In OIG Advisory Opinion No. 22-16, the Office of Inspector General of HHS determined that an arrangement to provide $25 gift cards to Medicare Advantage enrollees for the purpose of promoting health literacy about surgical procedures would not constitute the basis for administrative sanctions under the federal Anti-kickback Statute or the imposition of sanctions under the Beneficiary Inducements CMP Law, which prohibits offering money or services that are likely to influence a Medicare beneficiary to select a particular health care provider, practitioner, or supplier.
The arrangement proposed a program to provide a $25 gift card to each Medicare Advantage enrollee who completes an online patient education program about the potential risks, benefits, and expectations regarding surgeries. The program would contain two modules, each of which would have three components. The first module would be intended to help patients understand their diagnoses and symptoms; educate patients about discussing their diagnoses with their care providers; and inform patients about non-surgical treatment options. The second module would be for patients who have already chosen surgery and would be intended to educate patients on various types of surgical facilities; prepare patients for surgery; and provide information on post-operative care, in order to reduce the chance of complications and facilitate the patient’s recovery.
The program would be designed to tailor the information it provides to each individual patient. To do so, a questionnaire would ask the patient a series of questions that about the patient’s clinical information, such as diagnosis, symptoms, personal risk factors and comorbidities, and whether the patient has already decided to have surgery. If the patient has already decided to have surgery, the program would not provide alternatives to the selected surgical procedure but would instead provide information on preparing for surgery.
An enrollees who participates and completes the first module of the program, along with a survey, would receive a $25 gift card to a retailer, which could be a big box store or an online vendor. The gift care could be used to purchase a variety of goods or services. Enrollees could use the program multiple times but would only be eligible to receive one $25 gift card per year. The gift card would not be contingent on undergoing surgery; pursuing non-surgical treatment options; receiving additional treatment; or demonstrating surgical literacy.
The program and gift cards would be available to all enrollees regardless of whether they are facing a decision about surgery. Use of the program would be voluntary, and the requester cited the health literacy value of patients having an understanding about surgical decision making, even in the absence of any imminent decision about surgery. Further, the program would be intended to generally increase healthcare literacy skills for making medical treatment decisions and preparing for medical procedures.
In analyzing the arrangement, the OIG determined that provision of the $25 gift cards to Medicare Advantage enrollees - who are federal health program beneficiaries – would constitute remuneration that could induce the enrollees to self-refer to a particular Medicare Advantage plan. Further the gift cards could be considered a cash equivalent, because they would be redeemable at big box or online vendors that sell a wide variety of items. Nonetheless, the OIG determined that the arrangement would present a low risk of fraud and abuse under the Anti- Kickback Statute for three reasons. First, it would be unlikely to increase cost or result in inappropriate utilization, because it would be designed to improve patient literacy regarding surgery, reduce the incidence of medically inappropriate surgeries, and mitigate surgical complications, errors, and infections. This could have the effect of improving patient safety and reducing inappropriate utilization, thereby decreasing federal health care program costs. Second, the OIG determined that the arrangement would be unlikely to influence a beneficiary’s selection of a particular Medicare Advantage plan because the gift care program would not be advertised to beneficiaries who are not existing enrollees, and the Medicare Advantage organization would not include information about the gift card program in its marketing communications to prospective enrollees. Third, the arrangement was found to be unlikely to affect competition among providers, practitioners, or suppliers, because it would not recommend any particular one.
In analyzing the arrangement under the Beneficiary Inducements CMP Statute, the OIG again noted that the gift card program would not refer to or recommend any particular provider, practitioner, supplier, or service and, in fact, would provide no information about any of them. Accordingly, although the gift card program would constitute remuneration, it would not be likely to influence an enrollee’s selection of a particular provider. To the extent the gift card could influence the beneficiary to select a particular Medicare Advantage plan, the OIG noted that Medicare Advantage plans are not providers, practitioners, or suppliers, under the Beneficiary Inducements CMP Statute.
In conclusion, the OIG determined that it would not impose administrative sanctions in connection with the arrangement under the Anti-Kickback Statute and the arrangement would not constitute grounds for the imposition of sanctions under the Beneficiary Inducements CMP Statute.
Jim Henry is a partner in the law firm of Phelps Dunbar LLP. He may be reached at firstname.lastname@example.org or 205-716-5257.