COVID-19 has led to a lot of uncertainty in healthcare, especially among healthcare providers.
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As regulations and rules adapt and change in response to the pandemic, the Office of Inspector General (OIG) has issued guidance in the form of FAQs. OIG is accepting questions from the healthcare community regarding their enforcement activities.
But beware – OIG has stated these FAQs are informal and do not bind or obligate HHS, the US Department of Justice or other enforcement agencies. OIG’s feedback is limited to the time period in the COVID-19 Declaration.
If you have questions about how these FAQs may be applied to your practice, ask your healthcare attorney.
We have summarized some of the FAQs we found helpful below:
QUESTION: Can a physician group that contracts with a nursing home to provide care to its residents furnish protective face masks at no or a reduced cost, if it experiences supply shortages due to COVID-19?
ANSWER: OIG stated that while this could raise concerns under the anti-kickback statute, given the unique circumstances of COVID-19, this would pose a low risk of fraud and abuse if:
- the decision to furnish masks is directly connected to addressing the impact of COVID-19;
- the masks are furnished only during the time period subject to the COVID-19 Declaration;
- the group is not marketing the provision of free or discounted masks; and
- the provision of masks is not made contingent on referrals of items, services, or volume or value of referrals.
QUESTION: Can mental health and substance use disorder providers accept donations from public entities, private charitable foundations or health plans to fund cell phones, service or data plans, or both for patients who are financially needy or who do not own phones for medically necessary services during COVID-19?
ANSWER: Again, OIG states that provision of cell phones would normally violate the anti-kickback statute and Beneficiary Inducements CMP. However, in the limited context of COVID-19, OIG stated that this would likely present a low risk of fraud and abuse, so long as:
- the provider determines in good faith that the patient is in financial need of the technologies;
- the provider determines in good faith that the technologies are necessary to access medically necessary services related to the patient’s mental health or substance use disorder treatment;
- all services furnished with the technology are medically necessary;
- the provider uses the third party’s funding solely for the telecommunications technology;
- the provider doesn’t market the telecommunications technology;
- the telecommunication is only offered to established patients; and
- the provision is limited to the time period of the COVID-19 Declaration and after its expiration, the cell phone is returned and/or payment for the plan/service is ceased.
QUESTION: Can a hospital provide access to its existing HIPAA-compliant, web-based, telehealth platform for free to independent physicians on staff to furnish medially necessary telehealth services during the COVID-19 Declaration?
ANSWER: Again, OIG states that while this would normally be a violation of the Federal anti-kickback statute, during the pandemic there is a low risk of fraud and abuse so long as the platform:
- is provided for free to physicians for medically necessary telehealth services;
- is provided only when necessary during the COVID-19 Declaration and as a result of the pandemic;
- is not conditioned on the physician’s volume or value of referrals, other business generated, or any items or services that may be reimbursable; and
- offered to all physicians on staff on an equal basis.
For the full list of FAQs, please visit the OIG HHS website by CLICKING HERE.
Also, if you have different facts than set out in the FAQs, make sure to consult with a healthcare attorney before acting upon the guidance. The OIG may have a different opinion in light of different or additional factors.
In our next blog post, we will keep you informed of related issues. To get this important information delivered directly to your mail box, click here to Subscribe.
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