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OIG Clarifies Scope of Telehealth Copayment Waiver

On March 24, 2020, the US Department of Health and Humans Services Office of Inspector General (OIG) issued guidance regarding OIG’s March 17, 2020, policy statement on reductions or waivers of cost-sharing obligations owed by federal healthcare program beneficiaries for telehealth services. While the original policy statement set conditions which, if met by physicians or practitioners, would allow them to avoid administrative sanctions for granting such reductions or waivers, the March 24 guidance clarifies OIG’s position on the scope of telehealth services covered.

IN DEPTH


On March 24, 2020, the US Department of Health and Human Services Office of Inspector General (OIG) issued guidance (Guidance) regarding the policy statement permitting routine waiver of copays for telehealth services (Policy Statement) issued on March 17, 2020. The Guidance clarifies the scope of “telehealth services” that may be the subject of the copayment waivers and clarifies the type of providers to which the Policy Statement applies.

Through the Policy Statement, OIG notified physicians and other practitioners that they will not be subject to administrative sanctions for reducing or waiving any cost-sharing obligations that federal healthcare program beneficiaries may owe for telehealth services for arrangements that satisfy both of the following conditions:

  1. A physician or other practitioner reduces or waives cost-sharing obligations (i.e., coinsurance and deductibles) that a beneficiary may owe for telehealth services furnished consistent with the then-applicable coverage and payment rules.

  2. The telehealth services are furnished during the time period subject to the COVID-19 national emergency declaration.

OIG will not view the provision of free telehealth services alone as an inducement or as likely to influence future referrals (i.e., OIG will not view the furnishing of subsequent services occurring as a result of the free telehealth services, without more, as evidence of an inducement) for any free telehealth services furnished during the pendency of the emergency declaration. The Policy Statement, however, did not define the scope of the “telehealth services” subject to the waiver.

The Guidance clarifies OIG’s position on the scope of “telehealth services,” stating that such services are not limited to the narrow set of services referred to by the Centers for Medicare and Medicaid Services (CMS) as “telehealth visits” under the Medicare Part B program. Rather, OIG reported that it intends for the Policy Statement to apply more broadly to “non-face-to-face services furnished through various modalities, including telehealth visits, virtual check-in services, e-visits, monthly remote care management, and monthly remote patient monitoring.”

In addition, OIG clarified that the availability of the waivers is not limited to physicians and other practitioners who bill for their services; the availability of waivers also extends to hospitals or other eligible individuals or entities that bill on behalf of the physician or practitioner pursuant to a reassignment of his or her right to receive payments to such individual or entity.

This clarification should be welcome to physicians, hospitals and health systems that are seeking alternatives to in-person patient visits and ways to alleviate the financial burden of such services for certain patient populations during the COVID-19 national emergency. However, as noted in our discussion regarding COVID-19 beneficiary inducement questions, certain other considerations might be at play when evaluating copay waivers that would apply to the still fairly narrow contours of OIG’s telehealth

© 2020 McDermott Will & Emery

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About this Author

Associate

Amanda Enyeart is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  Amanda focuses her practice on general regulatory health law matters. 

Previously, Amanda was an associate at a national law firm in its Chicago office where she provided guidance on regulatory issues, such as practitioner licensure; telehealth; Medicare and Medicaid reimbursement; and compliance with Stark Law and the Anti-Kickback Statute and state fraud and abuse laws.

Additionally, Amanda has...

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 Dale C. Van Denmark MWE Partner DC, Regulatory, Government & Lobbying Strategies  Health Care  Life Sciences
Partner

Dale C. Van Demark advises clients in the health industry on strategic transactions and the evolution of health care delivery models. He has extensive experience in health system affiliations and joint venture transactions. Dale also provides counseling on the development of technology in health care delivery, with a particular emphasis on telemedicine. Dale has been at the forefront of advising clients with respect to the globalization of the US health care industry. He advises US and non-US enterprises with respect to the formation of cross-border affiliations and international patient programs. In addition to writing regularly on matters related to his practice, Dale has spoken at numerous conferences around the world on the globalization of health care.

He is also a member of our legal cannabis industry group. Our Cannabis Industry group is a multidisciplinary team of lawyers providing clients with regulatory, litigation, intellectual property, trade and tax services with respect to their investments and participation in the cannabis industry, all subject to the Firm’s obligations under federal and state laws and bar licensure rules.

Results

  • Frequently serves as lead transaction counsel for leading academic medical centers in affiliations with and acquisitions of community health systems

  • Frequently serves as lead transaction and general counsel for community health systems seeking affiliation and acquisition partners

  • Recently served as lead transaction counsel for a health system in the acquisition of a licensed managed care company

  • Recently advised a leading telemedicine company in the design and implementation of its core business strategy

  • Recently advised a leading academic medical center on the establishment of an affiliation with a Gulf State health care provider for the development of specific service lines in-country

  • Recently advised a leading academic medical center on the establishment of an affiliation with an Asian industrial enterprise for the purpose of developing Asian hospitals

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