OIG: Complimentary In-Home Care Permitted, Despite Potential Anti-Kickback Violation

A recent advisory opinion issued by the U.S. Department of Health and Human Services Office of the Inspector General has given a medical center the go-ahead to provide free in-home care to reduce re-admissions, despite a prohibition against giving patients handouts that might influence care decisions.

The OIG advisory opinion is in response to a request by an unnamed nonprofit medical center regarding a program that provides free, in-home follow up care to eligible individuals with congestive heart failure, along with a proposed expansion of the program to include certain individuals with chronic obstructive pulmonary disease.

In its opinion, the OIG noted that the requestor’s arrangement doesn’t “promote access to care,” thereby failing to qualify for an exception to the civil monetary penalties law (CMP). However, the watchdog agency went on to state that the “benefits outweigh any risk of inappropriate patient steering that the statute was designed to prevent.”

The requestor stated that the program’s goal is to increase patient compliance with discharge plans, which in turn would improve their health and reduce hospital inpatient admissions and re-admissions.

In order to receive the services, they must be current patients, must be high risk for readmission, and must schedule follow-up care at the requestor’s facility. Patients are screened by clinical nurse leaders to determine if they met eligibility requirements.

Under the arrangements, patients who meet all eligibility criteria and who choose to participate receive two visits from a community paramedic each week for approximately 30 days following enrollment. Each visit takes place in the patient’s home or ALF and lasts approximately 60 minutes, during which time the community paramedic may perform a variety of services including a review of the patient’s medication, the need for follow-up appointments, a physical exam, patient compliance with the discharge plan, and even a home safety inspection.

Neither the patient, nor payors would be billed for the services and no costs would be shifted to the patient or payors, including Medicare and Medicaid. If care outside the scope of the arrangement is needed, it would be billed as if the patient was not participating in the arrangement.

The anti-kickback statute makes it a criminal offense to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce or reward referrals of items or services reimbursable by a federal health care program.

In giving its blessing to this particular program, the OIG reasoned that “although the remuneration provided under the Arrangements implicates the Beneficiary Inducement CMP because it could influence a patient to select Requestor or the Clinic for federally reimbursable items or services, we believe that the Arrangements’ benefits outweigh any risk of inappropriate patient steering that the statute was designed to prevent.”

OIG noted that the safeguards put into place (i.e. the ability to select their preferred provider), combined with requestor’s stated goal to improve patient health by offering free follow-up care to patients with chronic conditions, “allow us to conclude that the remuneration poses a low risk of harm to patients and Federal health care programs.”

Moreover, the OIG points out that the arrangements could actually result as a savings to federal healthcare programs if they improve patient health and reduce hospital inpatient admissions or re-admissions.

Although the opinion relates only to this particular case, it does offer some guidance to others considering similar arrangements. Of particular note is that the OIG said this arrangement does not satisfy the “promotes access to care” exception to the CMP and that its decision not to impose sanctions was “an exercise of our discretion.”

As always, it’s best to discuss any such arrangements with counsel. If you have any questions about any proposed arrangements you are considering, contact us at 305-358-4500 or send us an email to info@vitalehealthlaw.com.

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It is not intended as professional advice and should not be construed as such.