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OIG reviewing comments on provision of patient transportation
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In 2014, the Office of the Inspector General accepted comments from the public in connection with a proposed safe harbor relating to the provision of free or discounted transportation services provided to Medicare patients. If issued in final form, providers who meet the safe harbor criteria would be protected against the risk of enforcement for a violation of the Medicare statutory Patient Inducement Prohibition. That provision authorizes the imposition of civil penalties and possible exclusion against providers who offer improper inducements to patients.
Alan E. Reider
The statutory prohibition was enacted in 1996, when Congress was concerned about providers offering improper inducements to patients, which threatened to generate unnecessary utilization, as well as providing unfair influence on patient choice. As part of the legislative Conference Report, however, Congress made it clear that it did not want this amendment to prohibit certain items that provide helpful benefits to Medicare patients, such as the provision of local transportation.
For many years, there were questions as to how this provision would be interpreted. The OIG initially published guidance that was very restrictive and suggested that any benefit with a value in excess of $10 could be a potential problem. However, in 2002, the OIG requested comments from the public, suggesting that the provision of transportation to Medicare beneficiaries should not be so restrictive, when provided in the appropriate setting. The OIG stated that it may publish further guidance to provide more flexibility in this area.
That guidance came in the form of a series of Advisory Opinions in the which the OIG approved a number of patient transportation program proposals that followed certain key criteria. Critical among them was that the providers did not actively promote the provision of transportation, thereby limiting the “inducement” component and, further, that the transportation services were not offered beyond the provider’s normal patient catchment area. In addition, the programs had to assure that the Medicare program would not bear any additional cost.
While the Advisory Opinions provided some helpful guidance, in October 2014 the OIG announced that it was once again soliciting comments in anticipation of publishing a safe harbor for the provision of free or discounted transportation. The October notice was not limited to the provision of transportation services, but instead covered a wide array of other topics for safe harbor consideration. Comments were due by early December, and the OIG is now reviewing the submissions and considering whether it will, in fact, provide safe harbor protection or whether it will continue to provide guidance through the Advisory Opinion process. While issuance of final regulations can take months or even years, because the OIG has now issued this request for a second time, there is a reasonable likelihood that a final rule will be issued in the near future.