OIG Updates COVID-19 Administrative Enforcement FAQs With Question Regarding Ambulance Providers’ Waiver or Discount of Certain Cost-Sharing Obligations for Medicare Beneficiaries

King & Spalding

On May 5, 2021, OIG issued guidance on its COVID-19 Administrative Enforcement FAQs page stating that an ambulance provider or supplier waiving or discounting Medicare beneficiary cost-sharing obligations presents a low risk of fraud and abuse where the ambulance provider or supplier waives or discounts costs of services paid for by Medicare under a waiver established pursuant to section 1135(b)(9) of the Social Security Act.

OIG released the FAQ to provide guidance on HHS’s recent waiver of certain statutory requirements for emergency ground ambulance services, which HHS adopted following widespread local changes to ambulance provider and supplier practices during the COVID-19 public health emergency. Specifically, over the past 14 months, various state, local, or municipal authorities have established new emergency medical service (EMS) protocols that require or allow ambulance providers and suppliers to treat certain patients, including Medicare beneficiaries, “in place” instead of transporting them.

In response to these new EMS protocols, pursuant to section 1135(b)(9) HHS determined ambulance providers and suppliers do not need to transport a patient to be eligible for Medicare reimbursement. Under HHS’s new policy, ambulance providers and suppliers are still eligible for Medicare reimbursement if the ambulance providers and suppliers would have transported the patient to a Medicare-approved destination but did not transport the patient as a result of the new EMS protocols. The new policy is effective retroactively for services rendered on or after March 1, 2020.

The FAQ addresses potential Federal anti-kickback concerns where the ambulance providers and suppliers decide to waive or discount the Medicare beneficiary’s cost-sharing obligations for services provided and billed to Medicare under HHS’s new policy. OIG noted cost-sharing obligations arising under HHS’s new policy “could result in the perception of ‘surprise billing,’” especially for services billed retroactively. Prior to the new HHS policy, ambulance providers and suppliers had no expectation that the Medicare program would reimburse them for services that did not involve transport, and beneficiaries receiving services had no expectation that they would incur cost-sharing obligations. Therefore, OIG concluded it would represent a low risk of fraud and abuse for ground ambulance providers and suppliers to waive or discount beneficiary cost sharing obligations for claims billed in the circumstances addressed in the FAQ.

The May 5th FAQ along with all previous FAQs are available on OIG’s website here.

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