The answer is sometimes. However, providers must be very careful to consider the implications of waiving beneficiary co-pays. Primarily, waiving co-pays may trigger The Anti-Kickback Statute.
The Anti-Kickback Statute provides in relevant part:
Summary of Benefits - The Summary of Benefits document will help you choose a health plan. It shows you how you and the plan would share the cost for covered health care services. NOTE: Information about the cost of this plan (called the premium) will be provided separately. Schedule of Benefits - The Schedule of Benefits is a document for current members that provides a summary of your. You may notice a change in the amount due on your MassHealth Monthly Premium Bill. You are only responsible for the Total Amount Due that appears in the 'What do you owe?' Section of the bill. As a reminder, due to our new billing system, your account number may have changed. Please use the account number from your bill when you make a payment.
Whoever knowingly and willfully offers or pays any remuneration (including any kickback, bribe, or rebate) directly or indirectly…, in cash or in kind, to any person to induce such person to refer an individual [for] any item or service for which payment may be made … under a Federal health care program, … shall be guilty of a felony.42 U.S.C. § 1320a-7b(b).
Basically, the statute prohibits giving anything of value in order to induce referrals for business covered by Medicaid and other federally funded health care programs, and may apply to any transaction between providers and program beneficiaries.
However, the statue does not apply if a health care provider acts without any intent to induce improper referrals. In addition, the provider must know about the law, and act “with the specific intent to violate the law.” Hanlester Network v. Shalala, 51 F.3d 1390 (9th Cir. 1995).
Thus, actions taken in good faith for the benefit of patients or program beneficiaries without any improper intent to generate referrals or violate the law do not implicate Anti-Kickback.
The Department may examine any transaction that could generate improper referrals, especially those in which a provider offers free or discounted items or services to program beneficiaries, or those that would otherwise promote over-utilization or create a risk of fraudulent claims. See OIG Special Advisory Bulletin, Offering Gifts and Other Inducements to Beneficiaries (8/02).
Copays and deductibles help discourage unnecessary services and lower the cost of government programs. A provider’s routine waiver of copays and deductibles may create an incentive to over-utilize program resources and violate the Anti-Kickback Statute. See OIG Special Fraud Alert (12/94).
The OIG has set out some safe harbor guidelines. Waiving Medicaid and Medicare copays or deductibles does not violate the Anti-Kickback Statute if:
Copays For Masshealth Members
- the waiver is not offered as part of any advertisement or solicitation;
- the provider does not routinely waive coinsurance or deductibles; and
- the provider waives the coinsurance and deductibles after determining in good faith that the individual is in financial need or reasonable collection efforts have failed.
The beneficiary’s “financial need” will depend on the individual’s circumstances. Providers should have a written policy and guidelines in place showing consideration of factors such as the local cost of living, the patient’s income, assets and expenses, and the scope and extent of the patient’s medical bills. The documentation of financial need should be placed in that patient’s file to prove that the analysis was undertaken and the policy was followed. In addition, collection should always be attempted.
By taking these factors into consideration, a Provider may greatly reduce the risk of being flagged for fraudulent waiver of copays.
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For more information, contact DJ Jeyaram at [email protected] or 678.325.3872.