Home Health & Hospice Week

Are you considering offering free transportation to your patients?

Medicare’s shift in focus to patient outcomes may finally be showing up in compliance regulations.

Background: In the Dec. 7, 2016, Federal Register, the HHS Office of Inspector General published a final rule that seemed to speak to many providers’ frustrations about the Anti-Kickback Statute rules regarding safe harbors. The rule offered an olive branch to providers and their business partners with revisions to old standbys that suggested easing up on regulations to promote the delivery of coordinated care.

“Although the rulemaking finalizes 10 new AKS and beneficiary inducement CMP exceptions/safe harbors, a number of them apply only in very narrow circumstances,” says attorney Christopher G. Janney of Dentons US in Washington, D.C. “Three of them, however, are broadly applicable and significant.”

Here are the three most important ones that Janney suggests you know:

1. The new AKS safe harbor for local transportation (see Eli’s HCW, Vol. XXV, No. 45);
2. The new CMP exception for items and services that improve a beneficiary’s ability to obtain covered care and pose a low risk of program harm; and
3. The new CMP exception for medical items and services provided to those in financial need. Some of the other CMP exceptions and safe harbors are:

• Cost-sharing waivers for Medicare Part D beneficiaries with financial need;
• Cost-sharing waivers for emergency ambulance services;
• Discounts for drugs under the Medicare Coverage Gap Discount Program;
• Copayment reductions for certain outpatient services;
• Coupons, rebates, and rewards for certain retailers;
• Medicare Advantage organizations and federally qualified health centers changes; and
• Reductions on the first prescription of generic drugs.

Examine Transportation Caveats Closely

The new OIG offerings could be beneficial, but stipulations do exist and there are some exceptions. “Moreover, several of these conditions will require providers to make sometimes difficult judgment calls as to whether a particular offering is on the right side of what remain somewhat blurry lines.”

For example: Under the AKS safe harbour for local transportation the beneficiary receiving the service must be an “established patient”— a person who has selected and initiated contact with a provider or supplier to schedule an appointment or who has given consent to someone to do it for them — and has a medically necessary need for it, the final rule suggests. In addition, the transportation covers only 25 urban miles or 50 rural miles to a home health facility, pharmacy, or lab and will not be covered if the transport is air, luxury, or ambulance-level transportation.

Despite the minutia, the new safe harbour options echo governmental efforts to put patients’ needs first. “Overall … these provisions significantly expand the universe of free and discounted items and services that hospitals, physicians, and other providers may furnish to Medicare, Medicaid, and other federal health care program beneficiaries,” Janney maintains.

A New Lens

“There is no question that many of these changes are being driven by the seemingly inexorable move from a fundamentally ‘fee-for-service’ reimbursement model to a fundamentally ‘managed care’ reimbursement model,” Janney explains. “The AKS and beneficiary inducement CMP are creatures of a fee-for-service world; all other things being equal, their policy objectives do not align well with a managed care world; and Congress, CMS and HHS-OIG recognize this, as reflected in rulemakings such as this.”

Final note: In the past, commercially insured patients have reaped many of the benefits that fall under these safe harbor changes while those covered under federal healthcare have been left to the wayside. “Many coupon, discount, and other reward programs have historically carved-out Medicare and Medicare beneficiaries,” Janney says. “These new rulemakings are, at least in part, an effort to level the playing field a bit.”