On August 19, 2022, the Office of Inspector General of the Department of Health and Human Services (“OIG”) released Advisory Opinion 22-16 (“AO 22-16”) on its website, a favorable opinion finding that the OIG would not impose penalties under a program that offered $25 gift cards to Medicare Advantage plan enrollees ( “MA”) who have completed an online educational program about the potential risks, benefits and expectations of surgery. AO 22-16 is the latest in a series of recent OIG advisory opinions dealing with agreements involving compensation for beneficiaries of the federal health care program – the ninth such advisory opinion in 2022 alone.
The company that requested this advisory opinion contracts with Medicare Advantage Organizations (“MAOs”) to provide the educational program to MA plan enrollees and charges MAOs a monthly fee per member for the program. MA plan enrollees who complete the educational program and complete a survey receive a $25 gift card, which can be for a big-box store or an online retailer that carries a wide variety of items. The company offering the educational program sends letters and emails to MA plan enrollees regarding the educational program, but does not advertise or market the program to individuals who are not enrolled in an MA plan who entered into a contract with the company. MAOs do not have the right, under their contract with the company, to include information about gift cards offered under the program in marketing materials to potential candidates.
The program provides personalized educational information to MA plan enrollees who are facing possible surgery related to their diagnosis. The program, which consists of two modules (one for patients who may be faced with a decision regarding surgical or non-surgical treatment options soon or in the future, and the second for patients who have elected to undergo surgery surgery), is “designed to improve 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. $25 gift card is only available after completing the first module of the program, and registrants are not eligible for more than one $25 gift card per year. , does not recommend or contain information about any particular provider, practitioner, supplier, or service and only directs patients to contact their primary care providers for advice. Additional Information.
The OIG concluded that even though the program involved the Anti-Kribery Act (“AKS”) because the $25 gift card (which may be a cash equivalent) is compensation that could induce enrolled in the MA plan to refer themselves to a particular MA plan offered by MAO that arranges for the provision of federally reimbursable items and services, the OIG would not impose penalties on the provider of the educational program because the program has a sufficiently low risk of fraud and abuse under the AKS. In support of this conclusion, the OIG cited the following factors:
- The program is unlikely to increase federal health care program costs or cause inappropriate use and could actually reduce inappropriate use and decrease federal health care program costs if the program operates as intended. The OIG also noted the conclusion of CMS’s contractor that the program, which was funded in part by CMS through a healthcare innovation award, was associated with decreases statistically significant utilization and cost measures related to surgery.
- The program was not very likely to significantly influence a recipient’s selection of a particular MA plan, as the program is not advertised and MAO plans are prohibited by contract from including card information -gifts in marketing communications to potential candidates. The OIG noted that program gift cards may influence recipients to re-enroll with the same MAO in subsequent years, but concluded that many factors go into this decision and that the risk of influencing the decision to re-registration is reduced by the limited frequency and modest value of gift cards.
- The program is unlikely to have an impact on competition between healthcare providers, practitioners and suppliers, as the educational program only describes the different types of surgical facilities available and does not refer or endorse any provider. , practitioner, provider or particular service.
Further, the OIG found that the program did not even involve the provision of the Monetary Civil Penalties Act that prohibits beneficiary inducements, Section 1128A(a)(5) of the Social Security Act (the “CMP on Beneficiary Incentives”). The Beneficiary Incentives CMP provides for the imposition of monetary civil penalties on anyone who offers or transfers compensation to a beneficiary of Medicare or a state health care program known to them. or should know. is likely to influence the beneficiary’s selection of a particular provider, practitioner or supplier for the ordering or receipt of any item or service for which payment may be made, in whole or in part, by Medicare or a state health care program. In this advisory opinion, the OIG concluded that the compensation paid to MA plan enrollees is not likely to influence an enrollee’s choice of a particular provider, practitioner, or supplier since the program does not mention or recommend no provider, practitioner, supplier or service. Additionally, the OIG noted that because gift cards could influence Medicare beneficiaries to reselect the particular MA plan that offered this program in future years, the beneficiary incentive CMP does not does not apply to MA plans as they are not a provider, practitioner, or provider for the purposes of the CMP Beneficiary Benefits.
Although the applicability of any OIG advisory opinions is limited to the particular arrangement under consideration by the OIG and the particular claimant and may not be relied upon by others, the factors set forth by the OIG in AO 22-16 and other advisory opinions involving compensation of recipients may be useful in assessing how the OIG might consider other arrangements involving compensation that exceed the $15 limit used by the OIG to define face value items and services as part of the CMP Recipient Incentives and that do not otherwise fit within an AKS Safe Harbor or Exception CMP Recipient Incentives.