March 29, 2011



I treat many patients with reduced mobility. I would like to provide free transportation for them. Can I do this?


Dr. A


Depends. Under certain circumstances the Office of the Inspector General ("OIG") may potentially identify free transportation as part of "fraudulent or abusive schemes that lead to inappropriate steering of patients, over-utilization, and the provision of medically unnecessary services." As part of its authority being responsible for protecting the integrity of federally funded healthplans, as well as the health and welfare of the beneficiaries of those programs, the OIG issues opinions identifying arrangements which may run afoul of applicable regulations.

In OIG Advisory Opinion No. 09-01, issued March 6, 2009, elements of a potentially abusive free transportation program were identified. Examples included:

The common theme of the examples above is potential for improper inducements for treatments. OIG is concerned about potential violations of the anti-kickback statute, which makes it a "criminal offense knowingly and willfully to offer, pay, solicit, or receive any remuneration to induce or reward referrals of items or services reimbursable by a Federal health care program." Social Security Act. s. 1128B(b).

In determining whether free transportation qualifies as a kick-back, OIG sets forth the following analytical factors it may consider, including whether:

With the anti-kickback statute, there is oftentimes no bright line rule defining when an activity is potentially abusive, as is the case with free transportation. If your practice is providing or will be providing free transportation, I recommend that you consider the above elements and also seek the advice of a healthcare attorney to obtain a regulatory compliance review, especially as penalties for non-compliance may be severe (felony punishable by a maximum fine of $25,000, imprisonment up to five years, or both). Id.


For additional information on this topic, contact Jennifer Kirschenbaum at (516)-747-6700 ext. 302 or at


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