Lawrence is the Chair for Obermayer’s Health Care Law Department and Election Law Practice Group. Lawrence’s Health Care Law legal experience includes the representation of Pennsylvania County governments in Behavioral Health Managed...Read More by Author
OIG Issues Advisory Opinion No. 15-12: Free Home Health Provider Visits Do Not Violate Anti-Kickback Statute
The Department of Health and Human Services Office of Inspector General (“OIG”) recently issued a new advisory opinion finding that free introductory visits (the “Introductory Visits”) for patients offered by a home health care provider (the “Requestor”) would not violate the Anti-Kickback Statute (“AKS”) or the Civil Monetary Penalties Law (“CMP”). The main issue addressed by the OIG is whether the free Introductory Visits offered by the Requestor constitute prohibited remuneration (broadly defined as anything of value) to patients under the AKS and/or the CMP.
Briefly, the AKS prohibits the knowing and willful offer, payment, solicitation, or receipt of any remuneration to induce or reward referrals of items or services reimbursable by a federal health care program. The CMP is implicated if remuneration is offered or transferred to a Medicare or state health care program beneficiary that is likely to influence the beneficiary’s selection of a particular provider or supplier of any item or service for which payment is made in whole or in part by Medicare or a state health care program.
The arrangement is structured as follows:
- The Requestor, a for-profit entity, provides home health services to patients. Some patients participate in Medicare, Medicaid, and other federal health care programs.
- The hospital discharge planner or case manager provides the patient with a list of home health service providers, and the patient selects a provider.
- If the patient selects the Requestor, one of the Requestor’s employees (the “Liaison”) contacts the patient to offer an introductory visit, which can be in person, by phone, or by email.
- During the Introductory Visit, the Liaison provides an overview of the home health experience, gives the patient written materials that list the contact information for some of the Requestor’s administrative and clinical employees, and shares pictures of the Requestor’s care team who will furnish the home health services.
The OIG determined that the arrangement does not violate the AKS or the CMP. Specifically, the OIG found that the Introductory Visits do not provide any actual or expected economic benefit to patients, and therefore do not constitute remuneration for the following reasons:
- During the Introductory Visits, the patients receive only information about the Requestor’s employee, including photographs of patients care team members and an overview of the home health experience.
- The primary purpose of the Introductory Visits is to facilitate patients’ transitions to home health services in an effort to increase compliance with their post-acute treatment plans.
- The Liaison does not provide any federally reimbursable diagnostic or therapeutic services during the Introductory Visits.
- The Introductory Visits provide a means to help ensure patients’ personal safety by familiarizing them with members of the care team who will later come into their homes.
- The Introductory Visits only have some intrinsic value to patients and involve the simple provision of information. The visits or assessments are not reimbursable and they are not more than nominal value to patients.
- Patients have already selected Requestor as their home health provider when the Liaison contacts them.
- The Introductory Visits are a logical and reasonable first step in the care relationships that have been established.
The Health Law Gurus™ will continue to follow the release of OIG Advisory Opinions. To read a copy of Advisory Opinion No. 15-12, click here.