The legal and regulatory issues related to ridesharing have been widely discussed for several years. As ridesharing companies aimed to fill a need in the market for general transportation, they recognized an unmet need in the non-emergency medical transportation ("NEMT") space as well. NEMT presents its own set of unique legal and regulatory issues. We published an article on this topic in October of 2016, and this article will serve as an update.
The use of ridesharing companies to provide NEMT has increased significantly since our 2016 article. Circulation, which offers a Health Insurance Portability and Accountability Act1- ("HIPAA"-) compliant, digital platform to coordinate NEMT for health care providers across the country, now has over 1,000 health facility clients and has added Lyft as a preferred partner, in addition to the organization's previous relationship with Uber.2 Not only are health care facilities participating in ridesharing initiatives, they are buying into the trend – Circulation received $10.5 million in financing from health care leaders across the nation, including Boston Children's Hospital, Echo Health Ventures (a strategic collaboration of Cambia Health Solutions and Mosaic Health Solutions), Intermountain Healthcare Innovation Fund (a strategic investment vehicle of Intermountain Healthcare, managed by Healthbox), Humana, NextGen Venture Partners, and a healthcare diagnostics company.3
NEMT is an essential service to many individuals. The Kaiser Commission on Medicaid and the Uninsured noted in 2016 that NEMT was used most frequently to access behavior health services (including mental health and substance abuse treatment), dialysis, preventive services (including doctor visits), specialist visits, physical therapy/rehabilitation, and adult day health care services.4 In addition to improving access to care and decreasing no show rates, the use of ridesharing services as NEMT has the potential to reduce health care costs as well. According to a study conducted by the University of Kansas, more low-risk patients chose to call an Uber rather than to call an ambulance in case of an emergency. This choice reduced per capita ambulance volume by at least seven percent (7%).5
Despite its benefits, ridesharing NEMT poses risks as well. Ridesharing companies are aware of the regulatory hurdles and are taking action to protect their interests in the NEMT space. In September of last year, Uber hired a Washington D.C. lobbyist to advocate for certain health care and medical-records privacy policies that would benefit the NEMT industry, including HIPAA and compliance matters.6
Providers partnering with NEMT companies should beware of additional regulatory hurdles, particularly fraud and abuse concerns if providers offer these services at little or no cost to federal program beneficiaries. Potential violations of the Civil Monetary Penalties Law ("CMP") and the Anti-Kickback Statute ("AKS") could be alleged for the provision of these services.
AKS and CMP Final Rule
Prior to 2016, the Office of Inspector General ("OIG") had issued several advisory opinions on the topic of free or discounted NEMT.7 But on December 7, 2016, the OIG clarified its position when it released a Final Rule codifying new safe harbors to the Anti-Kickback Statute ("AKS") and new exceptions to the beneficiary inducement provisions of the Civil Monetary Penalties law ("CMP") to address transportation. The Final Rule went into effect on January 6, 2017.
The Local Transportation Safe Harbor protects free or discounted local transportation made available by an "eligible entity" to federal health care program beneficiaries as long as the following conditions are met:
- the availability of the transportation services is set forth in a policy applied uniformly and consistently and is not determined in a manner related to the past or anticipated volume or value of federal health care program business;
- the transportation is not provided via air, luxury, or ambulance-level transportation;
- the transportation is not publicly marketed or advertised, no marketing of health care items and services occurs during the course of the transportation or at any time by drivers, and drivers or others arranging for transportation are not paid on a per-beneficiary-transported basis;
- the eligible entity makes the free or discounted transportation available only to an individual who is an "established patient" of the eligible entity if the eligible entity is a provider/supplier of health care items/services and, if applicable, of the provider/supplier to or from which the patient is to be transported;
- the eligible entity makes the free or discounted transportation available only within 25 miles of the provider/supplier to or from which the patient is transported, provided that, if the provider/supplier is in a "rural area," the Final Rule extends that limit to 50 miles;
- the eligible entity makes the free or discounted transportation available only for the purpose of obtaining medically necessary items and services (although the Final Rule also affirms that transportation back to a patient's home is protected); and
- the eligible entity bears the costs of the free or discounted local transportation and does not shift the burden of such costs onto federal health care programs, other payers, or individuals.
Note that "eligible entity" includes any individual or entity, except for individuals or entities (or family members or others acting on their behalf) that primarily supply health care items (for example, durable medical equipment suppliers or pharmaceutical manufacturers) and "established patient" includes any person who has selected and initiated contact to schedule an appointment or who has previously attended an appointment with the provider/supplier in question.
