A physician colleague asked my opinion regarding the routine waiving of co-pays and deductibles. He informed me that a competitor of his was routinely waiving co-pays as a marketing instrument.
Routinely deferring copays and deductibles is a whistleblower’s dream. Remember your competitors are potential whistleblowers and are looking over your shoulder.
I informed him that doing so may violate fraud and abuse laws, as well as his agreements with his payers. By waiving these charges, his colleague is likely misrepresenting the actual charges, a concern expressed by the OIG. Additionally, the intent of collecting these charges is to reduce utilization and costs to the payers. Federal and state laws as well as private payer contracts generally prohibit waiving cost sharing unless the patient is experiencing a genuine financial hardship.
Regarding federal programs, the routine waiving of co-pays and deductibles may implicate several fraud and abuse laws, particularly the federal Anti-Kickback Statute (AKS). In addition to the monetary penalties, violations of this law may result in a prison term and exclusion from federal and state programs. Additionally, violation of the AKS may implicate the False Claims Act (FCA), which may result in additional penalties of $5,500 to $11,000 per claim submitted, and repayment of amounts improperly received. (42 USC 1320a-7a (a) (7); 42 CFR 1003.102).
Providers must also be mindful regarding commercial (Private Payer) contracts and the collection of co-pays and deductibles. Failure to meet the cost sharing requirements in the contract could result in a breach of contract. Physician offices should have written policies for both staff and patients to read and understand, specifically explaining when and how co-pays and deductibles will be collected or, in rare instances, waived.
Routinely deferring copays and deductibles is a whistleblower’s dream. Remember your competitors are potential whistleblowers and are looking over your shoulder.
Posted in
