The Office of the Inspector General (the "OIG") posted new Advisory Opinion 09-03 on April 30, 2009, which concerns an arrangement whereby three municipalities reciprocally waive the otherwise applicable cost-sharing obligations of individuals residing within each other's borders when providing backup emergency medical services transportation.
Based on the facts presented, the OIG concluded that: (i) the Proposed Arrangement would not constitute grounds for the imposition of civil monetary penalties under section 1128A(a)(5) of the Act; and (ii) while the Proposed Arrangement could potentially generate prohibited remuneration under the anti-kickback statute, if the requisite intent to induce or reward referrals of Federal health care program business were present, the OIG would not impose administrative sanctions.
Favorable factors leading to the OIG's determination that the risk of the arrangement was minimal were as follows:
• First, the arrangement does not involve the routine waiver of cost-sharing obligations.
• Second, because the arrangement does not involve the provision of routine, non-emergency transportation services, but is instead limited to backup EMS transportation, it does not increase the risk of overutilization and is unlikely to lead to increased costs to Federal health care programs. Further, neither the number of Federal health care program beneficiaries requiring EMS transportation within the geographic limits of the Requestors, nor the treatment the beneficiaries receive or require, is related to the existence of the arrangement.
• Third, because each Requestor waives cost-sharing obligations when it provides EMS transportation, there is no expectation on the part of the individuals receiving the backup EMS transportation that they would have cost-sharing obligations. Therefore, Requestor's waiver of such obligations for the isolated instances in which it provides the backup EMS transportation is unlikely to induce the use of those or any other services.
• Finally, the underlying nature of the arrangement - including but not limited to: the fact that the waivers are not routine; the Requestors are local governments engaged in a mutual aid arrangement for backup EMS transportation; and the individuals receiving the waiver are, for all intents and purposes, simply being treated the same as any other individual in the Requestors' jurisdictions who receives EMS transportation - distinguishes it from arrangements in which a municipality requires a private company to bill "insurance only" as a condition of getting the municipality's EMS transportation business, including Medicare business.