By: Jacqueline Bain
The issue of whether a medical provider can provide free patient transport is one that we are asked to look into a few times every year. Aside from the liability issues that it raises, it is one that we have never been able to justify from an Anti-Kickback and Patient Brokering perspective. The fact is, even given the good intentions of most providers to allow their patients easier access to healthcare, transporting patients to and from your facility or practice is providing them with something of value in return for coming to see you. However, under slightly different facts than we are usually asked to consider the question, last week, the Department of Health and Human Services Office of the Inspector General (“OIG”) came to a different conclusion.
The OIG issued an advisory opinion upon the request of a hospital system who had asked whether it could provide free transportation to persons who had limited access to public transportation to access the hospital’s facilities. The hospital system offered that the town had inadequate and infrequent public transportation services which would act as a barrier to healthcare for local residents. The hospital system offered the following facts for consideration:
- The transportation vans would run a fixed circuit between the hospital’s various medical facilities and to the center of the local town between 8 a.m. and 6 p.m. daily;
- The transportation service would not be marketed at all; except: the availability of the service would be communicated to persons who were already patients of the hospital system; patient waiting areas within the hospital system would contain signs regarding the transportation option; hospital system personnel may communicate the availability of the transport service to patients; and the vans would have signage indicating they were hospital vans;
- The van service would not engage in any marketing towards persons being transported;
- The vans would not be equipped or operated as ambulances;
- The vans would not be equipped with medical supplies or personnel;
- The operators of the vans would be bona fide employees of the hospital system and would not be paid based on the volume of patients transported; and
- Individuals would be allowed to use the van service regardless of they had health insurance or were able to pay for healthcare items or services.
(When the OIG issues advisory opinions such as the one detailed above, they are based on a specific set of facts and applying those facts to relevant law. Reliance on an advisory opinion when a health care provider has deviated from the fact set established in the advisory opinion may not necessarily indicate compliance with the law.)
The OIG considered the facts in light of the restrictions put in place by the Federal Anti-Kickback Statute (“AKS”). The AKS makes it a criminal offense to knowingly offer, pay, solicit or receive anything of value induce or reward referrals of healthcare items or services reimbursable by a Federal healthcare program, like Medicare or Medicaid. If even one purpose of an arrangement is intended to obtain money for patient referrals, the AKS is implicated.
The OIG considered the facts set forth above and concluded that they could potentially implicate the AKS because the van service might be offered to induce patients who are insured by Federal healthcare programs to obtain healthcare items or services. However, the OIG ultimately concluded that, based on the facts certified by the hospital system, the risks of such arrangement were minimal and would likely not result in criminal prosecution.
The scenario offered by the hospital system differs from the scenario that we are normally asked to analyze in three key ways:
- The hospital system does not offer patient pick-up from home, it picks up all patients from a central location on a set schedule;
- The hospital system does not market that it provides free transportation; and
- The hospital system employs the drivers and pays them flat salaries instead of “per ride”.
Deviation in any one of these areas might further implicate the laws and will likely increase the healthcare provider’s risk for criminal prosecution.