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Free Transportation for Potential Residents: Could This Create A Problem? | |
WHAT IF a skilled nursing facility wanted to provide transportation for potential residents from local hospitals and / or physicians' offices to the facility at no charge?
The federal anti-kickback statute makes it a criminal offense knowingly and willfully to offer, pay, solicit, or receive any remuneration to induce or reward referrals of items or services reimbursable by a Federal health care program. Where remuneration is paid purposefully to induce or reward referrals of items or services payable by a Federal health care program, the anti-kickback statute is violated. The statute ascribes criminal liability to parties on both sides of an impermissible "kickback" transaction. For purposes of the anti-kickback statute, "remuneration" includes the transfer of anything of value, directly or indirectly, overtly or covertly, in cash or in kind.
The statute has been interpreted to cover any arrangement where one purpose of the remuneration was to obtain money for the referral of services or to induce further referrals. Violation of the statute constitutes a felony punishable by a maximum fine of $25,000, imprisonment up to five years, or both. Conviction will also lead to automatic exclusion from Federal health care programs, including Medicare and Medicaid. Civil monetary penalties may also be imposed against any person who gives something of value to a Medicare or state health care program (including Medicaid) beneficiary that the benefactor knows or should know is likely to influence the beneficiary's selection of a particular provider, practitioner, or supplier of any item or service for which payment may be made, in whole or in part, by Medicare or a state health care program (including Medicaid). "Remuneration" is defined as including "transfers of items or services for free or for other than fair market value." The Office of the Inspector General has taken the position that "incentives that are only nominal in value are not prohibited by the statute," and has interpreted "nominal value to be no more than $10 per item, or $50 in the aggregate on an annual basis."
This "WHAT IF" scenario potentially implicates the anti-kickback statute with consequent civil monetary penalties, prohibiting inducements to Medicare and state health care program beneficiaries, including Medicaid, because the transportation could be offered to induce Federal health care program beneficiaries to obtain Federally-payable items or services from the skilled nursing facility, especially if the value of the transportation could exceed $10 per transport or $50 on an annual basis, and therefore could be of more than nominal value. However, the skilled nursing facility might reasonably minimize, but not eliminate, the risk of violations if:
- the facility does not selectively limit eligibility to targeted populations of Federal health care program beneficiaries. Patient eligibility would need to be uniformly determined by the hospitals and physicians in accordance with the facility's written policy setting forth the operational requirements for this type of transportation arrangement;
- the type of transportation must be reasonable. Unreasonable transportation would involve expensive transportation such as limousines. The facility would, as a matter of caution, want the driver to be a certified EMT;
- the distance should be minimized (e.g.; one-fourth of a mile);
- the facility should not advertise this service to the public;
- the facility should ensure that there are limitations on existing local public transportation;
- the cost of the transportation should not be claimed, directly or indirectly, on any Federal health care program cost report or claim, nor otherwise be shifted to any Federal health care program
There are no guarantees that this type of service offered by the facility would avoid sanctions in connection with the anti-kickback statute; however, there appears to be enough leeway, if structured properly and under the right circumstances, to minimize risk if this facility wanted to satisfy a legitimate community need. |
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Crabby Old Man
By: David Griffith, Ft. Worth, Texas | |
Crabby Old Man
What do you see nurses? . . . . . What do you see?
What are you thinking . . . . . when you're looking at me?
A crabby old man . . . . . not very wise,
Uncertain of habit . . . . . with faraway eyes?
Who dribbles his food . . . . . and makes no reply.
When you say in a loud voice . . . . . 'I do wish you'd try!'
Who seems not to notice . . . . . the things that you do.
And forever is losing . . . . . A sock or shoe?
Who, resisting or not . . . . . lets you do as you will,
With bathing and feeding . . . . . The long day to fill?
Is that what you're thinking? . . . . . Is that what you see?
Then open your eyes, nurse . . . . . you're not looking at me.
I'll tell you who I am. . . . . . As I sit here so still,
As I do at your bidding, . . . . . as I eat at your will.
I'm a small child of Ten . . . . . with a father and mother,
Brothers and sisters . . . . . who love one another.
A young boy of Sixteen . . . . with wings on his feet.
Dreaming that soon now . . . . . a lover he'll meet.
A groom soon at Twenty . . . . . my heart gives a leap.
Remembering, the vows . . . . . that I promised to keep.
At Twenty-Five, now . . . . . I have young of my own.
Who need me to guide . . . . . And a secure happy home.
A man of Thirty . . . . . My young now grown fast,
Bound to each other . . . . . With ties that should last.
At Forty, my young sons . . . . . have grown and are gone,
But my woman's beside me . . . . . to see I don't mourn.
At Fifty, once more, babies play 'round my knee,
Again, we know children . . . . . My loved one and me.
Dark days are upon me . . . . . my wife is now dead.
I look at the future . . . . . shudder with dread.
For my young are all rearing . . . . . young of their own.
And I think of the years . . . . . and the love that I've known.
I'm now an old man . . . . . and nature is cruel.
'Tis jest to make old age . . . . . look like a fool.
The body, it crumbles . . . . . grace and vigor, depart.
There is now a stone . . . . where I once had a heart.
But inside this old carcass . . . . . a young guy still dwells,
And now and again . . . . . my battered heart swells.
I remember the joys . . . . . I remember the pain.
And I'm loving and living . . . . . life over again.
I think of the years, all too few . . . . . gone too fast.
And accept the stark fact . . . . that nothing can last.
So open your eyes, people . . . . . open and see.
Not a crabby old man . . . Look closer . . . see ME!!
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| Law Offices Of David S. Barmak, LLC | |
David Barmak established his health care law firm in 1984 to deliver legal services, both in transactions and litigation, to organizations and professional practitioners in the health care field. We call this approach "Enterprise-Wide Risk Management" because it includes three important facets:
- Counsel and advisement on all aspects of legal risk, from setting up the entity to corporate governance and compliance;
- Protection of your practice or business through litigation prosecution or defense in the Courts; as well as regulatory compliance and licensure issues before government agencies; and
- Operations improvement through the implementation of enterprise-wise onsite audits, programs and training seminars in the areas of, but not limited to, Fraud and Abuse, HIPAA Privacy and Data Security, Employment, A/R Management, Emergency Preparedness, and Workplace Violence.David S. Barmak, Esq. received his JD from Cornell University and BA from Duke University. He is licensed to practice and serves clients in the States of New Jersey, New York, Connecticut and Pennsylvania.
He is the immediate past Chair of the Health & Hospital Law Section of the New Jersey State Bar Association. Before making your choice of attorney, you should give this matter careful thought. The selection of an attorney is an important decision. The recipient may, if the newsletter is inaccurate or misleading, report the same to the Committee on Attorney Advertising.
For more information, please contact us:
Telephone (609) 688-0055
Fax (609) 688-1199
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