Why it's time to further expand Transportation Safe Harbor

In December of 2016, the Department of Health and Human Services Office of Inspector General (OIG) released a final rule outlining new safe harbors to the anti-kickback statute that allowed for free or discounted medical transportation. However, this final rule — known as The Local Transportation Safe Harbor — also created stipulations that dictate how health entities can implement, promote and administer a transportation benefit. One such rule states that a transportation benefit cannot be "publicly marketed or advertised" by administering health entities to patients not already established in their respective systems.

Fast forward to the present day. There are now several players in the NEMT vertical, hospital providers are starting to adopt covered transportation as a strategy for reducing no-shows, and the CMS is giving Medicare Advantage plans the green light to offer on-demand rides as a covered supplementary benefit.

But health plans and providers still can't promote their transportation benefits publicly — such as on web pages or via social media outlets.

Why? Because that would be considered an inducement and not be protected by Transportation Safe Harbor.

When HHS released this rule, healthcare providers commented directly on this specific provision of the Safe Harbor ruling. One commenter made the point that some patients are simply uninformed when it comes to knowing their benefits because, as the commenter pointed out, "they may be geographically isolated, elderly, have little means of communication, and are more likely to forego services they cannot afford." Another commenter proposed making a distinction between the terms "advertisement" and "solicitation." OIG disagreed with both of the commenters and declined to adopt their suggestions.

And still another commenter suggested that OIG make a bright-line distinction between "educational activities" and "marketing," saying rightly that "educational materials should not be considered marketing simply because they include a logo of a provider." The OIG responded that providers can communicate their transportation benefits to their own patients but any mention of it outside of a provider's internal patient ecosphere would be considered an advertisement and therefore, an inducement.

But do we have a responsibility to let transportation disadvantaged individuals know about these benefits, especially if they are "established patients" of a health entity that lacks a covered transportation benefit? 

Let's consider the facts here.

Each year, 3.6 million Americans miss out on medical care because of transportation barriers. Lack of access to rides for medical care has been correlated with avoidable hospitalizations, poor treatment adherence, and even premature death.

Since every care episode starts with a ride, transportation is a medical necessity and all-too-often becomes a barrier to someone receiving care. So, if transportation is a barrier, shouldn't an individual be allowed to choose a health system that offers on-demand rides?

But what happens when they have no way of finding out about the benefit?

Then, quite simply, we believe these individuals will be unable to make a truly informed decision based on their needs.

And what about when this information asymmetry leads to negative health outcomes and higher overall costs to the system?

We believe this could already be a reality for some, especially those who consume healthcare at a system that doesn't have a transportation benefit.

As such, it's time to expand Transportation Safe Harbor to give health plans and medical providers the option to promote their transportation benefit on public forums like on websites, in signage or on social media properties (sidebar: more than 40% of consumers say they found helpful health-related info on social media in the last year). The point is marketing can be educational, and for some people, it may be the only way to learn about a service that can solve their transportation woes and materially improve their access to care.

By making this change, we can better inform individuals of their options, incentivize them to shop for their care, and help reduce overall healthcare costs by the way of fewer missed appointments and better treatment adherence.

 Jon is Circulation's Director of Marketing.