicare numbers. Scammers offer fake treatments and nonexistent vaccines to vulnerable seniors and others. Most recently, scammers are offering bogus contact tracing, enticing people to click on a malicious link to find out whether they have been exposed to COVID-19. OIG is responding aggressively with our law enforcement partners and bringing these wrongdoers to justice,” Grimm said in a prepared statement to the House Committee.

Regarding its second goal (“Protect Funds”), the Plan sets forth additional objectives of preventing, detecting, and remedying waste or misspending of COVID-19 response and recovery funds. As of mid-May 2020, HHS has appropriated $251 billion for COVID-19 response and recovery, which includes $175 billion for the Provider Relief Fund and $76 billion for the HHS Office of the Secretary and certain Operating Divisions to prevent, prepare for, and respond to coronavirus.

Regarding its third goal (“Protect Infrastructure”), the Plan identified action items to include auditing HHS capabilities for detecting IT vulnerabilities and incidents, and investigating cybersecurity threats to HHS systems.

“We seek [through this goal] to protect the health information technology and data infrastructure that is critical to ensuring an effective response, including research,” Grimm added.

Regarding its fourth goal (“Promote Effectiveness”), the Plan identified OIG’s intent to conduct audits and evaluations of ongoing response and recovery efforts that identify opportunities to increase effectiveness and to help ensure that recipients of HHS COVID-19 response and recovery funding achieve program goals. In conjunction with this goal, HHS has waived coverage and payment rules to expedite access to testing and treatment, Grimm said. OIG is also planning to look at the impact of expanded telehealth in Medicare. Grimm has further emphasized the need for OIG oversight this past Tuesday to House lawmakers and warned against threats to the independence of inspectors general in their statutorily mandated work.

For health care providers receiving payments from the Provider Relief Fund, the second goal (Protect Funds) merits attention. Payments from the Provider Relief Fund are subject to certain Terms and Conditions which HHS has expressly stated are material and which are deemed accepted if the provider does not return the payments within 45 days of receipt via ACH or 60 days of receipt via check. Although the initial $50 Billion General Distribution funds were made automatically based on HHS data, the provider must attest to receipt of the funds, which includes acceptance of the Terms and Conditions, and submit reports as generally designated by HHS to ensure compliance with the Terms and Conditions. Providers receiving over $150,000 total in funds from any Act primarily making appropriations for the coronavirus response and related activities must also submit quarterly reports to the Pandemic Response Accountability Committee. A misleading attestation or information in a required report, or failure to follow these Terms and Conditions, could lead to recoupment and perhaps civil liability under the False Claims Act.

While recipients may protest that they did not make a false statement or even a claim because the General Distribution was made automatically and, in fact, many providers were surprised by the funds, the inquiry under the False Claims Act does not stop there. A recipient can be liable for a “reverse false claim” for making or using false records or statements material to an obligation to pay or transmit money to the Government, or for concealing or improperly avoiding or decreasing an obligation to pay or transmit money to the Government. 31 U.S.C. § 3729(a)(1)(G). In this context an “obligation” includes the retention of an overpayment. 31 U.S.C. § 3729(b)(3). In addition, providers have until June 3 to submit applications for additional funds which would be claims under the statute. Finally, the standard for liability under the False Claims Act is knowing behavior; no intent to defraud is necessary.

For these reasons, understanding the Terms and Conditions is critical. Among Terms and Conditions that have already raised questions relate to eligibility - the recipient must “provide[] or [have] provided after January 31, 2020 diagnoses, testing, or care for individuals with possible or actual cases of COVID-19”; use of the funds - “only . . . to prevent, prepare for, and respond to coronavirus, and [only to] reimburse . . . for health care related expenses or lost revenues that are attributable to coronavirus”; and balance billing prohibitions for “presumptive or actual” cases of COVID-19 which is different than the eligibility criteria of “possible or actual” cases. Furthermore, as noted above there are numerous reporting obligations tied to retention of the funds.

The Government has noted from the outset of the various COVID-19 relief programs, there is an emphasis on transparency and on the valid need for and use of the funds. The Terms and Conditions expressly state that “deliberate omission, misrepresentation, or falsification of any information contained in this Payment application or future reports may be punishable by criminal, civil, or administrative penalties, including but not limited to revocation of Medicare billing privileges, exclusion from federal health care programs, and/or the imposition of fines, civil damages, and/or imprisonment.” The OIG’s work plan reinforces this emphasis. Recipients should therefore carefully scrutinize the amounts received and requested, as well as keep meticulous records of the funds so that the goals of the COVID-19 Response and Recovery Program can be achieved.

As of the date of this publication, more than 100,000 people have died in the United States from COVID-19. HHS is the lead federal agency responsible for the public health and medical services response.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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