On March 17, 2020, the Department of Health and Human Services (HHS), Office of Inspector General (OIG) issued a Policy Statement notifying healthcare providers that it will not be taking enforcement action against providers and practitioners who choose to waive or reduce cost-sharing for telehealth services provided to beneficiaries of federal health care programs during the COVID-19 public health emergency. Additional Guidance issued by the OIG on March 24, 2020 clarified that the Policy Statement is not limited to the services governed by 42 C.F.R. § 410.78 and referred to by CMS as “telehealth visits.” Rather, the telehealth services referred to in the Policy Statement encompasses a broad category of non-face-to-face services furnished through various modalities, including telehealth visits, virtual check-ins, e-visits, monthly remote care management, and monthly remote patient monitoring.

Under ordinary circumstances providers that routinely reduce or waive cost-sharing for Medicare patients or beneficiaries of other federal health care programs run the risk of implicating federal health care statutes aimed at reducing health care fraud and abuse, such as the Federal Anti-kickback Statute and the Civil Monetary Penalties Law.

Absent demonstrable financial hardship on behalf of the patient, providers are typically required to charge co-payments and other cost-sharing for beneficiaries of federal healthcare programs, and providers that waive or reduce such payments could be seen as inducing referrals, or wrongfully influencing beneficiaries to use their services. However, the OIG recognizes that providers need greater regulatory flexibility to adequately respond to COVID-19 concerns and, by permitting telehealth providers to waive cost-sharing for beneficiaries of federal health care programs irrespective of whether patients meet financial hardship criteria, such flexibility can help enable patients and providers alike to adhere to self-isolation recommendations and potentially reduce unnecessary exposure to COVID-19.

While the waiver of beneficiary cost-sharing is permitted during this time, the OIG has also made it clear that providers of telehealth services are not required to provide telehealth services to federal healthcare program beneficiaries for free (or with no patient financial responsibility). Providers that do not wish to waive or reduce co-pays are not required to do so.

It is important to note that the Policy Statement covers only those providers of telehealth services who reduce or waive the cost-sharing obligations that a federal healthcare beneficiary may owe for telehealth services furnished consistent with the then-applicable coverage and payment rules, provided that the telehealth services are furnished during the time period subject to the COVID-19 national emergency declaration. Additionally, the OIG may reconsider, modify or terminate this administrative flexibility at any time. Therefore, providers should remain cognizant of ongoing changes and any additional or updated guidance issued during this time of national crisis.