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What Can Providers Give to Patients?

Providers, including marketers, are tempted to give patients and potential patients free items and services. While providers usually have good intentions, they must comply with applicable requirements. 

As Part 1 of this series indicates, there are two applicable federal statutes: the Anti-Kickback Statute (AKS) and the Civil Monetary Penalties Law (CMPL). Part 1 also makes it clear that there are a number of exceptions. If providers meet the requirements of applicable exceptions, they can give patients and potential patients free items and services that would otherwise violate applicable requirements. 

Part 2 describes an exception for items and services of nominal value with a retail value of no more than $15 per item or $75 in the aggregate per patient on an annual basis that may be given by providers to beneficiaries. Providers may not, however, give cash or cash equivalents.

Part 3 describes the circumstances under which providers may give free items and services to patients with demonstrated financial need.

Part 4 summarizes recent guidance from the Office of Inspector General (OIG) about giving incentives to promote vaccination against COVID-19.

Part 5 describes an exception for preventive items or services.

This article addresses an exception for free items or services to promote access to care.

The CMPL excludes items or services that improve beneficiaries’ ability to obtain items and services payable by the Medicare or Medicaid Programs and that pose a low risk of harm to both beneficiaries and the Programs because they are unlikely to:

  • Interfere with or skew clinical decision-making
  • Increase costs to federal health programs or beneficiaries through over utilization or inappropriate utilization
  • Raise issues of patient safety or concerns about quality of care

This exception does not apply to waivers of copayments, or to the provision of cash or cash equivalents.

In addition, the exception applies only to items or services that promote access to care covered by the Medicare or Medicaid Programs, i.e., items or services that improve particular beneficiaries’ ability to obtain items or services payable by the Medicare or Medicaid Programs. The exception does not apply to items or services that reward receipt of care or incentives for complying with treatment regimens. 

The OIG says, for example, that this exception includes giving patients the tools they need to remove socioeconomic, educational, geographic, mobility or other barriers to getting necessary care. Such barriers may include free child care, so that patients may attend educational programs or appointments for treatment; free local transportation or parking reimbursement for appointments; smart phone apps or low-cost fitness trackers; gift cards that promote access to care; educational materials and informational programs about disease states or treatments; and self-monitoring equipment, such as scales or blood pressure cuffs. The exception does not include movie tickets, for example, given to patients to reward them for attending educational sessions.

Providers should certainly utilize the exceptions described in this series of articles to provide maximum permissible assistance to patients
 

Clarification on Home Care in the “Choose Home Act”

Two weeks ago, HHAC posted a story about the "Choose Home Act" (see below for the call to action). Since that time, we have confirmed that in the legislation's current form, agencies would need to be Medicare certified to bill for personal care services, meaning they would have to be a home health agency.

HOWEVER, this is still a great opportunity for Medicare-certified agencies to work together with non-certified home care agencies to expand services and capture this potential market. Though we still don't know what billing reimbursement rates would look like for the Choose Home Act's various services, considering the staffing crisis already at hand, it is unlikely that home health agencies would be able to take on the new work by themselves. Instead, they may consider subcontracting personal care services to local home care (a.k.a. personal care) agencies, similar to the model which some home health agencies use for therapy services.

Contracting with home care agencies may be less expensive and troublesome than building a new department, and allow home health agencies to capture more of the Choose Home patient population. In any case, the legislation would expand services into the home and pave the way towards bringing individuals home sooner. 

GO HERE to tell Congress to support Choose Home Care Act of 2021!

Important details

Bill: Choose Home Care Act of 2021 (S. 2562)

Senate Sponsors: Debbie Stabenow (D-MI), Todd Young (R-IN), Maggie Hassan (D-NH), Susan Collins (R-ME), Bob Casey (D-PA), James Lankford (R-OK), Ben Cardin (D-MD) Cynthia Lummis (R-WY)

Additional Supporting Organizations: Partnership for Quality Home Health Care, AARP, LeadingAge, Allies for Independence, National Council on Aging, Moving Health Home, Council of State Home Care and Hospice Associations, Forum of State Associations.

Additional Resources:

  • To view the PQHH/NAHC press release, CLICK HERE.
  • To send an email to your Senators urging support for the bill and to submit a letter to the editor to your local paper about Choose Home, CLICK HERE.
  • To access suggested social media posts and graphics, CLICK HERE.
 

Council of State Home Care & Hospice Association Annual Meeting Resources 

From July 25th - July 28th, HHAC attended the in-person Council of State Home Care & Hospice Associations annual conference and have subsequently obtained a copy of the slides for the most significant presentations to share with our members. Presentations included lots of great information on national news, trends, outlooks, and pending legislation, including:

  • FY2022 Hospice – Now Final- Rule Highlights
  • FY2022 Home Health Proposed Rule Highlights
  • First Year PDGM Data
  • Median Profit Margins for Home Health and Hospice
  • Value-Based-Purchasing Insights

Members Click Here for access to the following presentations: 

  • Medicare Update by SimiTree
  • National and State Update: Hot Topics and We Honor Veterans Program by NAHC & NHPCO
  • Legislative Outlook by Liberty Partners Group
  • Industry Perspective by BKD

 
 

Vaccination Rates Improving, Particularly Among the Seniors, but Herd Immunity is a Moving Target

As reported by Kaiser Healthcare News, on August 3rd, the United States hit another milestone with 90% of people 65 and older being at least partially vaccinated against the disease. That’s more than 49 million seniors vaccinated. Overall, 70% of adults have been inoculated, at least partly, and nearly 68% of people over 12.

