In Advisory Opinion No. 12-17, posted November 9, 2012, OIG concluded that a proposal by a non-profit, hospital-based hospice agency (“Requestor”) to provide non-skilled community services to terminally ill patients who do not meet the eligibility requirements for hospice services would not trigger sanctions under the patient inducement statute or the anti-kickback statute.  The Requestor proposes to establish a volunteer program to provide services including companionship, visitation, transportation in the volunteers’ personal automobiles, running errands, food preparation, respite for caregivers, and assistance with reading and writing to terminally ill patients who live at home, “but who do not qualify for hospice services either because they are projected to have more than six months to live or because they do not wish to renounce curative treatment.”

Under the proposed arrangement, the Requestor would employ a volunteer coordinator “to oversee the volunteers and communicate with the patients receiving the non-skilled services.”  Clients would be referred to the program from nearby hospitals, physician offices, and family members. 

OIG acknowledged that the volunteer program “could influence the patients to select the Requestor as their provider of hospice services in the future,” but concluded that the program “would be unlikely to influence patients to choose the [Requestor’s] Hospital for medical care.”  In any event, OIG concluded that there was low risk of fraud and abuse in Federal health care programs because of three factors.  First, the volunteer program would not be marketed within the community, and clients receiving services would receive information about all home health and hospice providers in the area.  Second, there would be no increased cost to Federal health care programs as a result of the program.  Finally, a patient’s decision to elect hospice care (once diagnosed with a life expectancy of six months or fewer) is unlikely to be based on the availability or unavailability of the volunteer services, but rather on the patient’s comfort with rejecting curative treatment.  For this reason, even to the extent that the program might constitute an “inducement,” there is low risk of overutilization of hospice services.

It is a measure of the breadth of the illegal remuneration statute that the Requestor felt it necessary to seek an advisory opinion on the basis of these seemingly benign facts.

A copy of OIG Advisory Opinion No. 12-17 is available by clicking here.

Reporter, Susan Banks, Washington, D.C., +1 202 626 2953, sbanks@kslaw.com.