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Ambulance Suppliers: CMS Is Not Planning to Issue Fraud Waivers for ET3

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.

Background

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.

© 2019 Foley & Lardner LLP

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About this Author

Pam Johnston, Trial Attorney, Foley Lardner Law Firm
Partner

Pamela L. Johnston is a partner and trial lawyer with Foley & Lardner LLP, where she is chair of the firm’s Government Enforcement, Compliance & White Collar Defense Practice, a member of the Securities Enforcement & Litigation Practice, and a member of the Health Care Industry Team. Ms. Johnston focuses in the areas of white collar criminal defense, False Claims Act and whistleblower actions, securities enforcement and other governmental enforcement actions. She represents companies and individuals in parallel civil and criminal proceedings involving a...

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Donald H. Romano, Foley Lardner, Of Counsel, Health Care Lawyer,
Of Counsel

Don Romano is of counsel and a practicing health care lawyer with Foley & Lardner LLP. Mr. Romano has extensive experience counseling hospitals, skilled nursing facilities and academic medical centers and health systems on compliance, reimbursement and litigation issues involving the complex array of federal regulations governing relationships with physicians. He counsels clients on payment issues relating to the Medicare and Medicaid programs, and regulatory compliance matters, particularly those pertaining to the Anti-Kickback Statute, the physician self-referral statute (Stark Law), HIPAA, and the Medicare enrollment regulations.

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Judith Waltz, False Claims Act Attorney, Foley Lardner Law Firm
Partner

Judith A. Waltz is a partner and business lawyer with Foley & Lardner LLP. Her practice focuses on government investigations, false claims act, corporate integrity agreements (CIAs), bankruptcy, and Medicare and Medicaid counseling. Ms. Waltz works with clients in various areas of the health care industry. She is former co-chair of the firm’s Life Sciences Industry Team, and former vice chair of the Health Care Industry Team. Ms. Waltz is also a member of the Government Enforcement, Compliance & White Collar Defense and Bankruptcy & Business Reorganizations...

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