Provided by: Jennifer Kirschenbaum, Esq.
October 27, 2020
With so many struggling financially these days, can I waive copays for patients?
As an across-the-board strategy, No. Waiver of co-pays will get you in trouble with payors and the government, with each sector claiming the waiver of the co-pay component distorts the total price of the service and results in an illegal inducement for the patient. As this statement relates to private payors, the waiver will be in violation of your payor contract if you participate, and if you do not participate but accept assignment, the claim used by payors is usually based in fraud - that the fee you are charging is inclusive of the anticipated co-pay. As this statement relates to Medicare, the federal statutes which bans the routine waiver of copays is the Anti-Kickback statute (“AKS”-42 U.S.C. §1320a-7b(b)) and the beneficiary inducement statute (42 U.S.C. §1320a-7a(a)(5)).
Some more background on CMS' thought process, CMS has conveyed that the routine waiver of beneficiary copayments may result in false claims and excessive utilization of items and services paid for by Medicare. https://oig.hhs.gov/fraud/docs/alertsandbulletins/121994.htm. A provider who routinely waives copayments is misstating its actual charge for the service provided. Another goal of the co-pay requirement is to create pickier patients - studies have shown that patients who are required to pay even a small portion of their care are better health care consumers and are more selective about the health services they want, which means there are more Medicare funds available to pay for truly needed services. Id.
The prohibition on waiving copays is not absolute; providers may offer discounts in individualized circumstances based on genuine financial need, hardship or difficulty in the collection of payment.