The HHS Office of Inspector General (OIG) has been cutting providers some slack during the COVID-19 public health emergency, a top official said. That has extended, for example, to suspending penalties for telehealth copay waivers[1] and setting aside specific corporate integrity agreement (CIA) requirements in 30 instances.
“We are grateful for the hard work of providers and recognize they may need flexibility,” Lisa Re, assistant inspector general for legal affairs, said March 24 at the Institute on Medicare and Medicaid Payment Issues sponsored by the American Health Law Association.
For example, OIG has been posting answers to frequently asked questions from the industry on the application of OIG’s administrative enforcement authorities to arrangements directly connected to the COVID-19 public health emergency, with the most recent FAQ posted March 24.[2]
Re said OIG has also been flexible with certain aspects of self-disclosures, civil money penalty (CMP) settlements and CIAs. Forty times, OIG “extended the time for providers under CIAs to submit information to us,” said Susan Gillin, chief of the Administrative and Civil Remedies Branch. Also, “in 30 instances, upon request, we agreed to waive discrete CIA requirements. These may have included things like training requirements, field force monitoring, and certain aspects of [independent review organization] reviews, due to COVID making it unsafe to perform unnecessary in-person activities and causing staffing shortages.”
Gillin added that OIG offered organizations that were accepted into the Self-Disclosure Protocol the choice of “pausing the movement toward settlement until they were in a better position to settle. Of the 42 cases that we paused, 15 have resumed moving toward settlement (or have settled).” And OIG gave payment extensions in 15 CMP settlements, she said.
OIG Settled PRF Case
Although OIG recognizes the need for “compliance flexibilities,” enforcement activity continues, Re said. In fiscal year 2020, OIG participated in 267 False Claims Act settlements, she said. Also, there have been several “significant settlements” stemming from affirmative enforcement actions pursued by OIG under its CMP and exclusion authorities.
For example, in a CMP settlement over the Provider Relief Fund (PRF), Milan S. Chakrabarty, M.D., individually and doing business as Hemet Endoscopy Center, agreed to pay $66,715 to resolve allegations it accepted money it wasn’t entitled to. An employee of Chakrabarty’s attested in the PRF portal that Hemet Endoscopy Center was eligible for the money because, “among other things, it treated patients after January 31, 2020, and its Medicare billing privileges had not been revoked. However, the Hemet Endoscopy Center did not treat patients after January 31, 2020, and HHS had revoked its Medicare billing privileges on November 22, 2019,” OIG contended in the settlement,[3] which was obtained through the Freedom of Information Act. Hemet Endoscopy Center subsequently kept its April 17, 2020, PRF payment and a May 26, 2020, PRF payment “despite being ineligible to retain those payments,” OIG alleged.
In July, OIG announced its first grant fraud compliance agreement, Re said. Brooklyn Plaza Medical Center (BPMC) in New York, a federally qualified health center, entered into a $100,000 settlement agreement and five-year recipient compliance agreement. “The settlement agreement resolves allegations that BPMC made false specified claims in the form of drawdowns from the HHS Payment Management System for Health Resources and Services Administration grant funds that were not supported by adequate documentation, timesheets, and a financial management and control system that ensured that HHS grant funds were used solely for authorized purposes in accordance with federal statutes, regulations, and the terms and conditions of BPMC’s federal awards,” according to the OIG website.[4]
Meanwhile, in June, the HHS Departmental Appeals Board upheld the largest stipulated penalty imposed by OIG in years.[5] OIG fined Friendship Home Healthcare Inc., and related entities in Nashville, Tennessee, $1.32 million for failing to return overpayments identified under its CIA by an independent review organization. Friendship had appealed the 2018 stipulated penalty to an administrative law judge (ALJ), who upheld it in October 2019. The home health company appealed the ALJ ruling to the DAB and lost. OIG said the DAB agreed with the ALJ decision, which stated that OIG “had the contractual right to demand stipulated penalties because Petitioners breached the CIA when they failed to repay overpayments identified by the IRO.”