Fact check: Contrary to Trump’s claim, no law required Roger Marshall to sue his patients

By Daniel Dale, CNN

(CNN) — No law required Sen. Roger Marshall to file lawsuits against patients who had unpaid medical bills.

Marshall, a Republican obstetrician-gynecologist who is in a competitive race for re-election in Kansas, has faced criticism over a New York Times report that he launched hundreds of lawsuits against patients who had outstanding bills and charged patients an 18 percent annual interest rate. The Times reported that dozens of Marshall’s patients were arrested after missing court dates in collections cases.

President Donald Trump has claimed that Marshall was required by law to take aggressive action to collect from patients – though Marshall has also said that he wrote off many patients’ bills. Trump has even asserted that Marshall could have been arrested if he didn’t do what he did.

“He was given a bum rap because he was mandated by law to request, strongly, money owed from patients. You’re not allowed not to do it. You have to, by law, go after those people. And they made it like, oh, he was some kind of a Shylock-type guy,” Trump said at a Kansas rally on Monday, invoking an antisemitic trope. “And if he didn’t make these requests, he would be breaking the law, he would have been breaking a very strong criminal law, and he would be subject to criminal arrest and liability.”

But state and federal laws give doctors and hospitals wide latitude to choose to forgive patients’ debts over financial hardships or to pursue unpaid bills using methods gentler than litigation. Marshall himself claimed to CNN’s Manu Raju last week that “each year, our hospital gave away millions of dollars of charity care” and that “we wrote off hundreds of people’s bills every month.”

Similarly, there is no law that would subject a doctor to potential arrest for choosing to forgive the bills of patients who had difficulty paying. And there is no law requiring 18 percent interest on unpaid bills. The Kansas City Star, which has also debunked Trump’s claim, found that the 18 percent rate was unusually high in the state even among the Kansas medical practices that chose to sue patients.

Marshall’s campaign did not respond to repeated CNN requests to identify the law that supposedly mandated his actions. The White House, in an unsigned email, mentioned two connected federal laws, one criminal and one civil, that require healthcare providers who serve patients enrolled in federal benefit programs to make a reasonable effort to collect payments from most patients – but the White House didn’t mention that those laws allow providers to forgive the money owed by people who can’t afford to pay.

In fact, one of the very articles the White House sent as supposed evidence explicitly says that the federal inspector general overseeing health services “has confirmed that it will not enforce the (two laws) against providers who waive copays or deductibles due to genuine financial hardship.” We’ll discuss that further in the next section of this article.

“I’m not aware of any federal or Kansas law that requires doctors to collect money owed by patients and holds them criminally liable if they do not,” Christopher Garmon, an associate professor of health administration at the University of Missouri-Kansas City, said in an email. “Doctors, and other health care providers, are given broad discretion to decide how to bill patients (e.g. how much to set as billed charges) and how much to collect in certain situations. It is common for health care providers to provide charity care to low-income uninsured patients and to write off unpaid bills as ‘bad debt.’”

Garmon noted that “there are requirements that health care providers must make good faith efforts to collect patient cost-sharing to participate in certain health plans or programs (e.g., Medicare).” But he added, “I’ve never heard of a doctor going to jail for failure to collect money owed by patients.”

Barak Richman, a professor and co-director of the health law program at The George Washington University, said in an email: “Unless Kansas is remarkably different from the states that I’ve studied, I can say with confidence that the decision to sue a patient on an unpaid debt is up to the provider’s discretion, and it’s an action that most providers decide not to take.”

Federal anti-kickback law allows doctors to forgive debts

Trump suggested in his Monday speech that the law he is referring to “has to do with the collection of money for the federal government.” Marshall told Raju last week that “when and if it happened – like every other hospital, nonprofits alike and other doctors’ offices – some of those people by law have to go to collections. There has to be some effort to go to collections. Or otherwise, CMS (the Centers for Medicare & Medicaid Services), Medicaid, we’d be in violation of that as well.”

The White House’s unsigned email mentioned a criminal law called the Anti-Kickback Statute, under which doctors can face prison time, and a civil law called the Civil Monetary Penalties Law, under which doctors who violate the anti-kickback law or other statutes can face additional penalties.

But the website of the federal health department’s inspector general makes clear that no legislation requires doctors or hospitals to sue patients.

In undated guidance to physicians, the website says, “Where the Medicare and Medicaid programs require patients to pay copays for services, you are generally required to collect that money from your patients. Routinely waiving these copays could implicate the (Anti-Kickback Statute) and you may not advertise that you will forgive copayments.”

But here’s the key: The advice immediately continues by saying, “However, you are free to waive a copayment if you make an individual determination that the patient cannot afford to pay or if your reasonable collection efforts fail. It is also legal to provide free or discounted services to uninsured people.”

Separately, the inspector general’s office explained in 2022 that to meet the “reasonable” standard, a healthcare provider’s collection effort must include issuing a bill and then taking actions “such as subsequent billings, collection letters, telephone calls, or personal contacts with the responsible party.” Lawsuits are not on the list of required actions. In addition, the office said that in cases where a healthcare provider has determined that a patient is “indigent,” they don’t have to make the usual reasonable collection efforts.

Marshall is running against Democratic candidate Adam Hamilton, a pastor. Hamilton campaign spokesperson Tyson Brody said in an email, “Roger Marshall chose to sue his patients. He chose to charge them 18% interest, and he and his personal lawyers chose to file warrants for their arrest. These were not normal business practices – they were extreme and predatory.”

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