Revisions to the anti-kickback statute and civil monetary penalties will affect how hospitals offer transportation and discounts to patients. The changes provide safe harbor when the hospital meets certain conditions.

  • Transportation can be provided for the purpose of improving access to care.
  • The revisions should free some hospitals to provide more help to the needy.
  • The government clarifies how discounts and free services can be provided without violating remuneration prohibitions.

The federal government has revised the anti-kickback statute (AKS) safe harbors and also some provisions of the civil monetary penalties (CMP) law in ways that will be significant to some healthcare providers.

The changes make clear that hospitals and other providers can provide transportation to patients under certain conditions without the HHS OIG considering it an effort to get patients from drivers or a transportation service receiving payment for the volume of patients transported. The CMP law was revised to clarify the meaning of “remuneration,” which can trigger the law.

The new and revised safe harbors were required as part of the Affordable Care Act, aimed at making healthcare delivery more efficient and consistent, says James B. Riley, Jr., JD, partner with the law firm of McGuireWoods in Chicago. The changes have been expected for a long time and healthcare providers can finally benefit, he says. Revisions to the transportation safe harbor were proposed in 2014, but just now made official.

“The concept of providing transportation at nominal or no cost to certain eligible patients was not something new to the OIG. Going back as far as 2009, the OIG had issued a number of advisory opinions on the issue, saying the provider could provide transportation for patients in a certain geographic area,” Riley says. “The advisory opinions determined there was a limited risk of fraud and abuse under certain conditions, so the safe harbor incorporates those conditions that leaves the OIG confident there is no risk of kickbacks or other fraud.”

The conditions prohibit marketing or attempts to pass the cost on to the federal government in any way, Riley says. Revisions to the CMP law include similar conditions under which a healthcare entity can provide goods and services without it being considered improper remuneration. (See the story in this issue for details on the safe harbors.)

“The revisions are aimed at hospitals and other providers who were concerned about their efforts to help patients who had difficulty accessing medical care because of their transportation needs or because of their financial limitations,” Riley says. “These changes are being received very well in the provider community.”

The changes should alleviate some concerns that efforts to help needy patients could inadvertently land a provider in hot water with the federal government, notes Jake A. Cilek, JD, also an attorney with McGuireWoods in Chicago. OIG had laid out a clear path for how to provide transportation and services without running afoul of the AKS or incurring a monetary penalty.

“In terms of compliance, this should give providers some certainty to hospitals on how they would provide transportation services,” Riley adds. “If they have been limited in that regard because they were awaiting OIG’s final decision on some of the particulars, this should give them the go ahead. The conditions that OIG specified are not such that they would be problematic to a hospital that in good faith wants to assist patients with getting access to care.”