HCBA Lawyer Magazine Vol. 28, No. 5 | Page 44

neeD a LYft? nemt riDesharing: uBer heLpfuL/uBer riskY Health Care law Section Chairs: T.J. Ferrante – Foley & Lardner LLP & Kevin Rudolph – Shriners Hospital for Children healthcare providers who wish to schedule and pay for transportation services for their patients O ver three million Americans miss or delay medical appointments each year because of inadequate transportation, 1 and an estimated 25 percent of patients miss an appointment because of lack of transportation altogether. 2 Ridesharing companies have identified a need to be met and are eager to break into the multi-billion- dollar non-emergency medical transportation (“NEMT”) industry. 3 As traditional public transit and taxi cab services are fraught with cancelations, delays, and lengthy travel time, ridesharing platforms appear to offer promising solutions to access and continuity of care issues, particularly for vulnerable patient populations with limited resources who often have the greatest need for medical care. Just as ride - sharing companies have aimed to fill a need in the market for general transportation, they see an opportu - nity in the NEMT space as well. Healthcare/NEMT partnerships are proliferating in 2018. In early March 2018, Uber announced its latest initiative, Uber Health, and Lyft announced a partnership with AllScripts and a separate partnership with Blue Cross Blue Shield, CVS, and Walgreens. Uber Health and Lyft’s partnership with Allscripts will allow providers to schedule — and pay for — 42 should be aware of potential regulatory hurdles. transportation for their patients, and Lyft’s partnership with CVS and Walgreens will offer Blue Cross Blue Shield members complimentary transportation to CVS or Walgreens pharmacies. While these novel transportation platforms have the potential to improve access to care, reduce barriers to healthcare access, and decrease no-show rates for providers, ridesharing NEMT poses significant legal and compliance risks as well. Healthcare providers who wish to schedule and pay for transportation services for their patients should be aware of potential regulatory hurdles, particularly fraud and abuse concerns if providers offer these services at little or no cost to federal program beneficiaries. Providing these services could potentially violate the Civil Monetary Penalties Law 4 and the Anti-Kickback Statute 5 could be alleged for the provision of these services. Healthcare providers should endeavor to meet codified safe harbors to the Anti-Kickback Statute 6 and exceptions to the beneficiary inducement provisions of the Civil Monetary Penalties Law, 7 which address free and discounted transportation. In addition to Anti-Kickback Statute and Civil Monetary Penalties Law concerns, ridesharing NEMT poses Health Insurance Portability and Accountability Act (“HIPAA”) and cybersecurity risks as well. These ridesharing platforms will be accessible by providers online or integrated into a health facility’s existing electronic medical record system. Providers should consider potential cybersecurity exposure, including the risk for a breach of patients’ protected health information through the ridesharing platform, and whether the provider’s electronic medical record system could be accessed or hacked when linked to the ridesharing platform. While the logistical benefits to provider-coordinated and funded transportation may be significant, the risks may be too. Providers who are considering the use of ridesharing platforms to coordinate patient transportation should take into account all legal risks and ensure the relationships and transactions are structured to comply with all state and federal regulations. Richard Wallace et al., Access to Health Care and Nonemergency Medical Transportation: Two Missing Links, Transportation Research Record Journal of The Transportation Research Board, Jan. 2005, at 76. 2 Samina T. Syed et al., Traveling Towards Disease: Transportation Barriers to Health Care Access, J. Comm. Health, Oct. 2013. 1 Continued on page 43 M AY - J U N E 2 0 1 8 | HCBA LAWYER