MDNews - Central New York

SECTION 1128B¢B£ OF THE SOCIAL SECURITY ACT ¢THE "ANTI¡KICKBACK STATUTE"£ PROVIDES CRIMINAL PENALTIES FOR THOSE WHO OFFER, PAY, SOLICIT OR RECEIVE REMUNERATION OF ANY KIND IN ORDER TO INDUCE OR REWARD THE REFERRAL OF BUSINESS REIMBURSABLE UNDER MEDICARE. BECAUSE OF THE ANTI¡KICKBACK STATUTE'S BROAD REACH, CONGRESS ENACTED SAFE¡ HARBOR PROVISIONS TO PROTECT INNOCUOUS ARRANGEMENTS THAT WOULD OTHERWISE RESULT IN PENALTIES. EFFECTIVE DEC. 7, 2016, the OIG created a new safe harbor protecting free or discounted transportation of patients to providers and back to their home if the transportation is: + Local. Patients picked up from an urban area (defined according to standards set by the Executive O„ce of Management and Budget) must be within 25 miles of the provider. For patients from rural areas (any location not considered urban), that radius is doubled. + Provided by an eligible entity. The safe harbor excludes from its protection transportation provided by family or enti- ties that primarily supply healthcare items (for example, pharmacies). + Provided in accordance with an availability policy. The provider must follow a consistent policy in determining when transportation is made available to a patient. Availability may be determined through a number of factors including limitations by distance, by need or for certain services, so long as availability is not determined in a manner related to past or anticipated volume or value of business. + O•ered to established patients. The safe harbor is not to be used as a recruiting tool. Therefore, the transportation of new patients is not protected. However, once patients have selected, initiated contact and scheduled an appointment with a provider, they are considered established patients and are covered, regardless of whether they have previously received services from the provider. + Offered for medically necessary purposes. The transportation must be used to obtain necessary medical items or services. Therefore, only the patient may be transported. + Delivered through permissible modes of transportation. The safe harbor excludes from its protection air, luxury and ambulance-level transportation. Additionally, drivers or those arranging the transportation cannot be paid on a per- beneficiary-transported basis. However, individual patients can be reimbursed if they have a receipt to show they incurred the cost of the transportation. For example, taxi vouchers, bus fare or cash reimburse- ments are permissible. + Not marketed. The transportation assistance service cannot be publicly advertised or marketed to patients or others who are potential referral sources. Additionally, no marketing of healthcare items or services can occur during the course of the transportation. + Not resulting in cost-shifting. The eligible entity must bear the costs of the transportation services, and not claim the cost as a bad debt or otherwise shift the burden to Medicare, a State health care program, other payers or individuals. SHUTTLE VARIANT The safe harbor includes an additional pro- vision for bus or shuttle type transportation that contains fewer requirements. Shuttle transportation must be provided on a set route and schedule, but has no limitation, besides the local distance requirement, on where or when the shuttle may make its stops so long as they are routine. If provided as a shuttle, the transportation service does not need to meet the established patient or medical purpose requirements—thus allowing family to accompany patients. Furthermore, while the marketing restric- tions still apply to shuttle services, the schedule and stop locations may be posted. PRACTICAL ADVICE By using the shuttle variant, a provider is allowed to make the public aware of its service by posting the service schedule. Otherwise, the only way for a provider to make its patients aware of the transporta- tion service is by asking the patient, after they have made an appointment, if they have suitable transportation for their visit. Furthermore, the urban/rural dis- tinction only applies to the patient's home address. Therefore, even a provider with o„ces in the heart of a city can transport a patient 50 miles if they are bringing them in from a rural area. The shuttle service measures the dis- tance directly, or "as the crow flies," from the location of medica l service to each and every stop, such that the shuttle can have stops at any place within a 25- to 50-mile radius from the service location. If there are multiple service locations for a single shuttle, however, each one must be within the local distance to each stop. Therefore, it is best to use one shuttle per service location. A lternatively, the shuttle service can be used to ferry patients between two a„liated service locations, provided they are within the local distance from each other. Kyle Sutli is an Associate at CCBLaw, a boutique law firm focused on providing counsel to physicians and other healthcare profession- als. He can be reached at 315-477-6261 or ksutli@ccblaw.com. ■ New Transportation Safe Harbor under the Anti-Kickback Statute BY KYLE SUTLIFF 2 2❱❱❱❱❱ L E G A L E A S E

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