1. 2016 ICAHN COMPLIANCE OFFICER WORKSHOP Stuart J. Vogelsmeier, J.D. May 26, 2016

2. Disclaimer ICAHN and Lashly & Baer, P.C. are providing this material for informational and educational purposes only. Healthcare providers should contact their legal counsel for assistance.

3. Perks and Freebies: Fun or Fraud? Everybody likes to give Everybody likes to receive Everybody does it so it must be ok Phrase of the Day: “No good deed goes unpunished”

4. Offers to Patients-What is Allowed? Civil Monetary Penalties Law: Prohibits offers or transfers of “remuneration” (there’s that big word again) To Medicare/Medicaid Patients If Provider “knows of should know” it will influence patient choice

5. CMP Law Key Points: What is remuneration? Something free or less than Fair Market Value Is there a Medicare/Medicaid patient? “Should have known”-don’t play dumb!

6. CMP Penalties $10,000 per item of service Exclusion from Medicare/Medicaid

7. Can We Give Anything to Patients? Nominal Value-$10 per item and $50 total per year Preventive Care Exception-incentive tied to promoting preventive care and not tied to other services paid by Medicare/Medicaid See U.S. Prevent Services Task Force Guide to Preventive Services

8. What Other Offers? Co-Payment Waiver-When Can A Hospital Waive? Not Advertised Not Routine-Based on Patient Financial Only after good faith collection effort What is good faith?

9. What else? Assistance to Needy Not advertised Incentive not tied to other services Good faith determination of need

10. Assessing the Risk Over-Utilization Skewing selection of provider based on value of inducement instead of quality of care Creating competitive disadvantage for provider who can’t afford to provide incentives

11. Does the patient benefit? Promote awareness of health risks and resources Promote access to care Promote patient adherence to treatment regimen Reduce cost of care Engage at-risk populations

12. What has been approved? Medicaid Mothers/Children Preventive Care Receive of diapers valued at $5/pack Portable Crib $50 Required enrollment in maternal infant health program and complete all 10 visits Fit within $10/$50 Encouraged preventive care

13. What has been approved? FQHC offers $20 grocery gift care for Medicaid patients who participated in screening exam Gift care not redeemable for cash Not advertised unless patient had relationship with FQHC

14. What has been approved? Transportation services $10/$50 Local-1/4 mile on or near hospital campus Hospital Van Few local options No advertising Cost not claimed on Hospital’s cost report

15. Local Transportation Safe Harbor was proposed in 2014 for Local Transportation 25 mile cap No luxury service No ambulance transport No air transport

16. Local Transportation No Advertisement No marketing of other service during transport Only for established patient Within local area of health care provider Cost is not reported on cost report Safe Harbor has not been finalized

17. What else has been approved? Educational video from home health agency to orthopedic patients Video sent day prior to surgery Agency not mentioned in video Patient does not receive video until surgeon has referred case to agency. Content of video widely available on internet

18. What do you think? Limousine transportation to and from home What’s the cost? What’s the intent? Will it influence choice? How does the patient benefit? Other examples

19. What do you think? Health fair at local mall Includes blood pressure screening, balance testing What if other providers are on the follow-up list?

20. What do you think? How about an App? Medication reminders What’s the value? What are we trying to encourage?

21. What do you think? Cell phone to drug addicts or HIV patients to promote adherence to a drug regimen Text reminders What about chronic disease such as asthma or diabetes? Should the diagnosis matter?

22. Cell Phone Example Cont. Would you change your analysis if the cell phone is disconnected if patient does not respond to text? What about a temporary iPad to provide medication reminders, remote monitoring and other functions during an episode of care? Does it matter if the patient can use the device for other reasons?

23. What would you want to show? Purpose of incentive is to facilitate care All classes of patients Does it affect a patient’s informed choice? Does it encourage adherence to treatment? Does it encourage preventive care?

24. Other “good” facts: Incentive doesn’t increase cost of care (what does the cost report say) Is the cost nominal? Is the incentive targeted to the population in need? Is the patient’s health likely to improve? Is there a public health benefit (e.g., vaccines)?

25. What can a provider receive? Anti-Kickback and Stark revisited? Is there a referral relationship? Is there something of value being exchanged? Are there Medicare/Medicaid patients? Is there intent?

26. What Can a Provider Receive? When in doubt, say “No Thank You” Don’t forget the Eye Test Industry Ethical Codes

27. What can a provider receive? Events/Trips-Use the Eye Test Computers and Technology: Is it available for personal use? What if your lawyer offers to take you to the Cardinals-Cubs game?

28. Conclusions Questions Thank You