Medical Practices: Think Twice Before Waiving Copays

Historically, family practices and many other physicians groups have routinely waived insurance copays as a gesture of goodwill to patients in a tight economy. After all, who wants to hound sick patients for their portion of the charges? 

There was a time when insurance companies turned a blind eye to these routine waivers of copays. Not anymore.

The AMA's Code of Medical Ethics Opinion 6.12 explains why routine waivers are unethical, particularly when a clinic advertises a willingness to waive copayments. 

Further, the Office of Inspector General (OIG) has long taken the position that routine waiver of copayments constitutes an illegal kickback, which is a felony. 

The routine waiver of copayments also constitutes a violation of the terms of private insurance company plans. This contractual violation serves as a basis for a recoupment audit, during which insurance companies request proof of collection of copayments for five randomly selected patients. If the clinic cannot prove it collected, or at least exhausted all reasonable means of collection, then the carrier may demand a refund for any benefits paid across a large patient population.

Perhaps most frighteningly, routine copay waivers constitute ordinary financial fraud. If a patient is charged $100 and the insurance carrier is billed $80, the patient is supposed to pay $20. If you never attempt to collect the $20, this means the actual charge is $80, not $100.  Therefore, the insurance company should only pay $64 (80 percent of the $80
Fraud or dishonesty is a primary way to get in trouble with state medical boards.

There are provisions for waiving copayments in cases of financial hardship. At a minimum, you should document the financial hardship, and obtain a release from the patient to turn the financial document over to the insurance company, if requested. 

The OIG states the following criteria for waiver on the basis of financial hardship:
• The waiver must be based on a good faith determination of the patient’s financial need. In other words, waivers must not be applied routinely. The government does not specify the financial status that would justify a waiver, so you should develop your own approach, apply it consistently, and document your efforts. For example, if your efforts to collect on a patient’s bill fail, or if it’s obvious that a patient is struggling to pay the amount owed, ask the beneficiary to fill out a form noting their employment status and average household income and expenses. Then make your determination based on the information provided.

• The waiver must not be based on the amount of the charges. Your decision about whether to waive what a patient owes should be based on the patient’s ability to pay without regard to what Medicare may have paid or the total charges for the service.

• The waiver must not be offered as part of an advertisement or solicitation.

State laws vary regarding waivers. Therefore, seek the advice of an experienced health lawyer in your state if you have questions about your practices.