The Families First Coronavirus Response Act (FFCRA) was enacted in March 2020 as part of the government’s response to the COVID-19 pandemic. The FFCRA, among other things, provided funds for diagnostic testing and services for people without insurance for COVID-19. These funds were distributed through the COVID-19 Claims Reimbursement to Health Care Providers and Facilities for Testing, Treatment, and Vaccine Administration for the Uninsured Program (HRSA uninsured program). Providers seeking reimbursement under the HRSA uninsured program were required to enroll as a provider participant and check to ensure that patients were uninsured.

The HRSA uninsured program paid out more than $24.5 billion in claims. With the passage of the Fiscal Responsibility Act of 2023 and the related rescission of program funds, no further payments will be provided. However, given the significant expenditure of funds, government investigations and enforcement actions of the HRSA uninsured program are likely to continue for the foreseeable future.

The Standards for Determining HRSA Uninsured Status

HRSA requires that providers verify and attest that, to the best of the provider’s knowledge, the patient was uninsured at the time of the claim submission. For claims related to COVID testing, treatment of positive cases, and/or vaccine administration, this means the patient did not have any health care coverage. While providers may submit a claim for uninsured individuals before the Medicaid eligibility determination is complete, if the provider later learns the patient is retroactively enrolled in Medicaid as of the date of service, the provider must return the payment to HRSA. In addition, providers must attest that they verified that the patient does not have health care coverage, and no other payer will reimburse them for COVID-19 testing and/or vaccine administration.

HRSA did not provide guidance regarding the extent of the duty the provider was required to undertake to confirm the patient’s uninsured status was verified. This lack of regulatory guidance was likely due to the need to get the system in place quickly during the pandemic. Providers were, therefore, left to their own methods to confirm the patient’s status. This may have included requesting insurance information from the patient, requiring patients to attest to their insurance status, utilizing third-party tools and databases to confirm insurance status, or verifying via the Medicare Common Working File.

Given the lack of clear guidance as to the provider’s responsibilities for verifying patients’ insured status, government inquiries seem likely. The HRSA uninsured program’s terms and conditions state that the provider must attest “to the best of [their] knowledge” that the patient was uninsured at the time services were provided. Some guidance can be gleaned from a recent government case as to what this requires. In United States v. Dinh, 23-cr-131 (C.D. Ca.), the government alleged the physician executed a scheme to defraud HRSA, inter alia, by intentionally submitting false or fraudulent claims to HRSA for patients that were insured when the service was provided. In the case against Dinh, the government stated that because the provider was enrolled in Medicare, the provider could have used the Medicare Common Working File to verify insurance information for patients. While this is not an explicit requirement, the government’s reference to the Common Working File suggests that simply asking patients about their insurance status was insufficient. Although the allegations against Dinh included far more fraud than only submitting claims for insured patients, such as submitting claims for services that were never rendered, submitting claims to HRSA for insured patients is a part of the alleged criminal conduct.

What if the patient provided incorrect information?

It is possible patients unknowingly provided incorrect information about their insurance status. In such cases, if a claim was submitted to the HRSA uninsured program for a patient who was actually insured, the provider should have received a notice that the claim was not eligible for reimbursement. If the claim was for a COVID-19 vaccine and the patient’s health plan either did not cover the vaccine or covered the vaccination but with cost-sharing, the provider should submit the claim to the individual’s insurance plan for payment. If the claim is denied, the provider can then submit the claim to the HRSA COVID-19 Coverage Assistance Fund. Efforts to obtain payment from private insurers must be documented.

Conclusion

There are no conclusive details or requirements that delineate the provider’s duty to confirm insurance coverage. Given the billions of dollars spent on the HRSA uninsured program, it is extremely likely the government will conduct audits of providers that billed the program. In addition, data analytics will likely be used to identify patients who did not qualify for HRSA COVID uninsured benefits. Finally, qui tam actions are likely to be brought against providers who intentionally submitted claims for insured patients or potentially against providers who simply did not check patients’ insurance status.

Providers that participated in the HRSA uninsured program should consider self-audits to ensure compliance and proactively address any issues. In addition, providers should maintain records of services they submitted to the uninsured program, specifically retaining all documents supporting their efforts to verify patients’ insurance status.

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About the Author:

Andrew Sparks is a Member in Dickinson Wright’s Lexington office. He practices in the area of litigation with a particular emphasis on government enforcement, white collar criminal defense, internal and government investigations, health care and false claims act matters, and complex business disputes. Andrew can be reached at 859-899-8734 or asparks@dickinsonwright.com and his firm bio can be viewed here.

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