OIG issues guidance on cost-sharing waivers for providers of telehealth services during COVID-19 outbreak

On March 24, 2020, the Office of the Inspector General (OIG) released timely guidance to its previous Policy Statement dated March 17, 2020, regarding providers’ ability to reduce or waive cost-sharing expenses for federal health care program beneficiaries, as an exception for telehealth services provided during the coronavirus (COVID-19) outbreak. As explained in a prior alert regarding the OIG’s Policy Statement, under normal circumstances, a provider’s waiver of beneficiary cost-sharing obligations such as co-pays would implicate the federal anti-kickback statute, civil monetary penalty and exclusion laws.

The OIG’s new guidance addresses a number of questions from healthcare providers seeking to clarify the scope of the cost-sharing waiver Policy Statement. The OIG noted that it is “committed to protecting patients by ensuring that healthcare providers have the regulatory flexibility necessary to adequately respond to COVID-19 concerns,” and provided the following information:

1. The Policy Statement is not limited to the services under 42 C.F.R. § 410.78, referred to by CMS as “telehealth visits.”
2. The OIG intends for the Policy Statement to apply to a broad category of non-face-to-face services furnished through various modalities:
   • Telehealth visits
   • Virtual check-in services
   • E-visits
   • Monthly remote care management
   • Monthly remote patient monitoring
3. The Policy Statement applies to:
   • A physician or practitioner (e.g., NPs and PAs) billing for services provided remotely through information or communication technology.
   • A hospital or other eligible individual or entity billing on behalf of the physician or practitioner for such services when the physician or practitioner has reassigned his or her rights to receive payments to such individual or entity (e.g., through an employment or contractual relationship).

The OIG stated it will update this guidance upon receiving additional questions related to the Policy Statement. Providers are encouraged to submit questions.

For additional questions regarding telehealth or health care laws, please contact the attorneys below.