What to know about health care fraud and abuse law flexibility amid COVID-19

Health care systems across the country have increasingly embraced innovative models of integrated health care and social services to address patients’ health-related social needs, this year more so than ever. As COVID-19 has caused economic hardships that have led to crises in areas such as housing and food access, the pace at which health systems are considering the adoption of these community-clinical partnerships has accelerated. However, health care and social service providers looking to collaborate must also navigate complex health care fraud and abuse laws. Fortunately, according to the Center for Health Law and Policy Innovation of Harvard Law School’s (CHLPI’s) Health Law Lab, there are pathways to effective community collaborations and partnerships for health care entities looking to address unmet social needs.

In its recent issue brief, CHLPI’s Health Law Lab explores key takeaways of new analyses of health care fraud and abuse laws from the U.S. Department of Health and Human Services Office of the Inspector General (OIG). The brief highlights the OIG’s recognition of the current urgency for interventions that respond to the social determinants of health (SDOH) and the need for common-sense flexibility during the public health emergency. CHLPI’s Health Law Lab decodes OIG’s analysis using concrete examples and offers recommendations on how agencies can leverage flexibilities to advance coordinated care. 

“The COVID-19 pandemic has complicated and exacerbated social problems that have long impacted individuals’ health and well-being: access to food, housing, transportation, and technology, to name a few,” said Robert Greenwald, Faculty Director for CHLPI. “The OIG’s feedback recognizes the critical role that health care providers can play in connecting their patients with the social services they need. We urge providers to take advantage of the current regulatory flexibilities and build the systems necessary to truly address issues that are most impacting patients’ health.”

CHLPI’s analysis explains how the provision of services that have historically caused concern for fraud or abuse may now be considered lower risk. For example, in the past, OIG has been critical of federal health centers seeking to provide cash or cash-equivalents and gift cards to their patients. In light of COVID-19, OIG offered feedback on how health care entities may structure the distribution of cash-equivalent gift cards (e.g., a general-purpose debit card) to patients to help address SDOH while minimizing risk of noncompliance with fraud and abuse laws.

“This new feedback from OIG opens up an incredible opportunity to test out innovative collaborations between health and social service programs and demonstrate their effectiveness,” said Sarah Downer, Associate Director of Whole Person Care for CHLPI. “We hope that information in our analysis encourages more health care systems to embrace social-needs interventions.”

The Health Law Lab advances health care system efforts to address social determinants of health and health related social needs, improve health equity, and mitigate health disparities.  As a project of the Center for Health Law and Policy Innovation of Harvard Law School (CHLPI), the Health Law Lab strives to educate the next generation of health care law and policy thought leaders through hands-on work with clients, partners, and community allies.

For more information about this analysis, or for other questions relating to health care fraud and abuse laws and care coordination, please contact Rachel Landauer, rlandauer@law.harvard.edu.

The Health Law Lab’s issue brief is available here: https://www.healthlawlab.org/wp-content/uploads/2020/12/Prioritizing-People-Health-Care-Fraud-and-Abuse-Law-Flexibility-During-COVID-19.pdf.