Is It Illegal to Waive Co-Pays?

     One of my old patients posted an anonymous blog comment saying that he and other Hawthorne patients had been interrogated by the FBI.  So that's what the agents have been up to!  They seemed obsessed with whether I "wrote off" co-pays.
     The government has made it illegal to waive co-pays.  I am aware of this:  HIPAA, Stark, and the OIG (Office of Inspector General) prohibit physicians from seeing patients who don't fork over the co-pay--unless we treat them completely for free.
     Co-pays amount to twenty percent of the Medicare-allowed charge for services to Medicare patients.  What I find odd is that Medicare itself has waived the co-pay for all labs and certain immunizations.  Does the government have an interest in supporting lab companies or the makers of immunizations?
     It is also a federal crime, fraud, for doctors to waive co-pays for patients with private insurance.  How did insurance corporations like Blue Cross and United Healthcare weasel the government into policing their private profits?
     The logic is that if a doctor forgives a co-pay for a needy patient, the insurance company should be forgiven its entire payment to the doctor, too.  It seems juvenile--"He doesn't have to pick up his toys, so why should I?"--but since 1996 it's been the law.  Never mind that it's the physician who bears ultimate responsibility for the patient's welfare.  If we can't collect the co-pay, we should be paid nothing.
     Here's the problem: insurance companies aren't the ones who have to turn away patients with symptoms when they can't make a co-pay.  In tough economic times or in rural areas, taking care of patients without a co-pay constitutes fraud, but not taking care of them constitutes malpractice.
     It's fraud for physicians not to collect a co-pay.  But according to HIPAA definitions, it's also fraud when a physician fails to make a timely diagnosis--and it's fraud, too, if a patient has a bad outcome.  So what should a doctor do with a sick patient who requests a visit but doesn't have a co-pay?
    One option is to send patients to the emergency room, where they can be seen, eventually, by anonymous physicians.  Another is to deprive the patient of a visit or testing, and hope for the best.  Most patients get better on their own, right?
     There's a third option, and it's outlined by Medicare--vaguely. This is the option I have utilized in my office, at times, in order to take care of patients who can't afford the co-pay. A lawyer advised me about it ten years ago, and the OIG confirms it.
     If a patient is in a period of financial hardship, and would be forced to forego necessary testing or treatment without waiver of the co-pay, and if this is documented--and if it is not a "policy"--then the physician may take care of the patient and bill for services without collecting a co-pay.
     My office has never had a "policy" of waiving co-pays.  But we don't have a policy of turning patients away, either, when they're sick or something seems wrong.
     When patients tell us they can't undergo a test or obtain treatment because of the co-pay, they sign a statement attesting to their financial hardship.  We used to be detectives in my clinic, demanding proof of low income--bank statements, social security letters, pay stubs--but this became a humiliation for many patients, and in any case was onerous--and never lie-proof.  Now, if a patient gives me his word that he can't pay for medical services, and signs an affidavit, I accept it.  Then I can get on with my job, which is to find out what's wrong, medically.  Our office doesn't have the wherewithal to calculate how far above or below the poverty line someone is. We make commonsense judgments.
     We have never waived deductibles because they are not an unforeseeable expense--patients know about them well in advance of their due dates.  Medicare deductibles increase in January, and patients know they've got to budget for this.  On rare occasions patients show up in dire medical need and don't have money for the deductible.  Yes, I've taken care of them anyway. We bill for the deductible, and the patient pays--sometimes in monthly installments.  It doesn't cost the government anything, and it's the humane thing to do.
     Most people probably don't know how much begging and pleading goes on at the reception desk over deductibles and co-pays. "I'm having terrible chest pain" or "I've been throwing up all day,"--and "I don't have the $25 co-pay," patients say.  Should my receptionist tell them all to go to the emergency room?  This poses medical liability issues--not to mention ethical ones.  What if the patient dies of a heart attack on the way? If we call 911, we're required to stabilize the patient medically until the paramedics arrive.  But this falls under the definition of fraud--"seeing the patient without a co-pay."  We can ask for money at subsequent visits but everyone knows if you don't collect it up front, you're never likely to get it.
     It may be precisely because Colasante Clinic doesn't  have a "hard line" about co-pays that patients show up at our office, sick, when they don't have a co-pay.  Word has gotten around that we consider each case individually.  For patients, this beats the emergency room, where reported wait times are up to twelve hours.
     The government would like us to have a "hard line," wouldn't it?  Don't even think of coming here without a co-pay.  That would keep us out of trouble. The OIG has even suggested a four-page document to use as proof of a patient's poverty.  Saying No across the board is easier than being open, sensitive, and discriminating toward patients.
     We doctors must choose our "crime:"  1) we can forgive co-pays, as I do, on a case-by -case basis--and be accused of fraud;  2) we can send patients to the ER;  3) we can refuse to see these pleading patients, and risk a bad outcome--also fraud, by government standards; or, 4) we can deny services to our patients, and run the risk of missing a diagnosis--which is fraud, too.
     I am an information hog.  I want to know what's going on with my patients who have pain, symptoms, or risks.  I examine them thoroughly, and I sleuth out their problems.  I use testing modalities like ultrasound, labs, and x-rays to extend my senses.  Very often I am able to make an accurate diagnosis right in the office.  My patients seldom end up with CT scans or specialist appointments, and they don't crowd emergency rooms.
     Now, here's the government's hypocrisy.
     Medicaid--the state-funded health insurance for the poor--routinely, and as a matter of policy, refuses to pay their co-pay for patients who have Medicare and Medicaid.  For these patients, Medicaid--like other secondary insurances--would legally be required to pay the twenty percent for services not covered by Medicare.  But the government has granted Medicaid (i.e., itself) immunity from its own law mandating that co-payments be made for these patients.  In some states physicians have exposed this double-standard and forced the Medicaid program to back-pay doctors what is owed.  But not in Florida.
     Medicaid, moreover, has a separate rule which makes it a crime for physicians to decline services to Medicaid patients who don't have their $2 co-pay.
     Let me clarify.  If we see a Medicare patient without collecting a co-pay, we're committing fraud. But if we don't see a Medicaid patient because he doesn't have the co-pay, we're breaking the law.  And if a patient has both Medicare and Medicaid, the government grants the twenty percent co-pay owed by Medicaid to be routinely, as a matter of policy, waived.
     Get it?  Doctors are subject to three sets of co-pay rules, and doctors are the only ones who can be accused of fraud around the subject of non-payment of co-pays. They're also the ones taking care of people, and will be found guilty of fraud if they don't make a timely diagnosis, whether the patient had the co-pay or not.  And this doesn't take into consideration malpractice issues.
     Who wants to go to medical school?