DHHS advisory opinion “has potential to disrupt emergency services”
Advisory Opinion 97-6, issued in October 1997 by the Office of the Inspector General (OIG) of the United States Department of Health and Human Services (DHHS), has the potential to seriously affect the efficiency and finances of emergency medical services throughout the country, according to major fire service organizations.
The OIG`s legal view is that “a hospital`s restocking of supplies and medicines used by municipal ambulances during patient transport to the facility would “likely violate federal and state abuse laws, specifically fitting squarely within the meaning of remuneration for purposes of the anti-kickback statute.” A letter cosigned by the following organizations was sent to the OIG in February: the International Association of Arson Investigators, International Association of Fire Chiefs, International Association of Fire Fighters, International Society of Fire Service Instructors, National Association of State Fire Marshals, National Fire Protection Association, and National Volunteer Fire Council (NVFC). In the letter, they proposed the establishment of a new “Safe Harbor provision under the Federal and State health care programs` anti-kickback statute, as solicited in the December 1997 Federal Register at 62 Fed Reg. 65049-65053, file code OIG-21-N.”
The letter points out that hospital resupply of emergency response ambulances promotes “substantial efficiencies, most notably permitting ambulances to expeditiously return to service, rather than having to return to a base station or elsewhere to restock” and “obviates potential public health risks, such as the need to store soiled linens from previous calls on board the ambulance until returning to base.”
Acknowledging that the Advisory Opinion has “limited applicability,” the organization-signees expressed concern “that hospitals already facing legal threats from many fronts might peremptorily terminate ambulance resupply programs. Given the significance of the public service benefits that hospital resupply programs offer, we thus strongly encourage DHHS to adopt a safe harbor provision that expressly permits hospitals to restock government provided and volunteer emergency response ambulances without fear that they may be violating federal fraud and abuse laws.”
The anti-kickback statute provides criminal penalties for individuals or entities that knowingly and willfully offer, pay, solicit, or receive remuneration to induce business reimbursed under the Medicare or state health care programs. The offense is classified as a felony and is punishable by fines of up to $25,000 and imprisonment for up to five years. This provision is extremely broad, with the types of remuneration covered specifically including kickbacks, bribes, and rebates made directly or indirectly, overtly or covertly, or in cash or in kind.
The NVFC is also working with Congressman Bob Ney (OH), who introduced legislation (H.R. 3247) in February that would provide a safe harbor for hospital restocking of certain ambulance drugs and nonreusable supplies under the anti-kickback statute.
