MDNews - Central New York

++++++++++++++++++++++++++ + +++ +lEGAl PERSPECTiVE +++ ++++++++++++++++++++++++++ LEGAL ExPOSuRE for Waiving Copays and Deductibles By Jason J. Centolella, Attorney at Bousquet Holstein PLLC O UR OFFICE ROUTINELY answers questions from physician offices and hospitals regarding waiver of patient copays and deductibles (collectively "coinsurance"). The temptation to waive coinsurance arises in many different scenarios, including the following: when patients are financially distressed, when one wishes to extend professional courtesy to colleagues and their families, and when collection efforts have negligible results. Each scenario raises risky regulatory and legal issues that healthcare providers must consider before waiving coinsurance. The following discussion addresses some of these issues. For situations involving a government healthcare program, including Medicare, Medicaid and TRICARE, waiver of coinsurance raises potential Federal AntiKickback Statute, Federal False Claims Act and state law liability. Because of these concerns, the U.S. Department of Health 16 | Central New York MD News ■ MDNEwS.COM and Human Services (HHS) has taken the position that it is unlawful to routinely waive coinsurance, including coinsurance for services deemed professional courtesy and "take what insurance pays," or TWIP. That being said, HHS has also indicated there are potential exceptions to liability that apply in limited circumstances. For example, non-routine waiver of coinsurance to patients facing financial hardship or after good-faith collection efforts have failed may not violate any statute or regulation. In addition, waiver of coinsurance presents potential legal issues in situations in which the patient's insurance is from a private insurer. This is the case both when the physician office or hospital is a participating provider and when it is out-ofnetwork. For participating physicians and hospitals, whether a coinsurance waiver is appropriate depends on the insurance contract, in addition to applicable laws and regulations. For both participating and nonparticipating physician offices and hospitals, the New York Department of Financial Services has indicated that routine waiver of coinsurance could amount to insurance fraud. Like government health insurance programs, there are potential exceptions for patients facing financial hardship or for situations in which reasonable collection efforts have failed, but each exception has particular elements that must be satisfied to avoid liability. This article is not intended to be a complete explanation of the risks and potential solutions in waiving patient coinsurance. Instead, physician offices and hospitals should be aware that waiving coinsurance, even in situations deemed professional courtesy, may cause unintended legal exposure. As noted above, there are exceptions in which waiver of coinsurance would not be unlawful, but these exceptions are limited to a narrow group of situations and each has particular requirements. Physician offices and hospitals should review the precise circumstances with legal counsel before concluding that an exception applies. Jason J. Centolella is a Member of Bousquet Holstein PLLC, www.BHlawpllc.com, and head of its Health Care Practice Group. For more information, Jason can be reached at 315-701-6462. ■

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