Can Your ASC Provide Free Transportation to Its Patients?

BUSINESS MATTERSCan Your ASC ProvideFree Transportationto Its Patients?Many ambulato~y s~gical centers (ASCs) andphysicians would like to provide their patientswith an easy way to travel to and from theirfacilities for medical;procedures. This soundslike it would be a nice gesture for the patient,but providers should be careful, 1$. offering freetransportation to patienu.or their family memberSis fraught with regulatory peril. Alihough th.eUnited States Department of Health andHuman Strvlc~s· Office of Inspector G~eral(OIG) bas provided guidance to several typesof bealthc~re facilities regarding the pro"!'isionby facilities of free uansportation to patients,the OIG has still not inned any guidelinespertaining to this issue to ASCs. In this regard,ASCs must carefully consider whether providingtransportation a.t no cost to patients would pusunder the law.Brief Summary of OIG GuidanceOn November 17,2000, the OIG issued a favorableadvisory opinion to a hospital that would providefree transportation s.ervices to certain patients.who were referred to the bo!pital for extendedcourses of treatment.In August 2002, the OIG issued a SpecialAdvisory Bulletin regarding offering girt. andother inducements to beneficiaries, whereinthe OIG stated that it was cons.iderlng tbepossibility of a regulatory "safe harbor· exceptionunder the CMP statute fot complimentarylocal transportation offered to beneficiariesresiding in the provider's primary service area.Later that -yeilr. the OIG solicited public commentson the possible developme.n~ of au exceptionunder tbe CMP statute for complimentarylocal transportation greater than nominalvalue.On December 9, 2002, the OIG U.sued a lenerstating that free local traQ4portation providedby a hospital that costs no more than $10.00~r trip and $50.00 per patient in the aggregateon an annual basis does not violate the CMPstatute.On March 6, 2009, tbe OIG issued a favorableadvisory opinion to a skilled nursing facilityproposing to provide free local tr~Sl\Ottatlonto friends and families of its residents. Similarto its most recent advbory opinion, in concludingthat the a.rrangement would not constitutegrouncb for the imposition of civil monetarypenalties under the CMP statute or administrative&anctions under the AKS_, the OIG cited .anumber of factors. These factors Includedthat:12 Heollh Advoa>te USA WINTER 2012healthodvO(;QfeiiS

u Providing free transportation to patients or theirfamily members can be fraught with regulatory peril"• The services are not provided to targetedpopulations offed.eral ht:altbc:art: programbe-neficiaries;• The type of triLilsportation was reasonable;• The semees would only be offered locally;• Advertising would only be done loully;• Public transportation was limited; and• Tile cost ·of the transportation would not beclaimed on any cost report or claim.Most recently, on March 17.2011, th~ ·omissued a favorable advisory opinion to a non-profit,tax-exempt hospitlll to provide me transportationto patients un~tble to transport themselves fromphysician offices located on, or coptiguous to,the hospittl's campus to the hospital fo.r furthertreatment. The hospital represented in it& requmfor an advisory opinion that these patientswould require further evaluation and treatment,including admission to the ho•pitai, and wouldbe unable to transport themselves.The OIG cited several factori in determiningthat the anangement would not tubject thehospital to administrative sanctions under theCMP statute or the AKS:• The selection of patieptJ eligible for thetransportation would not be limited to targetedfederal health care program brneficiaries, butdetermined 1>ased on ~form standards;• The transportation was reasonable and not alllXW'y or specialized vehicle;• Transportation was only offered locally;• The fn:e transportation would not be ma.rketedor advertiud other than to inform the phy.iciaruthe transportation is available; and• Public transportation ·and parking on thehospital's campus wu limited.The cost of the transportation would not beclaimed on any cost report or claim, or otherwiushifted to any federal health care program.How Does This Affect ASCs?The most recent advisory opinion does notalter the general rule that free transportationin exuss of nominal value potentially implicatesthe CM.P statute andAKS. To date, the OIGhas not adopted an eueption to the law orprovided my specific guidance for ASCs.Therefore, free transportation provided byASCs must be carefully evaluated to determinecomp.liance with the law as well u the factorsenumerated by the OIG. Additionally, statelaw may apply to the offering of free transportationand pr9viders, and facilities should review theapplicable law in theiz states befoxe providingcornplimeotary transportation. Facilities andpra.:titioners are urged to consult their healthc:areattorneys concerning their own situations andany specific legal questions that they may haver~ding the benefits and risks of suth a program.Allr;hoei .F. ~~~ llr s •""reholdfH' ""d ohtllr of tho heolthcere ••d corp""'"' IM st WHentz, Ooldmsn & Spitz.,., PA,Woodb~. New Jaraay. Alyaon 61. L..,.,. ••d GJ.nn P. l'ri.,.. ar. Hsodat.oln Ill:• ""lllthcaro •nd aorporotoo d