As part of the response to the COVID-19 pandemic, Congress provided funding for testing of patients without health insurance. To receive this reimbursement for testing, providers must attest that the patient is uninsured. However, it is not clear how providers must gather this information, exposing providers to risk of enforcement actions.
For claims for COVID-19 testing and testing-related items and services, a patient is considered uninsured if the patient does not have coverage through an individual, or employer-sponsored plan, a federal healthcare program, or the Federal Employees Health Benefits Program at the time the services were rendered. For claims for treatment for positive cases of COVID-19, a patient is considered uninsured if the patient did not have any health care coverage at the time the services were rendered. For claims for vaccine administration, this means that the patient did not have any health care coverage at the time the service was rendered.
The funding of testing for the uninsured is administered by the Health Resources & Services Administration (HRSA) under the COVID-19 Claims Reimbursement to Health Care Providers and Facilities for Testing, Treatment, and Vaccine Administration for the Uninsured Program. Congress has allocated $2 billion to this program through The Families First Coronavirus Response Act (FFCRA) and the Paycheck Protection Program and Health Care Enhancement Act (PPPHCEA), as well as a portion of the Provider Relief Fund.
This “HRSA funding” for testing of the uninsured functions as a claims reimbursement program wherein eligible healthcare providers submit claims to HRSA for reimbursement. As part of the claim submittal, the provider must “verify and attest” that the patient is, in fact, uninsured. However, it is a matter of some debate what efforts a provider must take to verify a patient’s uninsured status. HRSA has instructed providers, in various guidance documents, to “check” for healthcare coverage eligibility and “confirm” that the patient is uninsured. Elsewhere, HRSA has instructed providers to use “best efforts” to determine insurance status.
HRSA’s language may imply that the use of an insurance verification tool to check coverage status will satisfy this requirement, although this method is not always feasible. There may also be other actions that satisfy this requirement, such as receiving a signed attestation from the patient. Simply asking the patient if they are insured and taking no additional action may not satisfy this requirement. A provider making the operational decision on how it will gather this information should be aware of the regulatory risks involved. Federal authorities have promised enhanced enforcement related to funding for COVID-19 programs, so this risk may include demands for overpayments as well as liability under the False Claims Act for attestations of uninsured status that turn out to not be accurate.
For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding new developments in healthcare regulation. If you or your healthcare entity has any questions pertaining to healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or wapc@wachler.com.