In a recent advisory opinion, the OIG stated that it would not seek sanctions against a hospital-based hospice agency for providing certain volunteer services to terminally ill patients who did not qualify for the hospice benefit. The OIG recognized that the volunteer services may ultimately influence the recipients to select the hospice, which was a possible Anti-Kickback violation and grounds for a civil monetary penalty under § 1128A(a)(5) of the Social Security Act. However, the OIG concluded that inducing referrals was not the intent of the hospice in creating the program and the program was structured to adequately protect against fraud and abuse.

The hospice’s program was designed to assist terminally ill patients who had one year or less to live, but who did not qualify for the hospice benefit either because they had more than six months to live or wished to continue curative treatment. Through the program, these individuals would receive non-skilled services from volunteers, including things like companionship, preparation of meals, and transportation in the volunteer’s own vehicle. Such services would only be provided in the patient’s home, and the program was not available to skilled nursing facility residents. The hospice agency planned to team with the hospital’s foundation to raise funds for the program’s first year of operation.  After the first year, if the hospital determined that the program fulfilled an unmet community need, the hospital would continue to pay for the program. Neither the hospice agency nor the hospital would include the program’s expenses on its cost reports.

The OIG pinpointed three aspects of the program that warranted against imposition of sanctions:

  1. The patient’s freedom of choice was adequately protected. The hospice agency was not going to market the program but was only going to provide information to local hospital case managers and, upon request, to physicians and family members. If a patient joined the program, he or she was given a packet that explained the right to choose a provider and included a list of all local home health and hospice agencies.
  2. The program’s expenses would not be passed to the Federal health care programs because the hospice certified that the costs would be maintained separately from its hospice program and from its base hospital’s expenses.
  3. The requirements to obtain the hospice benefit provided an adequate safeguard against overutilization. To obtain the benefit, patients must reject curative treatment and meet other eligibility criteria. Such a decision would not likely be based on the availability or unavailability of the proposed volunteer services, which were of relatively small monetary value.

Our Insight.  Your Advantage.  This OIG opinion ensures that those able and willing to provide volunteer services to terminally-ill patients are able to do so without fear of reprisal under the civil monetary penalty provision and Anti-Kickback statute. However, because a hospice-based volunteer program could increase patient referrals, any company contemplating such program should consider the facts relied on by the OIG and seek appropriate guidance before implementing the program.