COVID-19: A Resource Guide

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HHS-OIG adjusts enforcement priorities during COVID-19 pandemic

Apr 21, 2020

Every healthcare provider in the country is under significant operational and financial strain. Those on the front lines of emergency care are working frantically to either increase surge capacity or deal with the surge that has already come. Others are suffering financially from the stoppage of non-emergency procedures and patient visits. 

In the midst of this unprecedented public health crisis, there is a modicum of good news from a source that is not known for spreading joy.  The Department of Health and Human Services Office of Inspector General (HHS-OIG) revised its five-year Strategic Plan and issued a letter outlining several key changes to its enforcement priorities. The letter, posted on the its website, states HHS-OIG’s desire to minimize excessive burdens on healthcare providers while they are faced with extraordinary challenges during the pandemic.  In order to do so, providers must be given “flexibility to provide needed care during this emergency,” making the delivery of patient care the providers’ primary focus.

HHS-OIG notes that it is working closely with Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS), and its other law enforcement partners to support healthcare providers and to assist with providing care to patients.  At the same time, HHS-OIG will continue “aggressively investigating bad actors,” in particular those suspected of exploiting the COVID-19 crisis. Such activities could include exploiting the public’s fear of the pandemic, engaging in fraudulent schemes to steal patient information or advertising or selling fake COVID-19 testing kits or unapproved therapies.

The most important aspect of OIG’s letter is its announcement that it “will carefully consider the context and intent of the parties when assessing whether to proceed with any enforcement action.”  While this statement does not obligate HHS-OIG to provide additional leeway and is specifically limited to its administrative enforcement authority, it does suggest that the OIG will take a softer line on potential violations or the Civil Monetary Penalties statute or other regulatory shortcomings that are the result of, in response to, or reasonably connected to the COVID-19 crisis. 

In addition to reframing its administrative authority as it relates to providers responding to the novel coronavirus pandemic, the OIG also states that its Office of Audit Services will take into account the ongoing burdens on providers, patients and OIG staff in conducting routine audits, and invites providers currently operating under a Corporate integrity Agreement to seek extensions of any deadlines as necessary. 

This letter is not a watershed moment in HHS-OIG enforcement, but it should give healthcare providers some comfort to know that they can focus on providing the best care to their patients and communities without worrying about rigorous enforcement of overly exacting regulations.  While healthcare providers must remain cognizant of HHS-OIG significant enforcement capabilities, this letter sends the right message that the OIG is, as it should be, focused on allowing providers to do what they need to in order to deliver care where, when, and how it is needed in this time of crisis. 

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