New safe harbors excludes hospital-based facilities

The safe harbor proposed by the Department of Health and Human Services’ (HHS) Office of Inspector General (OIG) last week to allow independent dialysis facilities to pay the Medicare Part B and Medigap premiums of financially needy end-stage renal disease beneficiaries offers no relief to hospital-based dialysis facilities.

The proposed safe harbor wouldn’t apply to any hospital-based dialysis center or independent center owned by hospitals, doctors or other provider that is paid on a fee-for-service basis. "I don't think many facilities will meet that criteria," says a source close to the process.

In addition, the premium payment must not be advertised, the facility must not routinely make payments for such policies, and it must make a good faith determination that the individual is financially needy.

The OIG has issued many kickback safe harbors but this marks the first proposed safe harbor to the OIG's CMP authorities.

There have also been three advisory opinions related to this issue (97-1, 97-2 and 98- 17). The proposed safe harbor was published in the Federal Register May 2. To see the safe harbor, go to