No Fraud Waivers Contemplated
On February 14, 2019, CMS’ Innovation Center announced its Emergency Triage, Treat, and Transport (ET3) Model for EMS / ambulance suppliers to partner with other health care providers such as telehealth entities and urgent care centers in order to triage and treat Medicare beneficiaries more effectively. In response to a recent inquiry, the ET3 Model Help Center clarified that at this time, CMS does not plan to issue fraud and abuse waivers for the ET3 model. Additional information about model requirements associated with new payments for ambulance suppliers, including legal requirements and waivers, will be released in the anticipated Request for Applications to be issued in the summer of 2019. Accordingly, in negotiating with health care providers, the EMS suppliers will likely need to abide by the usual requirements against arrangements that violate the Anti-Kickback Statute (“AKS”) and the Stark Law.
Stark Law and AKS
If an ambulance supplier knowing and willfully solicits or accepts payments or benefits for referrals or for otherwise generating Medicare or Medicaid business, assuming the conduct does not fall into one of the safe harbors, that conduct can violate the criminal Anti-Kickback Statute (AKS). 42 USC § 1320a-7b(b). Similarly but without the necessity of criminal intent, the Physician Self-Referral law, 42 U.S.C. § 1395nn (the Stark Law), prohibits any person or entity from presenting or causing to be presented any claims for payment to Medicare for “designated health services” (DHS) provided to patients who were referred by a physician with whom the entity that provides the DHS has a financial relationship, except for those recognized exceptions to the Stark Law. Medicare payments are not permitted for services rendered in violation of the Stark Law. Violations of the Stark Law and the AKS can form the basis of a False Claims Act case.
For the first time, the Medicare program will reimburse EMS suppliers for treating beneficiaries in-place and transporting emergency patients to alternative destinations like urgent care centers or physician practices rather than emergency departments. The new ET3 model will allow participating ambulance suppliers and other health care providers to work together to deliver treatment in-place (either on-the-scene or through telehealth) and with alternative destination sites (such as primary care doctors’ offices or urgent-care clinics) to provide care for Medicare beneficiaries following a medical emergency for which they have accessed 911 services. Additionally, the model will encourage development of telephonic triage centers for low-acuity 911 calls in regions where participating ambulance suppliers and providers operate. The ET3 model will run for five years and start in 2020.
While continuing to pay for 911 transports under the current system, the ET3 model will test two new ambulance payments circumstances:
- Payment for treatment in place with a qualified health care practitioner, either on-the-scene or connected using telehealth; and
- Payment for unscheduled, emergency transport of Medicare beneficiaries to alternative destinations (such as 24-hour care clinics) other than destinations covered under current regulations (such as hospital emergency departments).
Qualified health care practitioners or alternative destination sites that partner with participating ambulance suppliers would receive payment as usual under Medicare for any services rendered.
The model will use a phased approach in regions across the country. CMS wants the EMS participants in the ET3 Model to partner with participants in the delivery of emergency care such as cities, counties, doctors, telemedicine centers, and urgent care facilities.
CMS will release its Request for Applications in summer 2019 to solicit participation from Medicare-enrolled ambulance suppliers and providers. In Fall 2019, to implement the triage lines for low-acuity 911 calls, CMS will release a Notice of Funding Opportunity for a limited number of two-year cooperative agreements, available to local governments, their designees, or other entities that operate or have authority over one or more 911 dispatches in geographic locations where ambulance suppliers and providers have been selected to participate. For more information, visit the CMS ET3 website here.
For more information on Foley’s experience with Ambulance and EMS suppliers, visit Foley’s Health Care Industry Team.