The Department of Health and Human Services’ Office of Inspector General (“OIG”) has offered an opinion on providing a gift card to certain Medicare Advantage plan enrollees who complete specific steps in an online patient education program.
The full text of Advisory Opinion 22-16, including a statement of the facts considered by the OIG, can be accessed here: https://oig.hhs.gov/compliance/advisory-opinions/22-16/ .
It is our view that OIG’s conclusion is based upon the existence of all the factors in the arrangement. We expect that a different conclusion may be reached by OIG if one or more of those factors did not exist.
The following summarizes OIG’s legal analysis:
The arrangement implicates the Federal Anti-Kickback Statute because the gift card is remuneration that could induce enrollees to self-refer to a particular Medicare Advantage plan. Additionally, in some instances, the gift cards will be a cash equivalent because they are for a big-box store or retailer that is an online vendor selling a wide variety of items. Nonetheless, OIG concludes the arrangement presents a sufficiently low risk of fraud and abuse because:
- It is unlikely to increase costs inappropriate for federal healthcare programs and could have the opposite effect – improving patient safety and reducing inappropriate utilization, and they could also decrease federal healthcare program costs if successful.
- There is a low likelihood the arrangement would meaningfully influence a beneficiary’s choice of a MA plan because it is not advertised to beneficiaries who are not enrollees and the standard contract with Medicare Advantage Organizations prohibit including information about the gift cards in marketing communications to prospective enrollees. OIG acknowledges the program may impact re-enrollment, but OIG believes there is a broad range of factors that impact the decision to enroll. Additionally, the limited frequency and modest value of the reward creates limited risk of influence.
- The arrangement is unlikely to impact competition among healthcare providers. It does not referrals, recommendations, nor does it include information about any particular provider.
Should you need anything else on this topic or if you have a matter that you wish to pursue with the Department of Health and Human Services’ Office of Inspector General for an Advisory Opinion, please feel free to reach out to Matthew Babcock at firstname.lastname@example.org to discuss an engagement.