The Final Rule also separately establishes protection under this safe harbor for shuttle services providing local transportation using a set schedule and route. Shuttle services must comply with all of the requirements described above, with two important exceptions: (1) shuttle services need not be operated in accordance with a policy that is applied uniformly and consistently, although implementation of such a policy may be advisable from a risk perspective, and (2) shuttle services need not be limited to established patients or for the sole purpose of obtaining medically necessary items and services (for example, employees and/or family-members may utilize the shuttles). A shuttle service must be local, however, and will qualify if there are no more than 25 miles between any stop and any location where health care items/services are provided along the shuttle's route (in urban areas or up to 50 miles in rural areas).
Additionally, the Final Rule amends the definition of "remuneration" under the CMP to shield remuneration that "promotes access to care and poses a low risk of harm to patients and Federal health care programs." Transportation two and from medically necessary health care appointments would be deemed to promote access to care. The Final Rule references the AKS Safe Harbor described above as the standard for "low risk" under the CMP, but states that a local transportation arrangement that does not meet all of the requirements of the Safe Harbor could still be considered low risk depending on the facts and circumstances.
From a reimbursement standpoint, the changes have not been significant. Traditional Medicare covers NEMT via ambulance only, and only when other means of transportation, such as a taxi or wheelchair van, would jeopardize the health of the beneficiary.8 Therefore, Medicare would not reimburse for Uber or Lyft NEMT. Some private Medicare Advantage plans may offer NEMT as a benefit; approximately one-fourth of the Medicare Advantage program's enrollees receive this benefit, which is most commonly available in $0 premium plans that focus on lower-income beneficiaries.9 The Department of Veterans Affairs offers mileage reimbursement and NEMT services for travel to health care and rehabilitation appointments for disabled veterans who meet certain criteria.10 The VA also provides transportation for family caregivers of veterans when certain criteria are met. For Medicaid patients, transportation for non-emergency medical visits is covered, although the extent of reimbursement depends on state rules. Private payor reimbursement would vary by plan. Although private payors generally do not cover NEMT services, there may be a movement to increase coverage of NEMT in the future, as payors see the cost saving impact of ensuring patients have access to health care services, and decreasing the necessity for ambulance usage. In May of 2017, Blue Cross Blue Shield ("BCBS") announced a partnership with Lyft whereby BCBS would incorporate Lyft services into an innovative service delivery model for select Blue Cross and Blue Shield companies – at no cost to members – in an effort to improve access to healthcare services in communities with transportation deserts.11 Perhaps Uber's recently hired lobbyist may way in to reimbursement advocacy, as well. Only time will tell.
For now, one thing is clear. The OIG made clear in its Final Rule what requirements must be met for the provision of free or discounted transportation to mitigate scrutiny under the AKS and CMP, which should give providers increased comfort in structuring these arrangements. If in doubt, providers may always seek advice from experienced legal counsel on proposed arrangements.
1 Health Insurance and Portability Act of 1996; Pub. L. No. 104-191.
2 Circulation and Lyft Partner for Non-Emergency Medical Transportation (2017), available here.
3 Jeff Lagasse, Intermountain, Humana, Boston Children's pitch in for Circulation's $10.5M round (July 25, 2017), available here.
4 MaryBeth Musumeci and Robin Rudowtiz, Medicaid Non-Emergency Medical Transportation: Overview and Key Issues in Medicaid Expansion Waivers (February 24, 2016), available here.
5 George Diepenbrock, Uber reduces ambulance usage in major cities, economists find (December 13, 2017), available here.
6 Cheryl Miller, Why Uber's Hired a Federal Health Care Lobbyist (January 18, 2018), available here.
7 See OIG ADVISORY OPINION NO. No. 00-7 (Nov. 24, 2000); OIG ADVISORY OPINION NO. 16-02 (March 1, 2016); OIG ADVISORY OPINION NO. 15-13 (Oct. 21, 2015); OIG ADVISORY OPINION NO. 11-02 (March 24, 2011); OIG ADVISORY OPINION NO. 11-01 (Jan. 10, 2011); OIG ADVISORY OPINION NO. 09-01 (March 13, 2009).
8 Centers for Medicare and Medicaid Services: Medicare Coverage of Ambulance Services (January 2017), available here.
9 Christopher Pope, Supplemental Benefits Under Medicare Advantage (January 21, 2016), available at https://www.healthaffairs.org/do/10.1377/hblog20160121.052787/full/
10 Benefits.Gov, Veterans Health Administration: Travel Reimbursement, available here.
11 Blue Cross Blue Shield Press Release, Blue Cross and Blue Shield and Lyft Join Forces to Increase Access to Health Care in Communities with Transportation Deserts, (May 10, 2017), available here.
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