The Department of Health and Human Services’ Office of Inspector General (“OIG”) recently issued advisory opinion 12-17 providing a favorable opinion on a not-for-profit hospital-based hospice’s proposed “community services” program.
The Community Services Program
Under the proposed program, the hospice planned to provide non-skilled services for free, to patients who were terminally ill but who did not qualify for the hospice benefit, because they either did not want to renounce curative treatment or because they had more than six months to live if the disease ran its normal course. The services the agency proposed to offer included companionship, visitation, transportation, running errands, food preparation, respite and assistance with reading and writing. The hospice specifically stated that it would not offer these services to patients that resided in nursing facilities.
The hospice proposed to provide this service using only unpaid volunteers. It would not use hospice employees. The hospice proposed to employ a volunteer coordinator to oversee the volunteers and to coordinate services with the individuals receiving the services in the community. During the first year of the program, the expenses of the program would be met with funds from the hospital’s foundation. The expenses of the program would be kept separate from the hospice’s and hospital’s expenses generally and would not be reported on any cost reports. After the first year, if the hospital determined the program was meeting an unmet need in the community, it would continue to fund the program directly.
In its request for an opinion, the hospice recognized that it would likely receive referrals as a result of this program. In an effort to prevent that from being fatal to the request, the hospice stated that it would not actively market the program. It also stated that it would explain to referral sources the reason for the program and the “eligibility requirements” of the program. Patients receiving services through the program would also be told of the right to choose another provider should they need home health and hospice services in the future along with a list of other home health and hospice providers in the area.
Although the proposed arrangement involved the provision of free services to individuals who may require hospice services in the future and OIG recognized the provision of these free services could influence a beneficiary’s choice of providers, the OIG concluded that it would not subject the hospice to sanctions under the Civil Money Penalty statute or under the Anti-Kickback Statute. The OIG came to this conclusion, despite its belief the arrangement implicated both statutes, because it believed certain aspects of the program “adequately protected” the federal health care programs from fraud and abuse.
Before looking at the factors the OIG thought protected the federal health care programs, providers should note one issue. OIG again assessed the potential value of these services. The fact that the services were provided by volunteers and thus had a relatively low cost to provide did not resolve the matter. OIG noted that these services would, at a minimum, have intangible, psychological value to the patient. Beyond that value, the OIG noted for some patients the availability of these services would alleviate the need for the patient to pay for these services out of pocket. This would represent a significant tangible economic benefit. For these reasons, the OIG did not consider the minimal value exception to apply.
The first factor that OIG felt limited the potential for abuse in this arrangement was that the hospice/hospital would not market the availability of this program. It would only explain the availability/eligibility for this program to local hospital case managers and to others upon request. OIG also felt it important that the hospice would inform patients of their right to choose another provider and give them information about other providers in the area at the start of the free services. This gave the beneficiaries the option to exercise their freedom of choice, which OIG found to be a potential safeguard against abuse.
The second factor that OIG felt was important was that, because the costs of the volunteer program would not be included on the hospital or hospice’s cost report, the program would not result in increased costs to the federal health care programs.
Third, as it often does in opinion letters involving hospice, OIG found the nature of hospice care and the eligibility requirements acted as a limitation on overutilization of hospice services. OIG has repeatedly recognized that to elect hospice care, the patient has to choose to forego curative treatment and be diagnosed with six months or less to live. OIG has long been of the opinion that this results in a patient’s decision to elect hospice being based upon the patient’s comfort with foregoing curative treatment, not upon any inducements offered by providers. In this specific opinion letter, OIG again noted that the relatively low value of the inducement was not likely to overcome most patients’ aversion to foregoing curative care and accepting the fact of their terminal illness. This would act to prevent the arrangement from leading to overutilization of hospice.
OIG specifically noted that it was not saying hospices were free to offer inducements to patients. Although OIG does believe that the requirement to forego curative treatment reduces the effectiveness of most inducements, because most patients fundamentally do not want to elect hospice care, OIG does not mean that you can offer any inducement you want to a patient. OIG is only stating that in this case with the other safeguards noted, the need to forego curative treatment acts as an additional limitation on the remuneration and reduces the likelihood of overutilization of hospice.
This opinion provides additional insight into OIG’s thinking on the use of volunteers in hospice. The opinion makes it clear that OIG thinks these volunteer programs implicate the federal fraud and abuse laws, although OIG appears to have some comfort level with these programs when appropriate program safeguards are in place. Because of OIG’s apparent comfort level with this particular program, the opinion opens the door to the use of volunteer services programs as a means to expand the provision of services into the community. This opinion is not a green light to simply start using volunteers to provide services to terminally ill patients who do not qualify for hospice. The letter specifically limits the opinion to the facts in the letter and can only be relied upon by the requestor. As such, you should seek competent legal advice before implementing a similar volunteer program to ensure that you are implementing it appropriately and in compliance with applicable law.