The Office of Inspector General (OIG) recently issued Advisory Opinion 15-13, addressing whether an integrated health system (Health System) was at risk for administrative sanctions under the federal anti-kickback statute or civil monetary penalty law for offering free shuttle services to patients. The OIG concluded that the proposed transportation arrangement presents minimal risk of fraud and abuse and warranted no cause for administrative sanctions. Complimentary local transportation has been addressed in several prior OIG advisory opinions, and a safe harbor to protect such programs from anti-kickback statute liability has been published in proposed form.
The Health System, which serves a rural population, comprises a 505-bed medical center, two community hospitals, an ambulatory surgical center, and a clinic that employs more than 1,000 physicians. According to the Health System, the dearth of available transportation options in the communities served by its facilities creates a barrier for residents in accessing healthcare services. Under the proposal, the Health System would offer a free van shuttle service without regard to patient insurance status or ability to pay for medical services. No medical treatment would be available on the shuttles, and no marketing of healthcare items or services would occur during the transportation. The shuttles would not be advertised to the general public or on the Health System website, and would be communicated only to current patients. The availability of the shuttle service to patients would have no relationship to any federal healthcare program business, and the Health System would bear the full cost of the program.
In concluding that the proposed shuttle service presents minimal risk of fraud and abuse, the OIG cited the following reasons:
- Shuttle services would not be conditioned upon past or anticipated federal healthcare program business for the Health System, patients’ use of specific items or services from the Health System, or patients’ insurance status or ability to pay. This proposal is distinguishable from “suspect arrangements” where transportation is selectively offered to patients based on the above criteria.
- Shuttle services would not include air, luxury, or ambulance-level transportation which is more valuable than shuttle services.
- The shuttle drivers would not be paid on a per-patient basis.
- The shuttle service would be offered only locally and is therefore not intended to recruit beneficiaries beyond the Health System’s primary service area.
- The Health System would not market or advertise the shuttle services to the general public, and therefore, the service could not be interpreted as an inducement for referrals.
- The Health System would bear the costs of the shuttle services.
- The shuttle service would be unlikely to subsidize the practices of private physicians located in the Health System communities. Although private physicians would incidentally benefit from the shuttle service, the OIG believes that there is no motive to induce referrals from these private physicians to Health System facilities.
- The Health System certified that there is a genuine lack of local public transportation, and no public transportation is available to some facilities.
These factors mirror those set forth in prior OIG advisory opinions and the proposed anti-kickback statute safe harbor, and provide guidelines for healthcare providers seeking to establish compliant transportation programs.