Health Law Daily With proper safeguards, caregiver center established by hospital does not violate anti-kickback law
Tuesday, June 26, 2018

With proper safeguards, caregiver center established by hospital does not violate anti-kickback law

By Rebecca Mayo, J.D.

In an advisory opinion, the HHS Office of Inspector general (OIG) determined that a caregiver center, established by a hospital, that provided or arranged for free or reduced-cost support services to caregivers would not violate the anti-kickback statute. Based on the specific facts provided to the OIG, it found that sufficient safeguards were in place to reduce the risk that the benefits received would influence caregivers to choose the hospital for federally reimbursable items or services in the future (OIG Advisory Opinion, No. 18-05, June 18, 2018).

The center. The hospital established the center as a department of the medical center to provide or arranged for certain support services for individuals in the community who care for adults with chronic medical conditions. The center’s staff are unpaid volunteers and the operating budget is funded by a nonprofit corporation that obtains its funding from private donations. The center provides free services such as a resource library, educational sessions, support groups, equipment lending, and more. The center also offers, or partners with community providers to offer, fee-based services such as stress reduction workshops, low-cost ride-share programs, and additional respite care resources. Caregivers who need financial assistance for fee-based services are given information about local resources available or an application for financial assistance.

Opinion. The items or services offered under the arrangement do not fall under either exception to the AKS because the remuneration is not reasonably connected to the individual’s medical care and does not improve the beneficiary’s ability to obtain federally reimbursable items or services. However, in an exercise of discretion, the OIG decided it would not impose sanctions under the Beneficiary Inducements CMP for a number of reasons. The arrangement primarily benefits the caregivers rather than the care recipients, who are not necessarily in need of any particular health care provider, practitioner, or supplier. Additionally, the services provided have little, if any, tie to federally reimbursable services and the center does not recommend any particular service providers who provide medical services. Therefore, the risk that a caregiver would be influenced to choose the hospital for federally reimbursable services is low.

The center’s services are available to all caregivers regardless of whether caregivers or care recipients are federal health care program beneficiaries or whether they have or will seek federally reimbursable services from the hospital. The hospital does not actively market the arrangement and refrains from recommending hospital for any kind of item or service whether or not the item or service is reimbursable by a federal health care program. Finally, the center staff is primarily unpaid volunteers and the operating costs come from private donations, so there is unlikely any increase costs to federal health care programs.

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