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Free Introductory Patient Visits For Home Health Providers May Not Be A Kickback

What are OIG Advisory Opinions?

The Federal anti-kickback statute effects business relationships in the health care, pharmaceutical, and medical device industries.  Since the anti-kickback statute is so broad, the statute permits entities to seek advisory opinions from the Office of Inspector General (‘OIG’) for the Department of Health and Human Services (‘HHS’).  Each OIG advisory opinion is an analysis of the requestor’s specific factual circumstances. The OIG applies the requestor’s specific facts to the anti-kickback statute and forms a legal opinion as to whether or not the facts violate anti-kickback statute.

The OIG’s Advisory Opinion re Free Introductory Visits by Home Health Care Providers

The OIG issued an advisory opinion on August 6, 2015, posted August 13, 2015. It states that a home health provider’s policy to offer free introductory visits to patients who have entered into an arrangement with the home health care provider, is not a kickback under the anti-kickback statute.[1]  According to the OIG, a for-profit entity that provides home health services to patients who participate in Medicare, Medicaid, or other Federal health care programs, may offer an introductory visit. The entity may offer the free visit if the visit is to facilitate the patient’s transition to home health services and increase compliance with the post-acute treatment plan.[2]  The introductory visit may take place in a hospital, clinic, physician’s office, or in the patient’s home. [3]

It appears that the anti-kickback statute does not apply, if where the liaison from the home health care provider’s liaison does not perform any diagnostic or therapeutic service reimbursed by Federal health care programs during the introductory visit or does not leave any other items or materials with the patient.

What is a Kickback?

According to the anti-kickback statute, it is a crime to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce or reward referrals of items of services reimbursable by a Federal health care program.  The anti-kickback statute is violated when remuneration is paid to purposefully induce or reward referrals for items or services payable by a Federal health care program.  A violation of anti-kickback statute is a felony punishable by a maximum fine of $25,000 and/or a maximum of five years in prison. [4]

Section 1128A(a)(5) of the Act allows civil monetary penalties against any person who offers or transfers remuneration to the beneficiary of a Medicare or State health care program (including Medicaid) beneficiary, when the benefactor knowns or should know this 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). [5]

The OIG concluded that in this particular circumstance that neither the anti-kickback statute nor the civil monetary penalties were implicated where there was no remuneration offered or transferred to a Medicare or State health care program beneficiary.  [6]  The OIG stated that the introductory visits did not provide any actual or expected economic benefit to the patients, so they did not constitute remuneration.  [Id.]  The statutes were not triggered, because the primary purpose of the visits was to facilitate the transition to home health services by familiarizing the patients with the members of the care team.  [Id.]  The introductory visits were only triggered after the patients had already selected the home health provider for services.

It is important to remember that this advisory opinion was issued only to the requestor of this opinion. and has no application and does not apply to other entities.  It cannot be relied upon by any other individuals or entities.  It is essential for home health care providers to understand the legal implications of programs which they implement to increase patient satisfaction and distinguish themselves from their competition. If you are considering starting a new program or you have an existing program that you believe may violate the anti-kickback statute, it is important that you speak with an attorney who is well-versed in the False Claims Act, Stark Law, and the Anti-Kickback Statute.  For over 30 years Chapman Law Group has assisted health care professionals with the development of their businesses and the audit of their practices.  We believe the men and women dedicated to providing health care deserve an exception defense when their integrity and actions are called into question.

[1] OIG Advisory Opinion No. 15-12
[2] Id. at p. 2.
[3] Id. at N.1.
[4] Id. at p. 3.
[5] Id. at p. 4.
[6] Id. at pp. 4-6