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Posted by: Robert Markette The opinion was sought by another DME provider. The requestor provided home medical equipment, including home oxygen and sought an opinion regarding its practice of providing certain items to patients diagnosed with congestive heart failure. As you may know, Medicare requires an oximetry test to confirm a patients need or in home oxygen. This test cannot be performed by the provider who will supply the in home oxygen. The provider in this letter was providing patients diagnosed with congestive heart failure with a clinical assessment and an oximetry test. (For those of you who think this sounds familiar, OIG issued an opinion on a very similar arrangement last year.) The clinical assessment consisted of a subjective functional assessment; heart rate, respiratory rate, and blood pressure measurements; assessment of breath sounds and level of dyspnea; a check for peripheral edema, abdominal pain or swelling; and a medication profile and mobility analysis. The requestor also provided the patient with education regarding his/her condition and tips in the recognition and self-management of symptoms. Finally, as part of the assessment, the requestor would perform pulse oximetry tests on the patient while the patient was at rest, while active, and overnight. The requestor argued that such testing was appropriate, because it provided useful data about the patients breathing. They also noted that it could be days or weeks before and independent company was able to perform the patients oximetry test. The provider was not providing free home oxygen. These clinical assessment were potentially reimbursable by Medicaid or if performed by an IDTF, but the DME provider would not bill anyone for them. The DME provider would only perform these assessments on patients after they received a doctors order (for the assessment, but not a referral for home oxygen). The requestor would not advertise or market that it provided these free assessments and the patients would be advised that they were free to choose any provider for the supplies, equipment, or services they would ultimately need. In determining whether the free CHF assessment and oximetry testing was a valuable service, OIG again applied the reasonable beneficiary test. OIG opined that a reasonable beneficiary would believe that the CHF assessment and oximetry test was a valuable medical service that would speed access to home oxygen and lead to improved clinical outcomes. Thus, even though the assessment had a reimbursable value of $22.00, the beneficiarys perception made it a valuable service. In addressing whether the free service would be likely to influence the beneficiarys decision, the OIG recited the same factors it used in the last two free services opinions. OIG noted that the physician order for the assessment would be perceived as an endorsement of the provider; providing the free services gave the provider a chance to establish a relationship with the patient; once the relationship was established, the patient would likely choose the provider in the future; offering the services for free maximized the opportunity to initiate the relationship. For these reasons, the arrangement was likely to influence the beneficiarys decision. The final question was whether the provider should know the arrangement would influence the beneficiarys decision. The OIG noted that CHF patients are likely to need other services in the future; the requestor offered them free services; the requestor provided them in the home. These factors led OIG to conclude not only that the provider should know the arrangement would influence beneficiaries, but that the arrangement was calculated to generate business for the requestors. They did not mention it, but the free oximetry test provided the requestor with advance notice whether the patient would be eligible for home oxygen. Which helped the provider to further identify patients with a need for future services. Once again, we see OIG finding on offer of free services to beneficiaries to be a potential violation of the CMP and anti-kickback statutes. Because of the focus on the beneficiaries perception of value, it will be very difficult for any arrangement that gets your foot in the door before an actual referral for services, like free safety or other assessments, to pass OIGs scrutiny. Before you begin providing pre-referral in home services or assessments, you should seek the advice of counsel. The penalties for violating the CMP statute are quite steep. |
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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Copyright © 2008 by Home Care Law Blog Gilliland & Markette LLP. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement. | |
