The OIG’s Strategic Plan to Provide Oversight of the COVID-19 Response and Recovery
This Bulletin is brought to you by AHLA’s Hospitals and Health Systems Practice Group.
- June 24, 2020
- Don Walker , Texas Children’s Hospital
On May 26, 2020, the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) released its strategic plan for oversight of COVID-19 response and recovery. The OIG set forth four goals to drive its mission and execution with respect to COVID-19 response and recovery: (1) protect people, (2) protect funds, (3) protect infrastructure, and (4) promote effectiveness of HHS programs now and in the future. These goals will have an impact on providers in many ways, but particularly with respect to fraud, waste, and abuse enforcement generally and to enforcement activity related to the Provider Relief Fund.
Overview of the Four Goals
The OIG has identified key actions and objectives to implement each of its goals.
The OIG outlined three objectives that will support its effort to protect people. First, the OIG plans to assist in supporting ongoing COVID-19 response efforts while maintaining the OIG’s independence. For example, it has noted it will issue guidance on fraud enforcement, conduct rapid-cycle review of conditions affecting HHS beneficiaries, and deploy law enforcement to ensure continuity of operations. Second, the OIG will continue to combat fraud, prioritizing cases involving patient harm, and to alert the public to scams associated with COVID-19. Finally, the OIG will assess the effectiveness of HHS programs through audits and evaluations of HHS efforts.
As of mid-May 2020, HHS was appropriated $251 billion for COVID-19 response and recovery, including $175 billion for the Provider Relief Fund. The OIG has stated its intention not only to audit HHS but also to audit fund recipients “to assess whether they met use, reporting, and other requirements, and, where appropriate, recommend recovery of misspent funds.” The OIG plans to audit and investigate instances where it believes COVID-19 funding was diverted from its intended use or where recipients exploited emergency flexibilities granted by the government. While the OIG did not expound on the criteria for exploiting emergency flexibilities, presumably the OIG plans to determine whether providers abused such flexibilities and/or used for purposes other than to support patient care during the COVID-19 pandemic.
The OIG identified the protection of HHS information technology systems, infrastructure, and personal information as “critically important to the health and well-being of the American people.” Further, the OIG noted increasing cyberattacks and the utmost need to protect against research and intellectual property theft. While this goal appears limited to HHS, it is instructive with respect to HHS’ perspective on information security both as to patient data and to research and intellectual property. This goal may impact providers engaged in federally funded research.
The OIG will provide oversight to HHS’ efforts and attempt to identify successful practices at the federal, state, and local level. Further, the OIG will review pandemic preparedness and assess the impact of COVID-19 emergency flexibilities.
Impact to Fraud, Waste, And Abuse Enforcement Generally
The OIG’s Strategic Plan provides some insights into future fraud, waste, and abuse activity. Notably, the OIG stated it is using data analytics, including artificial intelligence, to detect suspicious activity. This data will help drive oversight and enforcement. To the extent such artificial intelligence and data analytics are used to support enforcement action, providers will need to assess the reliability of these tools in future enforcement actions.
Potential Enforcement Activity Related to Provider Relief Fund
As expected, the OIG declared its intention to audit recipients of the Provider Relief Fund. Such audits will focus on recipients’ compliance with use and reporting requirements. The terms and conditions of the fund explain that full compliance with the terms and conditions “is material to the Secretary’s decision to disburse these funds to you” and “[n]on-compliance with any Term or Condition is grounds for the Secretary to recoup some or all of the payment made from the Relief Fund.” Accordingly, failure to comply with the terms and conditions could result in repayment of the funds.
In addition to a repayment risk, noncompliance with the terms and conditions poses a false claim risk. A fund recipient can be liable for a reverse false claim if it “knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly avoids or decreases an obligation to pay or transmit money … to the Government….” In that regard, the terms and conditions have a provision that “any deliberate omission, misrepresentation, or falsification of any information contained in this Payment application or future reports may be punishable by criminal, civil, or administrative penalties,” including revocation of Medicare billing privileges or exclusion from federal health care programs.
Both because of the potential to repay funds and the false claims risk, providers must take care to ensure understanding of, and compliance with, the terms and conditions applicable to any funds it received or receives. As many providers have noticed, the frequently asked questions related to the Provider Relief Fund continue to be updated and supplemented—as of June 17, 2020, FAQs on general matters apparently were still being added, with the most recent FAQ being added as late as June 15, 2020. Accordingly, this guidance remains very fluid, and recipients of Provider Relief Funds should monitor the FAQs for the foreseeable future for any changing guidance.
Don Walker is Director, Legal Corporate Operations and Senior Legal Counsel at Texas Children’s Hospital. Any opinions expressed in this article are personal to Mr. Walker and do not constitute statements or opinions offered by, or on behalf of, Texas Children’s Hospital.