Local Transportation Safe Harbor Allows Home Health Agencies to Transport Patients to Doctors and Pharmacies

Posted on Tuesday, February 21, 2017 2:40 PM

Home health agencies are now able to choose between offering patients free or discounted transportation to get medically neces¬sary items and services. This new service will not be a violation of the anti-kickback statue.

The local transportation safe harbor became effective January 7.

This safe harbor will help agencies ensure patients are getting needed medications and arriving at neces¬sary doctors’ appointments, says Attorney Elizabeth Pearson of Pearson & Bernard in Edgewood, Kentucky.

However, the new rule excludes air, luxury or ambulance-level transportation.

The rule, CMS says, reflects the evolution from fee-for-service medicine to value-based care.
Previously a violation of the anti-kickback statute involving this type of transportation service would have been punishable by fines of up to $25,000 and imprison¬ment for up to five years. Fines for violating the civil monetary penalties law vary; agencies also could have been subject to thousands of dollars in fines for violating the False Claims Act, Pearson says.

Although no prior rule made clear agencies could transport patients for free or reduced rates, some agencies have done so for years, says Attorney Robert Markette of Indianapolis-based Hall, Render, Killian, Heath & Lyman. In addition, they referred to a 2011 advisory opin¬ion from the HHS Office of Inspector General indicating they wouldn’t get into legal trouble for providing this service.

The safe harbor wasn’t intended to be “a huge mar¬keting hook to drive new business,” Markette says.

You’re not allowed to place details about this service on your website, nor are you allowed to create brochures or TV advertisements, Pearson says.

However, you can target existing patients who appear to need transportation and offer them rides, Markette says.

Another thing agencies aren’t allowed to do: The driver can’t market or advertise your agency’s services while the patient is being transported, Pearson says.

Although CMS discussed partially or fully excluding home health from the safe harbor, they decided to include home health. Some commenters contended that agencies are “a critical link for patients to get to necessary appointments — some of which could be to referral sources.”

“In addition, patients eligible for home health services may be particularly in need of transportation, which home health agencies may be in a unique position to provide,” CMS wrote.

However, CMS noted that home health agencies “have historically posed a heightened risk of program abuse.”

“The provision of transportation, in such an instance, would be considered as part of a scheme to submit false claims for unnecessary services.”

The following tips are important when dealing with the new rule:
• You’ll need to pay — not the govern¬ment
• Confirm that you have non-owned auto liability coverage
• Don’t only provide transportation for patients from your most common referral sources
• Don’t pay for transportation per patient
• There are limits on miles you can drive patients

For the full article, please see the February 20, 2017 Home Health Line Edition.

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