OIG Opinion on Gift Cards for Completing the Apprenticeship Program

On August 19, 2022, the Office of Inspector General (OIG) published Advisory Opinion 22-16 (advisory opinion) in which it declined to impose penalties for an arrangement under which the plaintiff provides gift cards to patients to complete an e-learning program related to surgeries. The OIG concluded that while the arrangement would constitute prohibited compensation under the Federal Anti-Kribery Act (AKS) and Civil Monetary Penalties Act (CMP) beneficiary inducement prohibitions , it is unlikely to have an impact on competition between suppliers or on the selection of a particular supplier. supplier and therefore determined that the arrangement did not warrant the imposition of sanctions.


Applicant (Applicant) operates an online learning tool (Learning Tool) to educate patients about the risks, benefits and expectations of surgeries. Among other things, the learning tool educates patients about their respective diagnoses, non-surgical treatment options, and for patients who choose to have surgery, the learning tool provides information to help patients reduce postoperative complications. In a footnote, the OIG notes that the applicant is a recipient of a healthcare innovation award, and as part of this award, the CMS reviewed the learning tool and found that it was associated with a statistically significant decrease in certain measures of utilization and surgical costs. . Applicant enters into agreements with Medicare Advantage Organizations (MAOs) to offer the Learning Tool to their Medicare Advantage (MAO) enrollees. The applicant invoices the MAO per subscriber and per month. In particular, Applicant’s agreements with AAMs prohibit AAMs from including information relating to Applicant’s gift cards in AAMs’ marketing materials.

As part of the arrangement, Medicare Advantage enrollees receive a $25 gift card to a retailer for completing the first learning tool module and a survey. Registrants have the option of choosing different retailers from which to receive a gift card, however, each available retailer sells a wide variety of items. Use of the learning tool is voluntary and open to all AAM registrants. The provision of the Gift Card by the Applicant is not contingent upon the Enrollee undergoing surgery, receiving non-surgical treatment, or receiving any other treatment. Patients are only eligible for one gift card per year, regardless of the number of times they complete the learning tool or survey. According to the advisory, the applicant conducts regular audits to ensure registrants remain eligible and do not receive more than one gift card per year.

BIG Analysis

The AKS is a criminal law that prohibits knowingly and willfully offering, paying, soliciting and receiving “remuneration” (whether monetary or in kind) in exchange for the inducement or in exchange for referrals from items or services reimbursable by a federal health agency. care program. The beneficiary inducement component of the CMP prohibits offering money or services that are likely to influence a beneficiary of a federal health care program to choose a particular health care provider.

According to the OIG, the arrangement involves the AKS, but not the ban on inducing CMP recipients. The AKS is involved because providing gift cards to patients is compensation that could induce a patient to refer or select a particular Medicare Advantage plan offered by an MAO, which arranges for the provision of reimbursable items and services by the federal government. -funded health care programs. In addition, the OIG notes that gift cards are cash equivalents, which the OIG generally disfavors and noted in its 2020 regulations that they are not subject to Safe Harbor protection, to unless certain limitations apply which are not present in this arrangement. However, the OIG determined that the arrangement presented a low risk of fraud and abuse and decided not to impose penalties on the plaintiff.

The OIG identified the following safeguards in the agreement that led it to conclude that there is a low risk of fraud and abuse:

  • Because the learning tool is designed to educate enrollees about diagnoses, post-surgical care, and surgical alternatives, the arrangement was unlikely to increase costs for federal health care programs or result in a improper use. Instead, the OIG noted the possibility that the arrangement could reduce costs and usage.

  • The arrangement is unlikely to influence an individual’s choice of an MAO or MA plan because the value of the gift cards provided to enrollees is modest and the arrangement is only advertised to individuals enrolling with a participating MAO. The OIG also cited the contractual prohibition preventing MAOs from advertising the arrangement. Since the gift card may be provided annually, the OIG addressed the possibility that the arrangement may influence an enrollee to re-enroll with an MAO that participates in the arrangement rather than a non-participating MAO. The OIG has determined that other factors, such as bonuses, benefits, and MAO’s vendor network, are far more influential when it comes to re-enrollment decisions.

  • The Arrangement does not reference, recommend or include any information about any particular providers, practitioners, suppliers or services. Notably, the OIG emphasized that Medicare Advantage plans offered by MAOs are not providers, practitioners, or suppliers for the purposes of the Beneficiary Incentive CMP.

With respect to inducing CMP recipients, the OIG determined that while gift cards are clearly compensation offered to recipients, given that the learning tool does not reference or endorse any provider, vendor , practitioner, or service, and is therefore unlikely to influence a registrant’s selection of a particular provider, provider, or practitioner. The OIG further explained that even if the arrangement influenced a beneficiary’s selection of an MA plan, the arrangement would not go against the beneficiary’s incentive CMP because MA plans are not providers, practitioners or suppliers within the framework of the CMP.


The OIG Advisory Opinion builds on other recent OIG Advisory Opinions regarding Gift Cards (e.g., Advisory Opinion 20-08 and Advisory Opinion 22-04) and provides the healthcare community additional insight into the OIG’s vision on safeguards to be incorporated into innovative programs designed to educate patients.

As the OIG has pointed out, its advisory opinions are issued only to the requesters of the opinion and do not apply to any person or entity, and cannot be relied upon by any person or entity, and cannot be presented in evidence by anyone other than the plaintiffs. to prove that the individual or entity has not violated anti-bribery or other law.

Copyright © 2022 Robinson & Cole LLP. All rights reserved.National Law Review, Volume XII, Number 256

Michael N. Clark