The U.S. Department of Health and Human Services (HHS), Office of Inspector General (OIG), issued a favorable Advisory Opinion (25-02) regarding a federally qualified health center’s (FQHC) proposal to offer to schedule primary care physician appointments for certain individuals who are already receiving non-medical help from the FQHC. This favorable opinion provides potential flexibilities to assist FQHCs in meeting their statutory and regulatory obligations to conduct “a broad range of culturally and linguistically appropriate activities focused on recruiting and retaining patients.”
Generally, FQHCs, designated under Section 330 of the Public Health Service Act (PHSA), provide medical services as well as various social and educational support services to underserved populations, regardless of their ability to pay. Here, the FQHC assists crime victims with replacing locks to address safety concerns and provides diapers, books, toys, and baby gear for children ages 0-5 at regular intervals.
Under the proposed arrangement, the FQHC would ask individuals receiving these non-medical services whether they saw a primary care provider within the last year. If not, the FQHC would provide a list of local primary care providers, including but not limited to the FQHC. Individuals could then request an appointment for primary care services with the FQHC or a different provider on the list. The FQHC would facilitate the appointment by making an electronic referral to the desired provider and by providing complete contact information to the individual as well as the desired provider.
While the proposed arrangement implicates the Federal Anti-Kickback Statute (AKS) and the Beneficiary Inducements Civil Money Penalty (CMP), OIG concluded that it would not impose sanctions against the FQHC because: (1) proposed safeguards reduce the risk of patient steering; and (2) facilitating access to primary care services is consistent with the FQHC’s obligations. Specifically, OIG noted:
- Eligibility is determined by an objective criterion (i.e., whether the individual saw a primary care provider in the past year or not);
- The list of participating primary care providers would include “any willing provider”, be organized alphabetically, and would not promote or emphasize the FQHC;
- Individuals are not required to use primary care services as a condition of receiving other non-medical services at the FQHC; and
- The proposed arrangement may increase access to health care services consistent with Section 330 of the PHSA.
Similarly situated FQHCs may find this favorable opinion helpful in their efforts to recruit and retain patients. As always, FQHCs considering similar programs should carefully assess compliance with AKS and CMP requirements.
A complete copy of Advisory Opinion 25-02 is available here.
Should you have any questions regarding the above, please contact the authors, the Garfunkel Wild attorney with whom you regularly work, or contact us at [email protected].
