Jan 212022

OIG Will Audit Hospitals for Compliance with Provider Relief Fund Balance Billing Rule

Jaime L.M. Jones and Brenna E. Jenny

Yesterday HHS-OIG updated its Work Plan to add yet one more audit of potential misconduct relating to the COVID-19 pandemic.  This project, titled Hospital’s Compliance With the Provider Relief Fund Balance Billing Requirement for Out-of-Network Patients, focuses on compliance with a clause in the Provider Relief Fund Terms and Conditions that restricts balance billing for COVID-19 patients.  That clause states: [F]or all care for a presumptive or actual case of COVID-19, Recipient certifies that it will not seek to collect from the patient out-of-pocket expenses in an amount greater than what the patient would have otherwise been required to pay if the care had been provided by an in-network Recipient.”

Recipients of Provider Relief Fund payments must accept Terms and Conditions associated with each payment and “acknowledge[] that the Recipient’s full compliance with all Terms and Conditions is material to HHS’s decision to disburse funds to the Recipient.”  The reference to materiality appears designed to lay the groundwork for potential FCA liability for noncompliance with these Terms and Conditions.

OIG plans to gauge hospital compliance with the balance billing prohibition and will: “assess how bills were calculated for out-of-network patients admitted for COVID-19 treatment, review supporting documentation for compliance, and assess procedural controls and monitoring to ensure compliance with the balance billing requirement.”  OIG’s interest in the Provider Relief Fund’s balance billing restriction dovetails with HHS’ broader commitment to enforcing the new balance billing prohibition that became effective on January 1, 2022 through the No Surprises Act.

Hospitals should consider confirming that they had safeguards in place to prevent balance billing of COVID-19 patients once they received Provider Relief Funds (for most hospitals, in April 2020).

A copy of the Work Plan entry can be found here.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Jaime L.M. Jones

Chicago

jaimejones@sidley.com

Brenna E. Jenny

Washington, D.C.

bjenny@sidley.com

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