This opinion regards the provision of a gift card to certain Medicare Advantage (“MA”) 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/ .
OIG determines that it will not impose administrative sanctions on the Requestor¹ in connection with the Arrangement.²
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 AKS because the gift card Requestor provides to Enrollees (who are Federal healthcare program beneficiaries) is remuneration that could induce Enrollees to self-refer to a particular MA plan (Medicare Advantage Organization – “MAO”) that uses the Program. Additionally, in at least 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, for the following reasons, OIG concludes the Arrangement presents a sufficiently low risk of fraud and abuse under the Federal AKS:
- The Arrangement is unlikely to increase costs inappropriate for Federal healthcare programs and could have the opposite effect. The aims of the program may have the effect of improving patient safety and reducing inappropriate utilization, and they could also decrease Federal healthcare program costs of the Program works as intended.
- OIG believes there is a low likelihood that the Arrangement would meaningfully influence a beneficiary’s choice of a MA plan because Requestor does not advertise the Program or the Arrangement to beneficiaries who are not Enrollees and the Requestor’s standard contract with MAOs prohibit the MAO from including information about the gift cards in the MAO’s marketing communications to prospective enrollees. OIG acknowledges that the Program may impact re-enrollment of Enrollees, but OIG believes there is a broad range of factors that impact Enrollees’ decision to re-enroll. Additionally, the limited frequency and modest value of the reward create a limited risk of influence. Requestor’s implemented safeguards to monitor and ensure compliance with features of the Arrangement were noted.
- The Arrangement is unlikely to impact competition among healthcare providers, practitioners, or suppliers due to the Program’s non-referral or non-recommendation and no inclusion of information about any particular provider practitioner, supplier, or service.
OIG concludes that the Beneficiary Inducements Civil Monetary Penalties (“CMP”) is not implicated, despite the provision of a gift card under the Arrangement that is remuneration to a Medicare program beneficiary. OIG determines that the remuneration provided is not likely to influence an Enrollees’ selection of a particular provider, practitioner, or supplier. To the extent that it may influence a particular MA plan, OIG notes that MA plans are not a provider, practitioner, or supplier for purposes of the Beneficiary Inducements CMP.
OIG Advisory Opinions are very fact specific and by their terms are limited to the facts presented, to the specific Requestors, and are subject to specific limitations set out in the Advisory Opinions.
The above is a high level summary and consultation with counsel is recommended for a fuller review and discussion of the Advisory Opinion.
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 email@example.com to discuss an engagement.
¹“Requestor” operates a shared decision-making, online learning tool that educates patients on potential risks, benefits, and expectations related to surgeries.
²“Arrangement” is a $25 gift card program that pays Medicare Advantage plan Enrollees when they complete an education module and survey. The Education module educates patients on potential risks, benefits, and expectations related to surgeries without referring Enrollees to specific providers. The module is designed to enhance the patient experience, increase patient literacy about surgery, reduce the incidence of inappropriate surgeries, and mitigate complications, errors, and infections for surgeries that do occur.