As previously discussed, on April 3, 2020, the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) issued a process for inquiries to be submitted to OIG about whether administrative enforcement discretion would be provided for certain arrangements directly connected to the 2019 novel coronavirus (COVID-19). OIG established this process to provide regulatory flexibility to ensure necessary care responding to COVID-19, particularly with respect to the federal anti-kickback statute (AKS) and civil monetary penalty (CMP) beneficiary inducement prohibition provisions. OIG responses are publicly available through a frequently asked questions (FAQ) posting on the OIG COVID-19 portal. OIG has continued to update this FAQ since its initial publication, including the most recent inquiry discussed in our April 13 post and also providing guidance on the following question:

What are the implications, under OIG’s administrative sanction authorities, of an ambulance provider or supplier waiving or discounting beneficiary cost-sharing obligations (required by the Medicare program) resulting from ground ambulance services paid for by the Medicare program under a waiver established pursuant to section 1135(b)(9) of the Social Security Act?

OIG responded to the unique context where Medicare will make retroactive ground ambulance payments for certain patients not transported to a local hospital due to COVID-19 by responding in the affirmative that such ambulance providers and suppliers would not need to collect beneficiary cost-sharing payments to receive such Medicare reimbursement. Such retroactive billing was authorized in the American Rescue Plan for the services described below, and the Secretary of HHS utilized this authority to waive certain statutory reimbursement requirements the same day as OIG issued this FAQ.