Despite improved vaccination rates, another article by Medscape Medical News, reported that, “Because the Delta variant of SARS-CoV-2 spreads more easily than the original virus, the proportion of the population that needs to be vaccinated to reach herd immunity could be upwards of 80% or more, experts say. The original SARS-CoV-2 virus required an estimated 67% of the population to be vaccinated to achieve herd immunity. For Delta, those threshold estimates go well over 80% and may be approaching 90%.”
 

Denver Mandates COVID-19 Vaccination for Healthcare Workers, Educators & Others

ORDER WHEREAS, on March 12, 2020, the Mayor of the City and County of Denver declared a state of local disaster emergency pursuant to C.R.S. § 24-33.5-701, et seq., due to the risk of spread of the COVID-19 virus.

WHEREAS, according to the federal Centers for Disease Control (“CDC”), COVID-19 continues to pose a serious risk, especially to individuals who are not fully vaccinated, and certain safety measures remain necessary to protect against COVID-19 cases and deaths.

WHEREAS, vaccination is the most effective way to prevent transmission and limit COVID-19 hospitalizations and deaths.

WHEREAS, this Order is based upon evidence of continued community transmission of COVID19, in particular the rise of Delta variant cases, within the City and County of Denver.

WHEREAS, the primary intent of this Order is to continue to protect the community from COVID19 and to increase vaccination rates to reduce transmission of COVID-19 long-term, so that the community is safer and the COVID-19 pandemic can come to an end. All provisions of this Order shall be interpreted to effectuate this intent.

Due to the recent surge of Delta variant COVID-19 cases and epidemiological evidence that shows low rates of vaccination fuel increased rates of community transmission, this Order hereby requires personnel of the following entities, or types of entities, to be fully vaccinated by September 30, 2021:

  • the City and County of Denver;
  • care facilities;
  • hospitals;
  • clinical settings;
  • limited healthcare settings;
  • shelters for people experiencing homelessness, including day and overnight shelters;
  • correctional facilities, including jails, detention centers and community corrections sites and residences;
  • schools, including post-secondary and higher education;
  • childcare centers and services;
  • any entity providing home care to patients; and
  • any entity providing first responder services.

This Order further requires the entities or types of entities listed above to ensure that all personnel are fully vaccinated by September 30, 2021, and to ensure that all personnel hired thereafter are vaccinated. Until a person’s vaccination status is ascertained, that person must be treated as not fully vaccinated. Personnel who decline to provide vaccination status must also be treated as unvaccinated. The entities, or types of entities listed above, with the exception of hospitals, must complete their initial ascertainment of full vaccination status for all personnel by September 30, 2021 and must maintain corresponding records that are available to the health authority upon request. Hospitals may meet their ascertainment of full vaccination status in conjunction with meeting their flu and other vaccination requirements.

“Personnel” means employees of the entities or types of entities listed above, as well as individuals who provide services onsite and/or in the field to or on behalf of the entities or types of entities listed above on a contractual or volunteer basis. Entities and individuals who provide onsite services to or on behalf of the Denver International Airport on a contractual basis shall not be considered “personnel” for purposes of this Order. Employers shall provide reasonable accommodations for any personnel who have medical or religious exemptions from the COVID19 vaccination.

“Employees” of the City and County of Denver shall mean all persons in the employ of the City and County of Denver, including on-call employees; interns (paid or unpaid); volunteers; appointed officers, board members and commissioners; elected officials; at-will appointees of elected officials and the Department of Aviation; hearing officers appointed by the Career Service Board; employees of the Denver County Court including judges and magistrates; and employees of the Independent Monitor’s Office, City Council, Library Commission, the Denver Public Library, and the Civil Service Commission.

“Care facilities” means nursing facilities, assisted living residences, intermediate care facilities and group homes.

“Childcare centers and services” does not include foster care.

“Clinical settings” means ambulance service centers, urgent care centers, non-ambulatory surgical structures, clinics, dentist offices, doctor offices, and non-urgent care medical structures.

“Fully vaccinated” means two weeks after a person’s second dose in a two-dose series and two weeks after a single-dose vaccine.

“Limited healthcare settings” means those locations where healthcare services are provided including but not limited to acupuncture, audiology services, services by hearing aid providers, chiropractic care, massage therapy, naturopathic care, occupational therapy services, optometry, ophthalmology, physical therapy, and speech language pathology services.

This Order shall be effective immediately and shall remain in effect until rescinded, superseded, or amended in writing by the Executive Director of DDPHE.

Issued by: Robert M. McDonald

Public Health Administrator, City & County of Denver Executive Director, Denver Dept of Public Health & Environment
 
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