value of the preventive health service itself or the future health care costs reasonably expected to be avoided as a result of the preventive care.


Other types of health screenings and other patient assistance programs may fall within the protection afforded by two of the new beneficiary inducement prohibition exceptions that were added by the ACA and implemented in final regulations that became effective on Jan. 6, 2017.


One exception that may prove useful protects “remuneration that promotes access to care and poses a low risk of harm.” Under this exception, an arrangement “promotes access to care” only if it “improves a particular beneficiary’s ability to obtain” care by, for example, removing barriers to access (but not rewarding a patient for obtaining care or rewarding patient adherence). Remuneration “poses a low risk of harm” if the items or services are unlikely to interfere with, or skew, clinical decision-making; are unlikely to increase costs to federal health care programs or beneficiaries


through overutilization or inappropriate utilization; and do not raise patient safety or quality of care concerns.


Another new and potentially useful exception to the beneficiary inducement prohibition is available for certain items and services provided to those in “financial need” (which must be determined on the basis of external evidence on an individualized basis but is otherwise undefined). To be eligible for this exception, there must be a “reasonable connection” between the items and services provided to the patient and his or her medical care; the arrangement may not be advertised; and the offer or transfer may not be tied to the provision of Medicare or Medicaid-covered services.


Conclusion Such exceptions require providers (and their attorneys) to make fine distinctions that are not necessarily intuitive. For example, what about providing free educational materials to patients or prospective patients? Can notepads, tote bags and similar items be provided


at an educational program? What if the event is a health fair that provides a Medicare-covered preventive health screening? Can patients be provided free parking? Under what conditions? Automobile child seats? Strollers? Health care apps? Coupons to purchase health care apps? If you want to provide free lodging and transportation to patients who have a financial hardship while they are receiving care, which exceptions might apply to what?


The distinctions are not intuitive or easy for providers—or for their attorneys. That’s the bad news. The good news is that those distinctions may be equally difficult for government regulators seeking to impose penalties for beneficiary inducement. In every case, then, adequate care must be taken to ensure that the patient-centered care you provide avoids the potential legal risks associated with it.


Disclaimer: This article is for informational purposes only and should not be construed as legal advice or a substitute for specific legal counseling.


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