Travel Assistance, Patient Financial Responsibility, and Good Intentions

October 7, 2019

Last week was the annual Moments of Change conference at The Breakers Hotel in Palm Beach. A beautiful venue for a long-running gathering of providers, clinicians, and industry representatives.

The question which I heard most repeatedly asked on the exhibit floor or in breakout sessions pertained to how to assist patients (I don’t call them “clients”) and their families with the exorbitant out of pocket costs of obtaining quality treatment, such as the cost of travel. In many providers’ minds, financial barriers like this should not prevent a patient from obtaining what is essentially life-saving treatment in a community known for its robust treatment community.

As a result of these financial hardships, providers have tried to find a way to facilitate travel from the patient’s location to their programs. This concept of “travel assistance” is quite controversial in the addiction treatment space because, no matter the intention of the provider, if that offer of “travel assistance” was the reason (inducement) for the patient to choose “x” treatment center, then it is very likely that law enforcement will view such assistance as a violation of the Patient Brokering Act.

In our 10 years working specifically with treatment providers, we have been repeatedly presented with this scenario and asked what is lawful. On our end, we have spent countless hours grappling with the need to develop policies and procedures to clarify, identify, and address compliance concerns regarding financial assistance for patients who have a bona fide financial hardship. Our conclusion to date has remained the same: while the law does not explicitly state that payment of airfare is a de facto inducement or violative of the plain language of the laws against patient brokering, and while we have heard and understand the reasoning provided and the procedure used by providers has been limited to very narrow and strict circumstances, the risk to the provider of arrest is simply too great. In other words, you will have to explain it to the jury, while in the meantime, your business reputation has been soiled in the press. If a provider is not going to 100% scholarship a patient, then any other extension of good-faith credit to a patient may be viewed as illegal by regulators and law enforcement.

Fair? Maybe not. Reality? Absolutely yes.

Stated otherwise, even if at no time was it ever a provider’s intention to sway (induce) the decision-making process of any patient to receive treatment services using travel assistance, and even if such travel arrangements were facilitated solely to provide those specific patients identified as having a bona fide financial hardship with reasonable access to critical addiction treatment services, in today’s environment, law enforcement is going to assume a criminal intent is at play based upon the dozens and dozens of arrests (and reviews of business records) that have been made.  It’s simply the “zero tolerance policy” world that we live in today, based upon the atrocities we have seen by the few who care less about patients and only care about profit.

In summary, while extending credit to a patient or their family who has been legitimately verified as not having the ability to pay may not violate the plain language of Florida’s Patient Brokering Act or the federal Eliminating Kickbacks in Recovery Act, the practice remains highly suspect based upon frequent past abuses uncovered by law enforcement. Therefore, a program that engages in such practices continues to expose itself to great liability of criminal penalties, fines, and damage to reputation.

We understand that many providers have as their overwhelmingly singular goal to provide access to those seeking help, recognizing that some are facing dire financial circumstances and may not at that time have the additional financial resources to travel to their chosen treatment provider. Notwithstanding these good intentions, extending credit to patients to facilitate travel costs, even with legitimate and good faith efforts to determine bona fide financial hardship and robust efforts to collect, is considered suspect and potentially violative of the law.  Accordingly, we continue to be unable to support any practice of providing travel assistance to patients in need.  Sad, but true.

We will continue to advocate for any best practice that connects patients with addiction health care providers, recognizing that the overarching policies behind the state and federal health care laws are often in conflict with present-day realities. Even the Centers for Medicare and Medicaid Services (CMS) has recognized this reality and has been vigorously exploring ways to revamp and rewrite these laws to meet 21st century health care delivery. See https://www.fiercehealthcare.com/payer/cms-impending-overhaul-stark-law-can-only-go-so-far-experts-say

But until then, the conservative course must be the one to follow, if addiction medicine is going to ever receive the due recognition it deserves as an integral part of our national health care model.

THE PURPOSE OF THIS EMAIL IS TO BE INFORMATIONAL AND EDUCATIONAL ONLY AND IS NOT INTENDED TO REPLACE LEGAL ADVICE OBTAINED FROM YOUR OWN LICENSED ATTORNEY. NO PERSON, ENTITY OR OTHERWISE MAY RELY UPON ANYTHING STATED IN THIS POST IN THE CONDUCT OF THEIR OWN AFFAIRS. ALL SUCH RELIANCE IS HEREBY DISCLAIMED AND REJECTED.

Jeffrey Lynne

Partner/Member at BMUL Law
Jeffrey C. Lynne is a South Florida native, representing individuals and business entities relating to licensing, accreditation, regulatory compliance, business structure, marketing, real estate, zoning and litigation pertaining to substance abuse treatment facilities and sober living residences. Mr. Lynne has been recognized across the region as a leader in progressive public dialogue about the role that substance abuse treatment has within our communities and the fundamental need and right to provide safe and affordable housing for those who are both in treatment for addiction and alcoholism as well as those who are established in their recovery.
Jeffrey Lynne

About Jeffrey Lynne

Jeffrey C. Lynne is a South Florida native, representing individuals and business entities relating to licensing, accreditation, regulatory compliance, business structure, marketing, real estate, zoning and litigation pertaining to substance abuse treatment facilities and sober living residences. Mr. Lynne has been recognized across the region as a leader in progressive public dialogue about the role that substance abuse treatment has within our communities and the fundamental need and right to provide safe and affordable housing for those who are both in treatment for addiction and alcoholism as well as those who are established in their recovery.

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