QUESTION: I am planning to build my private practice by offering patients discounts and/or to waive their copayment or deductible obligations. Is this legal? Must it be done on an “across the board” basis or can I instead be selective in deciding which patients to offer the waivers?

Second, Michigan's Health Care False Claim Act (the "False Claim Act") makes it illegal to submit a claim for payment to a third party payer that contains a statement of fact or that fails to reveal a material fact that is misleading. Discounting a fee for a patient covered under a policy issued by a health care corporation or health care insurer or waiving such patient's copay or deductible obligation without disclosing this fact could constitute the submission of a claim which fails to reveal a material fact. In the absence of the disclosure it will appear to the health care corporation or health care insurer that your fee for the service provided was more than what was actually charged. Therefore, the claim may be deemed "deceptive" and "false" under the False Claim Act. The False Claim Act also prohibits the "rebate" all or any portion of your fee if the rebate is given to a patient in consideration of that patient providing you a referral(s) of other patients.

Third, the Federal Department of Health and Human Services ("HHS") has taken the position that the routine (i.e. “across the board”) waiver of Medicare copayments and deductibles by health care providers could be a violation of the Federal False Claims Act and the Federal Anti-Kickback statute. HHS' theory is that if the waiver of the patient's copayment and/or deductible was based upon any reason other than the patient's financial hardship (e.g. referrals of patients by the patient whose deductible or copayment had been waived) violations of these Federal statutes would likely be deemed to have occurred. In guidance issued by HHS, it has been made clear that only the "routine" Medicare and/or Medicaid copayments and deductibles would subject the health care provider to HHS scrutiny for violation of these Federal statutes. To the contrary, waivers of Medicare and/or Medicaid copayments and deductibles made on a case-by-case basis due to a finding of patient's financial hardship would not subject the health care provider to such scrutiny. To protect yourself the best practice is to have a written policy in effect in your practice setting forth the criteria that is used to determine when copayment and deductible obligations will be waived and to limit those waivers to only those cases where a financial hardship combined with a documented need for care is present.