On July 8, 2024, OIG updated the Frequently Asked Questions on its website, adding four new questions and answers to its General Questions Regarding Certain Fraud and Abuse Authorities. The questions touch on (1) a hospital’s ability to waive cost-sharing charges to patients in connection with financial assistance and charity care policies, whether such waivers violate the federal anti-kickback statute (AKS) or the Civil Monetary Penalty Law (CMP Law) and whether a hospital can make Federal health care program enrollees aware of such waivers; (2) a hospital’s provision of free care to uninsured patients and whether advertising such care would violate the AKS or CMP Law; and (3) whether a hospital can disseminate on its website and in public areas, without violating the AKS or CMP Law, information about its financial assistance policy that requires an individual assessment of a patient’s financial need and offers of financial assistance to patients who have such a financial need. The exact questions and a summary of OIG’s answers are below.

(13) Does the Federal anti-kickback statute or the Beneficiary Inducements CMP prohibit hospitals from waiving their patients’ cost-sharing amounts pursuant to hospitals’ financial assistance or charity care policies?

OIG states that, as a general matter, the AKS and CMP Law do not apply to cost-sharing waivers for those who are uninsured or who are insured by a commercial health insurance plan. But for Federal health care program enrollees, the laws could be implicated: “[H]ospitals that routinely waive cost-sharing amounts—as part of a financial assistance policy or otherwise—for reasons unrelated to individualized, good-faith assessments of financial hardship may be held liable under the Federal anti-kickback statute, the Beneficiary Inducements CMP, or both.”

However, OIG states that it is possible to structure cost-sharing waivers for Federal health care program enrollees such that the waivers fall under an AKS safe harbor or an exception to the Beneficiary Inducements CMP. For example, waivers based on an enrollee’s financial need are likely low-risk under the AKS, so long as the waivers are neither advertised nor routine and made based on a good-faith assessment of the individual enrollee’s financial need. Similarly, waivers may satisfy an exception to the definition of “remuneration” under the Beneficiary Inducements CMP, provided the waivers are: (i) not offered as part of any advertisement or solicitation; (ii) not routine; and (iii) made following an individual determination of financial need.

(14) Can a hospital make patients aware of its financial assistance policy that permits lawful waivers of Federal health care program enrollees’ cost-sharing amounts without violating the Federal anti-kickback statute, the Beneficiary Inducements CMP, or both?

Yes, but only if the waiver “is not offered as part of any advertisement or solicitation.” Whether a particular communication constitutes an “advertisement or solicitation” depends on the facts and circumstances of each situation. OIG offers two general observations about what would and would not qualify as an advertisement or solicitation. First, a hospital stating on its website that the hospital offers financial assistance to patients in financial need, and that patients in need should contact the hospital’s billing office for further information, would not be considered a noncompliant advertisement or solicitation. Second, and on the other hand, a hospital announcing on its website that it offers “insurance only” billing to all patients (as an inducement to attract patients to the hospital, including Federal health care program enrollees) would be an advertisement or solicitation that presents risk under the Beneficiary Inducements CMP and the AKS.

(15) A hospital’s financial assistance policy establishes that the hospital furnishes free care to uninsured patients and patients insured solely by commercial health plans, including qualified health plans (“commercially insured patients”). Does the provision of free care to uninsured patients or commercially insured patients, pursuant to this policy, violate the Federal anti-kickback statute or the Beneficiary Inducements CMP? Would advertising the free care available to uninsured or commercially insured patients under the policy or otherwise communicating about the free care available to uninsured or commercially insured patients under the policy to patients or potential patients violate the Federal anti-kickback statute or the Beneficiary Inducements CMP?

No. OIG states that neither the AKS nor the Beneficiary Inducements CMP prohibits hospitals from furnishing free or discounted services to uninsured or commercially insured patients. And neither statute prohibits hospitals from advertising or communicating about the provision of such services.

(16) A hospital’s financial assistance policy provides that the hospital must conduct a good faith, individualized assessment of the financial need of any patient who requests financial assistance with their bill, and after making such an assessment, offer financial assistance to any patient who qualifies as having financial need. Under the policy, the hospital does not routinely waive any patient’s cost-sharing obligations. The hospital shares that it provides assistance to patients with financial need and suggests on its website, on posters in the hospital’s public areas, and on its mailed bills that patients may contact the hospital for additional information about potential financial assistance. Can the hospital disseminate this message on its website, its public areas, and its billing materials without violating the Federal anti-kickback statute or the Beneficiary Inducements CMP?

Yes, so long as the hospital’s policy prescribes lawful assistance to Federal health care program enrollees and the hospital follows that policy when providing the assistance, then the hospital can disseminate information about its financial assistance policy through its website, on posters in the hospital’s public areas, and on its mailed bills (and potentially through other mechanisms) in a manner that is sufficiently low risk to avoid sanctions under the AKS and other OIG authorities.

The new FAQs are available here.