• Elizabeth Hogue, Esq

Palliative Care Program Challenges

Anecdotally, many healthcare providers see great value in the provision of palliative care to patients who may benefit from such care. Although there are a number of definitions of palliative care, the National Hospice and Palliative Care Organization (NHPCO) defines palliative care as follows:

Palliative care is patient and family-centered care that optimizes quality of life by anticipating, preventing, and treating suffering. Palliative care throughout the continuum of illness involves addressing physical, intellectual, emotional, social, and spiritual needs and to facilitate patient autonomy, access to information and choice.

Despite varying definitions of palliative care, many practitioners understand that palliative care is generally provided to patients who have serious, long-term illnesses that may or may not be terminal.

A key problem with the provision of these services is that there may be no sources of payment for palliative care. Patients who may benefit from palliative care may, for example, be ineligible to receive services under the hospice benefit of the Medicare Program because they do not have a life expectancy of six months or less, if their diseases run their normal course. Likewise, patients who benefit from palliative care may not qualify for the home health benefit under the Medicare Program either. They may not be homebound, for example, or have skilled needs.

And yet, at least anecdotally, there is a substantial need for this type of care. Reports from staff members in emergency departments of hospitals are particularly compelling with regard to the on-going need for palliative care services.

In the absence of payment, providers’ ability to render palliative care services is limited by the federal anti-kickback statute. This statute generally prohibits providers from giving free services to patients that may induce them to receive services, such as hospice and home care, paid for by federal healthcare programs. The federal anti-kickback statute provides in relevant part as follows:

(1) Whoever knowingly and willfully solicits or receives any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind--

(A) in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under this subchapter, or

(B) in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under this subchapter,

shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five years, or both.

(2) Whoever knowingly and willfully offers or pays any remuneration (including kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person

(A) to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under this subchapter, or

(B) to purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under this subchapter,

shall be fined not more than $25,000 or imprisoned for not more than five years, or both...

Based on the above statute, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services, the primary enforcer of fraud and abuse prohibitions, announced that; effective on December 7, 2016; the limits on free items and services given to beneficiaries were increased. Specifically, according to the OIG, items and services of nominal value may be given to patients or potential patients if they have a retail value of no more than $15 per item or $75 in the aggregate per patient on an annual basis. The previous limits were $10 per item or $50 in the aggregate per patient on an annual basis.

Under section 1128A(a)(5) of the Social Security Act, persons who offer or transfer to Medicare and/or Medicaid beneficiaries any remuneration that they know or should know is likely to influence beneficiaries’ selection of particular providers or suppliers of items or services payable by the Medicare or Medicaid Programs may be liable for civil money penalties for up to $10,000 for each wrongful act. “Remuneration” includes waivers of copayments and deductibles, and transfers of items or services for free or for other than fair market value.

Consequently, the provision of free palliative services to palliative care patients is generally limited as described above. The OIG has, however, identified free services that may be provided even though they exceed the above limits. If applicable criteria are met, providers may, for example, provide free transportation to patients who participate in their palliative care programs. There are other exceptions that may also apply to palliative care programs.

There are limits on the free services that providers can give to patients in need of palliative care. Providers must carefully review the limits on free services when they develop models of palliative care.

Elizabeth E. Hogue, Esq.

Office: 877-871-4062

Fax: 877-871-9739

E-mail: ElizabethHogue@ElizabethHogue.net

Twitter: @HogueHomecare

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