On March 30, 2020, Christi A. Grimm, Principal Deputy Inspector General of the Department of Health and Human Services (HHS) Office of Inspector General (OIG), issued a letter to the OIG’s website outlining the OIG’s perspective on enforcement during the 2019-novel coronavirus (COVID-19) crisis. Consistent with our recent experiences, OIG stated its desire to minimize burdens on providers during the COVID-19 pandemic.
OIG explains that its focus is on coordinating with HHS, CMS, and law enforcement to support the health care system’s response to the pandemic. While some increased enforcement arises in response to bad actors abusing any crisis—as we previously wrote about with respect to defrauding with fake testing kits and to stealing patient information–OIG is demonstrating increased flexibility in recognition of the current burdens on providers.
To this end, OIG encourages healthcare organizations that need extensions of any OIG deadlines, such as data productions for OIG review or reports submitted pursuant to Corporate Integrity Agreements, to discuss potential extensions with their OIG contact. OIG explains that it intends to work with organizations to reach reasonable solutions. Our recent interactions with OIG are consistent with this statement.
Further, OIG explains that, during the crisis, it will carefully consider context and intent surrounding any actions that would generally be subject to administrative enforcement in determining whether to proceed with enforcement actions. Such statements may give providers comfort to pursue relationships that will allow for urgent and necessary care and treatment to be provided for their communities during the COVID-19 pandemic, even where the relationship does not fall squarely within an Anti-Kickback Statute safe harbor but where there is no intention to induce or influence referrals. Such statements are also consistent with CMS’ blanket waivers under the Stark Law relating to specific relationships addressing COVID-19 purposes, as will be discussed in a forthcoming McGuireWoods’ alert . To be clear, through Grimm’s letter, OIG is not by any means amending or removing the existing fraud and abuse regulations and corresponding enforcement framework. Thus, entities must still carefully evaluate their relationships and conduct from a compliance perspective albeit in light of the challenges posed by the COVID-19 pandemic.
Finally, OIG requests that submissions to the OIG be done electronically where possible rather than by mail. The OIG has created a COVID-19 Portal for such submissions. This portal is up to date with information about OIG operations, contact information, and COVID-related work, as well as enforcement questions. Like much of the country, OIG employees are working remotely.
The situation is rapidly evolving and we will continue to monitor any additional federal enforcement actions and information related to COVID-19. The National Center for Disaster Fraud has provided a hotline (866-720-5721) and email (firstname.lastname@example.org) to report suspected fraud.
McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial coronavirus-related business and legal issues, and the firm’s COVID-19 Response Team stands ready to help clients navigate urgent and evolving legal and business issues arising from the novel coronavirus pandemic.