OIG: Housing Placement Arrangement for Seniors Does Not Give Rise to Sanctions

by King & Spalding
Contact

The HHS Office of Inspector General (OIG) recently issued a favorable Advisory Opinion (No. 14-01) regarding a contractual arrangement under which a placement agency receives a per-resident fee for referring new residents to certain senior living communities.  OIG concluded that, while the arrangement could lead to prohibited remuneration under the anti-kickback statute under certain circumstances, it did not constitute grounds for imposing sanctions. 

According to the Advisory Opinion, the requestor (the “Parent Company”) is a nonprofit corporation that owns and controls eleven senior residential communities, two skilled nursing facilities, and a management company that negotiates contracts and provides other management services for the Parent Company.  The majority of the residents at the Parent Company’s residential communities, according to OIG, pay for rent and services themselves or receive coverage under private insurance.  OIG further noted that, outside of the small percentage of residents of the Parent Company’s residential communities who receive coverage for services under a specific state Medicaid waiver program, the company’s skilled nursing facilities are the only affiliated entities that provide services reimbursed under federal health care programs.

The arrangement at issue involves contracts between two of the Parent Company’s residential communities and an independent placement agency specializing in senior housing (the “Placement Agency”).  Under the arrangement, the Placement Agency “promote[s]” available housing at the two residential communities and coordinates the placement of new residents there.  For each new resident placed at one of the communities through the Placement Agency, the arrangement provides for the payment of a fee to the agency.  The fee is calculated based on a portion of each new resident’s charges during his or her initial stay, usually one or two months.  OIG noted that the fee does not take into account charges to federal health care programs, such as Medicare.  OIG also noted that the underlying contracts prohibit the Placement Agency from referring new residents to the participating residential communities “who are known to rely, in whole or in part, on Medicaid, Medicare, or other state or federal funding sources” and that the participating residential communities cannot accept such new residents from the Placement Agency.

Based on four factors, OIG concluded that the arrangement poses a low risk of improper payments for referrals under the anti-kickback statute, and, accordingly, does not constitute grounds for OIG sanctions.  First, the fee paid to the Placement Agency is not calculated on the basis of any charges to federal health care programs—rather, it includes only initial rent and services paid for by the referred resident.  Second, the underlying contracts prohibit the Placement Agency from referring, and the residential communities from accepting, residents who rely on funding from government health programs.  Third, the Placement Agency does not refer residents for housing or services payable by federal health programs (e.g., services provided by skilled nursing facility staff).  Fourth, the Parent Company certified that its affiliates—i.e., the residential communities, skilled nursing facilities, and management company—do not track referrals among them, nor do they place limits on a resident’s ability to choose a particular provider of health services.

A copy of OIG’s report is available here.

Reporter, Greg Sicilian, Atlanta, +1 404 572 2810, gsicilian@kslaw.com.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© King & Spalding | Attorney Advertising

Written by:

King & Spalding
Contact
more
less

King & Spalding on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.