In a recent Advisory Opinion (No. 16-02), the OIG concluded that it would not seek sanctions against a state-run hospital (the “Hospital”) under the federal anti-kickback statute or the civil monetary penalty law for two arrangements under which the Hospital provides transportation aid and short-term lodging to pregnant women covered by federal health care programs. Although the OIG stressed that the unique factors of the arrangements led to its decision, the OIG’s analysis offers some insight into its concerns regarding the provision of transportation and other aid to patients by a provider.
The Hospital is a state academic medical center that operates 11 Hospital-based clinics providing prenatal care (the “Clinics”). The patients are primarily low-income women, and each is presented with the Hospital as a potential location for the delivery of her child. In 2014, 97% of the Clinics’ patients who delivered at the Hospital had high-risk pregnancies.
Under the first arrangement, Hospital employees offer transportation aid to any Clinic patient with a high-risk pregnancy who expresses concern about the cost and distance of traveling to the Hospital for delivery. The aid is offered in the form of mileage reimbursement or fare reimbursement (for public transportation).
Under the second arrangement, the Hospital offers a Clinic patient and her companions free lodging at an apartment building near the Hospital under certain circumstances. The apartments have simple living accommodations and are staffed by an on-call nurse. To be offered lodging, the patient must have a physician’s order justifying the stay. As a result, the majority of the patients who receive free lodging under this arrangement have high-risk pregnancies requiring frequent monitoring. Patients without high-risk pregnancies may be offered lodging only if they are experiencing contractions or are scheduled for induction of labor or delivery the following day. All patients receiving free lodging also receive free transportation to the Hospital for delivery.
The Hospital stated that the purpose of the above-described arrangements is to allow Clinic patients to benefit from specialty and continuing care at the Hospital when close to the end of their pregnancies. In its Advisory Opinion, the OIG acknowledged the Hospital’s legitimate purpose and concluded that it would not pursue sanctions against the Hospital under the federal anti-kickback statute or civil monetary penalties law, even though, in the OIG’s opinion, these arrangements implicated both laws. The OIG emphasized that its decision was influenced by the unique circumstances of the arrangements, and that no individual factor (or any combination of factors other than all of them) would necessarily result in the same decision. Nonetheless, the OIG’s concerns provide some insight into how the OIG would view similar arrangements in the future.
The OIG’s analysis rested on the following key factors of the arrangements:
- The arrangements were beneficial to the patients because they provided continuity of care, access to specialty care, and focused on patients who lack sufficient financial means of delivering at the Hospital.
- The aid given to the patients would be “modest” in nature and available only in limited circumstances. Specifically, (i) the transportation aid would be available only if a patient expressed concern about her ability to afford the cost of traveling to the Hospital for delivery, and (ii) the lodging aid would be available only if the patient has a high-risk pregnancy or is scheduled for delivery the following day, and the patient receives a physician’s order justifying the stay.
- The aid would not be advertised by the Hospital or the Clinics, and would be offered only to existing patients. As a result, the OIG did not view this arrangement as being designed to serve as an inducement for patients to seek care at a Clinic or the Hospital over other providers.
- Eligibility for the aid would not be limited to patients on the basis of their health insurance coverage.
- The cost of the aid would not be claimed as bad debt or otherwise shifted to Medicare, Medicaid or another federal health care program.
- The aid would be part of a program of care operated by a state-run academic medical center for the benefit of a large number of Medicaid and CHIP beneficiaries. As a result, the OIG stated that it would expect the State to promote the integrity of the arrangements.
If you or your practice is interested in guidance on providing aid or other benefits to patients, be sure to consult experienced legal counsel.
The full text of the Advisory Opinion is available here: http://oig.hhs.gov/fraud/docs/advisoryopinions/2016/AdvOpn16-02.pdf