Ridesharing Agreements Present Anti-Kickback Risks

Earlier this month, Uber announced the unveiling of a new service it has dubbed “Uber Health†which it describes as “a way to partner with healthcare organizations to provide reliable, comfortable transportation for patients.†The dashboard allows healthcare professionals to order rides for patients who either need to get to, or get home from, healthcare appointments.

Every year, around 3.6 million people – many of whom are low-income – miss their medical appointments because of transportation issues. The idea behind Uber Health is to ensure that patients (often those who are elderly or infirmed) get to their appointments.

Although the drivers will be able to see the patient’s name and phone number, Uber says the new platform is HIPAA-compliant because the data is “cordoned off†from the rest of Uber’s data and only a select few employees are given access. It should be noted that Uber was the target of a data breach that it kept secret for more than a year.

Uber Health’s features include the ability for coordinators to schedule rides on behalf of patients, caregivers and staff. Riders do not need a smart phone or app because it’s all done through text message. Organizations can keep track of what they’re spending on rides via reports that provide monthly billing statements, appointments, and scheduling information.

While the concept of providing non-emergency transportation services to patients is nothing new, healthcare professionals would be well advised to ensure that any arrangements made do not violate anti-kickback statutes. Under anti-kickback law, it’s illegal to solicit, pay or receive anything of value to get a referral.

The Department of Health and Human Services Office of Inspector General (OIG) has issued several Advisory Opinions acknowledging that free transportation arrangements are acceptable and beneficial, particularly in cases where these arrangements are narrowly tailored to address issues of financial need, limited transportation resources, treatment compliance, or safety.

In December, 2016, the OIG issued revisions to the Safe Harbors under the Anti-Kickback Statute and Civil Monetary Penalty Rules regarding beneficiary inducements.

The Local Transportation Safe Harbor protects free or discounted local transportation made available by an “eligible entity†to federal healthcare program beneficiaries as long as the following conditions are met:

• The availability of free or discounted local transportation services must be documented in a policy and applied uniformly and consistently. It cannot be determined in a way that is related to the past or anticipate volume or value of federal healthcare business;
• The local transportation services are not air, luxury, or ambulance-level transportation;
• The eligible entity does not publicly market or advertise the free or discounted local transportation services, no marketing of healthcare items and services occurs during the course of the transportation or at any time by drivers who provide the transportation, and drivers or others arranging for the 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 either: an established patient of the eligible entity providing the free or discounted local transportation, if the eligible entity is a provider or supplier of healthcare services; or an established patient of the provider or supplier to or from which the individual is being transported;
• Within 25 miles of the healthcare provider or supplier to or from which the patient would be transported, or within 50 miles if the patient resides in a rural area; and for the purpose of obtaining medically necessary items and services;
• The eligible entity that makes the transportation available bears the costs of the free or discounted local transportation services and does not shift the burden of these costs onto any federal healthcare programs, other payers, or individuals.

As ridesharing becomes more popular, it’s important to make sure that both the provider, as well as the ridesharing company, comply with all rules and laws. The Health Law Offices of Anthony C. Vitale can help healthcare entities better understand their legal obligations in complying with the law. Contact us for additional information at 305-358-4500 or send an email to info@vitalehealthlaw.com and let’s discuss how we might be able to assist you.